Entitled What restrictions, if any, should be imposed on fundamental freedom of expression and press in a democratic society? A Look at Namibia.

Sisa Namandje
Student No: 9601686

Supervisor: Ms E K Cassidy
Due Date: 29 September 2000




Introduction The place of freedom of expression and press in Namibia Restrictions to fundamental freedoms of expression and press and the test employed by the courts

2 3


The right to dignity vis-a-vis fundamental freedoms of expression (the case of defamation)

5 6. 7

Freedom of expression vis-a-vis Independence of the Judiciary Respect of freedom of expression: where do we stand now? Conclusion

[Table of Contents inserted for PDF copy by e-librarian, 2004]


1. Introduction Namibia gained independence on the 21st of March 1990 and a constitution was also adopted the same day. Namibia by virtue of article (1) of the constitution is declared to be a democratic and secular state founded upon the principles of democracy, the rule of law and justice for all. However Namibia as a democratic country is in a process of continuous change; although that process includes phases of regression, it is also marked by long periods of advancement. The reference to a “democratic society” in this work therefore presupposes by its very nature, that restrictions on Rights and freedoms will be questioned whether to oppose such restrictions or in order to reduce them by steadily entrenching the advances achieved.1 Namibia having been declared a democratic state fundamental freedoms in its constitution, 2 ought to be respected and enjoyed unhindered, however the same constitution provides for restrictions, in this context, to fundamental freedoms of expression and press. 3 This work will therefore, as its purpose, investigate as to what restrictions to the said freedoms 4are permissible in a democratic society like Namibia.
1 2 3 4

Sandra Coliver pg 38 Under article 21 Sub-article (2) of article 21 Expression +press



The place of freedom of expression and press in Namibia

To highlight the importance of the fundamental freedoms of expression and press in Namibia, one of the eminent judges5 in Southern Africa remarked that: “ In the context of Namibia freedom of speech is essential to the evolutionary process set up at the time of independence in order to rid the country of apartheid and its attendant consequences. In order to live and maintain a democratic state the citizen must be free to speak criticize and praise where praise is due. Muted silence is not an ingredient of democracy because the exchange of ideas is essential to the development of democracy 6. Fundamental freedoms are contained in article 21 (1) and the said article is introduced with a phrase: “ All persons shall have the right to:” Article 21(1) provides for freedoms of speech and expression, which shall include freedom of press and other media. Sub-article (2) of article 21 however introduces a clawback to fundamental freedoms referred to in sub-article (1) of the same article, shall be exercised subject to the Law of Namibia, in so far as such laws impose reasonable restrictions on the exercise of the rights and freedoms conferred by the sub-article, which are necessary in a democratic

A. J. A Dumbutsena SV Kauesa 1995 supreme court of Namibia -4-


society and are required in the interest of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Further article 22 7 provides as follows: “ Whenever or wherever in terms of this constitution the limitation of any fundamental Rights or freedoms contemplated by this chapter is authorised, any Law providing for such limitation shall: (1) be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual; (2) specify the ascertainable extent of such limitation and identify the article or articles hereof on which authority to enact such limitation is claimed to rest” Having outlined the relevant constitutional provisions it is now clear that restriction to fundamental freedoms of speech and press could be permissible in a democratic society and in Namibia in particular. The question of this work is to establish as to what tests are to be used by our courts in establishing whether the restrictions should stand a constitutional challenge or not. It was once said 8 that free speech is vital for full and free discussion and indispensable
7 8

Entitled: Limitation upon fundamental Rights and freedoms Shimon Shetreet Pg 42 -5-

for a democratic government but it is not absolute. There are other vital social interests that qualify free speech. There is the interest of protecting the basic framework of society and the existence of the state and its institutions against its enemies from within and from without, the maintenance of public peace and public order the interest of a fair trial. Freedom of expression, no doubt, constitutes one of the essential foundations of a democratic society, and one of the basic conditions for its progress and for the development of every man. 3 Restrictions to fundamental freedoms of expression and press and

the test employed by the courts. Kauesa was an officer in the Namibian police he participated in a live TV broadcast chat show; He stated inter alia that white officers in the command structure of the police force were determined to undermine the government policy of reconciliation, facilitated corruption, abused their powers and had corroborated with traitors and terrorists by supplying police weapons to them. Kauesa was then charged in terms of police regulations 58 (32) under the police act, (Act 19 of 1990)-The regulation prohibited a number of the Namibian Police Force from commenting unfavourably in public upon the administration of the Force or any other government department. Before the purported departmental hearing was held against Kauesa, he applied to the High court challenging unconstitutionality of the regulation in terms of which he was charged.


