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. Namibia Media Law Audit – report final draft 38