Decriminalisation of free expression
Since independence, Article 21 (1a) of the Namibian Constitution has proven robust enough
to ensure that, when tested in court, both pre- and post-independence law do not restrict the
right to free expression and media freedom. The SADC Protocol and AC Declaration will
provide additional armour to those challenging restrictions on free expression through the
courts. However, litigation is an expensive and time consuming process, and does not
prevent the passing of new laws that arguably contravene not only the constitutional right to
free expression and media freedom, but also the SADC Protocol and AC and ICT
Declarations that now serve to reinforce this right. A case in point is Section 212 of the 2004
Criminal Procedures Bill, which allows a court to summarily convict a witness who refuses to
divulge information without “just excuse”. “Just excuse” is an overly broad provision that, if
used to compel a journalist to reveal their confidential sources of information, may be
unconstitutional. Certainly Section 212 contradicts Article XV of the AC Declaration, which
states that media practitioners shall not be required to reveal confidential sources of
information except in terms of narrowly defined principles. A new media and communication
policy reflecting Namibia’s obligations in terms of the SADC Protocol and AC / ICT
Declarations should reduce the likelihood of such anomalies finding their way into law in the
first place.
National security and public interest
The AC Declaration lays down clear principles whereby information and expression can be
restricted on the grounds of national security and public order. As they stand, Namibia’s
security and secrecy laws currently appear too broad to comply with these provisions.
Similarly, some of these laws provide for restrictions in the public interest. This is a
convolution of the concept of public interest, as “public interest” usually overrides nondisclosure in favour of disclosure. Government and sections of civil society are currently at
odds over the extent to which restrictions on free expression and access to information are
justifiable in terms of national security. The constitutionality of seemingly broad security
legislation needs to be put to the test. Alternatively, stakeholders need to arrive at a common
understanding of the concepts of national security and public interest. Such an understanding
needs to be in line with the provisions of the SADC Protocol and AC Declaration, and policies
and laws could then be amended to reflect such a consensus.

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