3.1.1 Kauesa case: High court9 In the High court, the court in applying the test as to whether the restrictions imposed to freedom of expression of police men, by virtue of the regulation in question, it broaden the grounds on which freedom of speech could be limited by going beyond the qualifications contained in Article 21.(2) Hence the court held that freedom of speech could be limited by the common law rules of contempt of court, injuria, defamation and incitement, which contains their own reasonable limitations as opposed to sub article (2) of Article 21. The High court stated that freedom of speech can be limited by the fundamental rights relating to dignity, equality and non-discrimination

and legislation enacted in

accordance with the constitution and that corollary to these, was a prohibition on hate or racist speech which the court defined as speech inciting hatred and prejudice on the grounds of race, colour, ethnic origin, creed or religion. The court gave a number of reasons why “hate speech was not protected speech under the mantle of freedom of speech and expression: and they are as follows:(a) (b) it could lead to break down in public order; it can give rise to an atmosphere of race hate and insensitivity, fostering acts of palpable evidence and discrimination;

1994 (B) BCLR 1 (NMH) This aspect would be covered under 3.2: Smith case -7-


(c) (4)

that its effects is “to diminish or deny equality and dignity to the target of verification; and not only is it offensive but it causes real harm to the target group and to society as a whole, perhaps leading to discrimination and violence.

The court in the final analysis reasoned that freedom of expression while applied equally to both military or police and civilian society, the duties and responsibilities of the former requires that such freedom is exercised subject to the dictates of military and police discipline and to prevent disorder in the ranks. The court relied then, on the judgement of the European court of Human Rights in Engel v the Netherlands 11 and found that restrictions could reasonably be imposed on the applicant who as a police officer did not have an unlimited right to impugn the integrity of his colleagues and superiors and the maintenance of loyalty and discipline in the Police Force meant that penalties could be imposed on the abusive exercise of the freedom of expression. The court then found the regulation as compliant to article 21(1) and (2) of the constitution and thus constructional. The judgement was then subjected to an appeal in the supreme court and the supreme courts’s reasons and analysis are herewith outlined.


Ser A, Vol 22 (1976) -8-

3.1.2 Kauesa Case:

Supreme Court12

As mentioned under the High Court case, the court went as for as broadening the scope of restrictions provided for under Article 21 and included some extraneous considerations. The Supreme Court however limited its scope merely to the constitutional provisions regarding restrictions, The central issue the court was to determine was whether regulation 58 (32) constituted a permissible restriction on the right to freedom of speech of a serving member of the Namibian Police Force. Article 21 (1) (a) provides for permissible restrictions which fall in its ambit. It provides that “The fundamental freedoms .............shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of such rights and freedoms.................which are necessary in a democratic society and are required in the interest of the sovereignty and are integrity of Namibia, National security, public order, decency or morality, or in relation to contempt of court defamation or incitement to commit and offence. The court regarded itself as bound to interpret the limitation as per the guidance of the principles and values that are essential to a free and democratic society. In its own word it said;“the court in assessing the extent of the limitations to rights and freedoms, must be

