SUMMARY OF THE SADC PROTOCOL, THE AC AND ICT DECLARATIONS AND THEIR RELEVANCE TO NAMIBIAN COMMUNICATIONS POLICY AND LEGISLATION Introduction The Namibian Government has since independence in 1990 shown a great commitment to African unity and in particular regional integration within the Southern Africa Development Community (SADC). It is therefore no surprise that Namibia has ratified almost all the SADC and African Union (AU) Protocols and Declarations. These Protocols and Declarations are aimed at strengthening integration and unity and set certain standards of conduct and compliance for member States. The Namibian Constitution has been hailed as a model law because it, amongst other important provisions, protects the fundamental human rights and freedoms of citizens. International human rights treaties and protocols, such as those adopted by the AU and SADC, add flesh to and expand the existing rights of Namibian citizens. The Namibian Constitution is also unique in that it provides for the automatic application of international treaties in the domestic legal system, once they are ratified by Parliament. Article 144 of the Constitution provides that: “Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.” The SADC Heads of State approved the SADC Protocol on Culture, Information and Sport in August 2000. Although the Namibian Parliament ratified the SADC Protocol in December 2002 it is not yet operational because only eight of the required nine members have ratified the Protocol (see Annexure “A”). nd In October 2002, the 32 ordinary session of the African Commission on Human and Peoples’ Rights in Banjul, Gambia, adopted the Declaration of Principles of Freedom of Expression in Africa (“the Declaration”) to enhance the freedom of expression and access to information of the African people. The Declaration was adopted in terms of Article 45 of the African Charter on Human and Peoples’ Rights, which empowers the Commission to formulate and lay down principles and rules aimed at solving legal problems. Namibia has ratified the African Charter on Human and Peoples’ Rights and it has thus automatically become part of our domestic law and enforceable within our courts in terms of Article 144 of the Constitution. The Namibian Parliament is therefore under a legal obligation to ensure that the provisions of the Declaration are incorporated into our law and our courts are under obligation to express itself on any violation of the Declaration. The SADC Declaration on Information and Communications Technology (ICT) was adopted by the Heads of State and Governments in Blantyre, Malawi in August 2001. This is a declaration of intent and is not enforceable in Namibian courts. It however signifies the commitment of SADC States to develop good practice and create a conducive environment for the implementation of ICT policies, and should be regarded as authoritative guidance. The SADC Protocol will automatically form part of the law of Namibia once it becomes operational in the SADC region because it has already been ratified by Parliament. There is however nothing preventing the Namibian Government from implementing both the abovementioned Protocol and the Declarations in domestic law, because of its commitment to African unity, integration and the protection of human rights and freedoms. SADC Protocol on Culture, Information and Sport Principles and definitions The main aim of the Protocol is to harmonise policies on Culture, Information and Sports within the SADC region so that there could be better integration and cooperation between Namibia Media Law Audit – report final draft 8