Kauesa V Minister of Home Affairs and others (1995)NR175 -9-

guided by values and principles that are essential to a democratic and free society which respects inherent dignity, social justice and other such values”. In strengthening its reasoning in this regard the court quoted the statement by Dickson CJT in RV OAKES13 “the underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effects, to be reasonable and demonstrably justified”. Article 22 of our Constitution is directive in nature and provides that: “the legislation providing for limitations should not be aimed a particular individual and it should specify the ascertainable extent of such limitation and identify the articles hereof on which authority to enact such limitation is claimed to rest”. After looking at some foreign jurisdiction’s case the court held that “ what is important is that limitations to the right of speech must be both reasonable and necessary. This is why a striker interpretation of the restrictions is required with respect to this particular limitation. It is important that court ‘s should be strict in interpreting limitations to rights so that individuals are not unnecessarily deprived of the enjoyment of their rights” Using the reasonableness and proportionality test as formulated by Dickson CJC in

(1986) 26 DLR (4th) 200 -10-

Oakes supra, the court went on to determine as to whether the limitations by the regulations are nationality connected with the objective. Because of the broad way in which the regulation was phrased, it was found to be unfair and arbitrary for its objective was obscured by its overly breadth. The limitation was not found to be proportional to the objective as such it does not attain the particular effect which is justified by a sufficiently important objective. The regulation was then found to be inconsistent with article 21(1) and (2) of the constitution. It must be mentioned that the breadth of the limitation imposed by the regulation played a major role in the decision of the supreme court. It is now apparent that, the people have the right to speak their minds out without arbitrary limits except in cases where the speaker goes out of the way and makes statement that fall within the ambits of permissible restrictions under article 21 (2). 3.2. Sv Smith and others 15 In this case the four accused had been charged with contravening section 11 of the prohibition of racial discrimination Act 26 of 1991. The accused applied to the High Court to have the charges quashed on the ground that section 11 is contrary to article 21 of the Namibian constitution. Section 11 reads “(1) No persons shall publicly use any language or publish or

1997 (1) BCLR 70 (NM) -11-

distribute any written matter or display any article or do any at or thing with intent to -(a) threaten, ridicule or insult any person or group of persons on the ground that such person belongs or such group of persons belong to a particular racial group; or (b) cause, encourage or incite disharmony or feelings of hostility, hatred or ill-will between different racial groups or persons belonging to different racial groups; (c) disseminate ideas based on racial superiority” The court used the test as profounded in Kauesa case supra. The exceptions provided for in Article 21 (1) must be strictly interpreted. And as to when a restriction would be reasonable as contemplated in Article 21 (21) the supreme court stated at pg 14 of the judgement that: “ In this regard the principles of proportionality enunciated by the Indian Supreme court, the European Courts of Human Rights, the Canadian courts and the United States Supreme Court are expressed in the Namibian Constitution by the requirement that such restrictions must be reasonable. The court then went on and expressed its stance that the prevention of a recurrence of the type of racism and its concomitant practices which prevailed prior to independence in this country is a “sufficiently significant objective “ to warrant a limitation on the rights enshrined in 21 (1). This fact, however, the court held did, not justify restrictions with regard to groups of persons who never featured in the preindependence era of Namibia and were never part of or a party to the social fisure amongst the different people making up the population of this country that was occasioned by the erstwhile racist policies. The court found further that the definition of “racial groups” in the racial prohibition Act was not carefully designed to attain the -12-

objective in question. The court found section 11 of the Act not consistent with Article 21 (2) on the basis of the following reasons. (a) The section was not carefully designed to achieve the objective in question (proportionality test) my emphasis. (b) (3) The section does not impair as little as possible the right in question. It is disproportionate as it stifles and inhibits public debate on issues which are important to Namibia, for example, affirmative action and historical assessments. Having dealt with both the Kauesa and Smith the test employed by our court is early discernible and the debate as to whether there could be restrictions is settled. The answer is that restrictions could be imposed to fundamental freedoms of speech and expression provided that such restrictions are permissible within the ambit of Article (21) (2). The court are also directed to employ a restrictive and stricter interpretation in dealing with limitation to speech. In the following part of this work analytical outlook of the right to dignity vis-a-vis freedom of expression and judiciary independence vis-a-vis freedom of expression shall be done so as to give some guidelines how our courts have dealt with such cases.



The right to dignity vis-a-vis fundamental freedoms of expression

(the case of defamation) Article 21 (1) provides for the right to freedoms of expression and press subjects only to restrictions which are reasonable and necessary in a democratic society. On the other hand article 8(1) provides that “The dignity of all persons shall be inviolable” The main question, in this regard, is to what extent does one exercise his/her freedoms of expression and press without derogating to the rights to dignity of the other. In the case of Rinet -CarNAC V Wiggins16 the plaintiff a professional valuer instituted a defamation claim against a defendant who circulated a circular criticizing the plaintiff for his poor report. The court raised the constitutional questions of one’s Right to dignity and the other’s Right to freedom of expression and press. The court in Argus Printing and Publishing Co LTD. V Inkatha Freedom Party17 remarked that “ I agree, and I firmly believe, that freedom of expression and of the press are potent and indispensable instruments for the creation and maintenance of a democratic society, but it is trite that such freedom is not and cannot be permitted to be, totally unrestrained. The law does
16 17

Pg 562 BLCR 1997 No 4 1992 (3) SA 579 A at 588 -14-

not allow the unjustified savaging of an individuals’s right, which is just as important not to be “unlawfully” defamed. I emphasize the word “unlawfully” for in striving to achieve an equitable balance between the right to speak your mind and the right not to be harmed by another says about you, the Law has devised a number of defenses, such as fair comment, justification (truth + public benefits) and privilege which if successfully invoked render lawful the publication of a matter which is

prima facie defamatory. The resultant balance gives due recognition and
protection, in my view, to freedom of expression and press” In a bid to show the importance attached both to the right to dignity and the freedoms of expression and press, J Chaskalson in the case of S V Makwanyane and another 18 remarked. “The rights to life and dignity, are the most important of all human rights, and source of all other personal rights in chapter 3. By committing ourselves to a society founded on the recognition of human rights we are required to value those two Right above all other.” I also agree that: ‘ (i)n a system of democracy dedicated to openness and accountability, as ours is, the especially important role of the media, both publically and privately owned, must in my view be recognized . The success of our constitutional venture depends upon

1995 (3) SA 391 CC at 451 -15-

robust criticism of the exercise of power...It is for his very reason that the constitution recognizes the special importance and role of the media in nurturing and strengthening our democracy’. To consolidate the point that fundamental freedoms of expression and press may be subjected to the right to dignity and reputation, the court in National media Ltd and other V Bohoshi19 held that: “ the good reputation of the Individual represents and reflects the innate dignity of the individual, a concept which underlies all the charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.” But it must be remembered that courts have also made liberal judgements which are in favor of the broader freedom of expression. In Holomisa v Argus Newspapers Ltd, referring to South African Constitutional provisions with similar effects as that of Namibian Constitutional said: “The structure of s33(1) (b) in relation to the rights protected by s 15 strongly underscores this general conclusion. That provision requires that. To be permissible, a limitation on the speech and expression rights entrenched by s15, so far as they relate to free and fair political activity, must not only be reasonable, but also necessary in an open and democratic society based on freedom and equality”


1998 (4) SA 1196 (SCA) -16-

Whether the right one’s personal reputation or dignity yield to the another’s freedom of expression is a question of facts and the court would interpret the constitution by taking in to account many factors: This is supported in the case of S v Makwanyane and another 20 where the court said “ The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values and ultimately an assessment based on proportionality. This is implicit in the provision of s 33 (1). The fact that different implications for democracy and, in the case of our constitution, for an open and democratic society based on freedom and equality means that there is no absolute standard which can be laid down for determining reasonableness and necessity principles can be established, but the application of those principals to particular circumstances can only be done on a case -by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interest. In the balancing process, the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality is limited and the importance of that purpose to such a society the extent of the limitation, its efficacy and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question”.


1995(3) SA 391 (CC) at 436



Freedom of expression vis-a-vis Independence of the Judiciary

In a democratic society like Namibia , freedom of expression is accorded much importance, but on the other hand there are some other consideration which seem to be of much importance than freedom of expression. In this context, the debate as to whether the judiciary, in view of its constitutional protection, as independent, could be subjected to criticism is a matter of great interest. In Namibia the question was raised for the first time in the case of SV Heita and another. 21 In SV Heita supra it was recounted that members of a political party has made public threats against a judge for imposing what they had been lenient sentence in a treason trial. The trial judge

in the case supra, hinted that the independence of the judiciary is

absolute and cannot be subjected to criticism but only to the constitution and the law. Article 78 of the constitution provides as follows:(1) The judicial power shall be vested in the court of Namibia which shall consist of: (1) a supreme court of Namibia
21 22

1992 (3) SA 785 (NM) Judge Brian O’Linn


(2) (3) (2) (3)

a High court of Namibia Lower courts of Namibia The courts shall be independent and subject only to this constitution and the law. No member of the cabinet or the legislature or any other person shall interfere with judges or judicial officers in the excise of their judicial functions and all organs of the state shall accord such assistance as the courts may require to protect their independence, dignity and effectiveness, subject only to the terms of this constitution or any other law.

The question to be answered by this work is whether sub-article (2) makes the judiciary independence to such an extent that freedom of expression is strictly restricted in this regard. It was once stated that “in the context of the administration of justice, freedom of expression should be allowed the greatest latitude possible. This is particularly so in the case of comment critical of judges in their official capacity” 23 It is a fact that judicial decision affect citizens in every aspect of their lives and this might invite pleasant or harsh comments from some sectors of the society.

Argus Printing and Publishing Co Ltd and others v Essellen estate 1994 pg. 4


One of the legal writer has commented that “ Judges must be accountable to citizenry, firstly because, judges are an arm of the state, secondly their decision affect liberty, property, citizenship and reputation”24 Another commentator 25 on the independence of the judiciary stated that: “From the charge to the assize jury onwards, the judges authority as a state officer has put him in a position to deliver statements about conduct on behalf of society. As a spokesman for the community he purports to propound its requirements for the particular situations”. Power, public prominence and influence without accountability amount to despotism. As lord Devlin has said: “ It is a great temptation to cast the judiciary as an elite which bypass the the traffic laden ways of the democratic process. But it would only apparently be a bypass. In truth it would be a road that would never rejoin the highway but would lead inevitably to the totalitarian state”26 If judges in a modern state and democratic for that matter as Namibia thus wish to avoid a taint of incredibility, they have to be subject to public scrutiny of their functions . And a way has to be found to reconcile performance of judicial duties with
24 25 26

E Cameron pg. 252 John Bell- The judge as Bureaucrat 1987 Judges and Lawmakers (1976 39 modern LR 1 at 39 -20-

constitutional theory. In the Heita case supra Judge, O’Linn, dismissed the argument that the criticism of his decision is premised on the fundamental freedoms of expression and press under article 21, he referred to it as “a complete misconception “. He strengthened his argument by quoting sub-article (2) of article 21 which provides as follows: “The fundamental freedoms referred to in sub-article (1) hereof shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said subarticle, which are necessary in a democratic society and are required in the interest of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. At this juncture it would be proper to illustrate as to how the government of the day in Namibia has reacted to the criticism of the judiciary in light of the fundamental freedoms of expression enshrined under article 21. Following the demonstration by a political party supporters against a judge


statements made publically, the ministry of justice gave a statement expressing the government position on the matter. The substantial part of the statement is important to the theme of this work, hence it would be directly quoted .


After the judge delivered his sentence in a treason trial of same white treason accuseds , which was regarded as lenient -21-

The statement reads as follows: “The ministry of Justice, whose principal responsibilities are the administration of justice and the provision of an infrastructure which facilitates the practice of the rule of law, wishes to take this opportunity to state the position of the government on the events that followed the judgement delivered recently by Mr Justice O’Linn in the High Court treason trial.” The independence of the judiciary is absolutely sacrosanct and is without any qualification whatsoever - see art 78 (2) of our constitution which reads: “ The courts shall be independent and subject only to this constitution and the law”. This government is, accordingly, fully committed to live up to its constitutional duty to uphold and protect the independence of the Judiciary. We are equally fully committed to the citizens’s right to freedoms of expression - including the right ( and in some cases even the duty) to state a dissenting opinion on matters of general public interest. To t his end, we fully recognise the citizen’s right to express feelings of “surprise”, shock” etc to what they perceive (rightly or wrongly) as “ Light “ sentences in this particular case. We are happy to note that the judiciary itself fully supports this view as per the statement of judge president Strydom. “ An honest and temperate expression of dissenting opinion regarding, for example the potential topic of inequality of sentences, will not constitute contempt of court...” We, therefore, say yes to fair comment but definitely no to undue political and other pressures on members of the judiciary. The government is not here to defend a -22-

particular judgement and we do not seek to do so in this case; but it is our constitutional duty to defend the right of a judge to hand down a judgement free from any external pressures, guided by the facts and evidence placed before him or her. It is the right of citizenship and even government to differ with a particular judgement and even to state our disagreement publicly, but it is not our right as citizens or as governments to exercise that freedoms outside constitutional limits”. History was repeated again when the current Minister of Home Affairs Honorable
Jerry Ekandjo made public threat to foreign judges 28. But in Namibia we must boast, a an independent judiciary in comparison to some countries in the region.


Respect of freedom of expression: where do we stand now?

Namibia commitment to fundamental freedom of expression is based on principles of the multiparty democracy and chapter (30 of the constitution. As such Namibia has been described as having a conducive environment for media freedom. Despite a population of less than two (2) millions Namibia has a combined number of about ten newspapers. Southern Africa Media Directory 2000, 29 states that:Such as attack provoked heated public debate, the Minister later apologised to the Chief of Justice. However I personally believe that people could still express shock at decision which warrants expression of dismay.
29 28

MISA report/Directory pg 32 -23-

“Namibia has one of the most favorable media friendly constitutions in the region. It also established freedom of the press as a fundamental human right. Even the government owned newspaper, the New Era, exhibits objectivity not seen in most government owned publications in the South African region. There have been however, reported instances of government interference with the media, particularly in relation to the NBC. Certain government officials have suggested legislation in favor of media control, but this has thus far remained a talk show topic only”. More-over in a recent case of Stefanus Mahongo Muheto v NBC, 30 the High court demonstrated yet again the its commitment to respect of freedom of expression. In that case Acting Judge Manyara dismissed an application, which was brought to prevent the Namibia Broadcasting Corporation form publishing information that were allegedly defamatory of the applicant. The court held that the information was in the interest of the public, and that should the information be defamatory, the applicant can always have an action for damages, should the matter be prevented from being published, that would be the end of the matter for the NBC. It is also noteworthy that since the independence, there has never been reported harassment of journalists by the state.


Case A136/99 High court of Namibia judgement date 15 August 2000. -24-

7. Conclusion
While it is clear that Article 21 of our constitution, guarantee freedom of expression and press and subjects such freedom to restrictions as per subarticle (2), it remains a matter of specific circumstance of each case when the court looks interpret the restrictions. In determining the extent of an individual’s right to free speech the court must reach a balance between his or her interest and that of the state. In other countries, such as Canada , the court has looked at two issues in determining the reasonableness of restrictions, namely the public interest and the policy options exercised. Both issues however require that limitations be exercised with a degree of moderation and a sense of proportion. Under certain circumstances some of the fundamental rights and freedom may be limited in a state of emergency or national Defence. It is however clear that under no circumstances, except in terms of permissible restrictions under Article 21, can the state derogate or suspend freedom of expression and freedom of the press.


Bibliography 1. 2 3 4 5 6 7 8 9 Case Law C J Both 1996 statutory Interpretation 2nd Edition Juta 2 co, Ltd Constitutional Rights in Namibia by Naldi 11995 Juta co, Ltd. Free Speech and National Security, by Shimon Shetreet 1994 Maruins NIJ Hoff publishers Holsten et al 1995 Introduction to South African Law and Legal theory Bietterworths. The Interpretation of Fundamental Rights processions by Jocana stanens The Namibian Constitution (1990) Spitz, D “ Eschewing Silence Coerced by Law’ (1994) 10 SA J H R 301 Striking balance, Hate speech, freedom of expression and nondiscrimination 1994 by Sandra Coliver, Human Rights Centre, University of Essesc


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