NSHR’s Behaviour Is Questionable


It was brought to the attention of the Office of the Prosecutor-General that one Mr Phil Ya Nangoloh of the NSHR has been distributing press releases to the media concerning a pending (sub judice) court case which might constitute criminal contempt of court. These press releases that were also posted on the website of the NSHR are ‘Forced to Testify in Treason Case of 30 January 2006’ and ‘Another Indication of Tainted Testimony Surfaces in Treason Trial of 6 February 2006’. The aforesaid seems ironic as the NSHR claims that one of their overall objectives is, “To promote respect for the rule of law and independence of the judiciary.” Be that as it may, this is not the place to comment or to decide whether the press release (s) prima facie constitutes contempt of court or not and whether there should be a prosecution or not. The Namibian Constitution in Article 21 (1) (a) prescribes that all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media. It is however important to point out that this right should in terms of Article 21 (2) of the same Constitution, be exercised subject to the law of Namibia, insofar as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said paragraph, which are necessary in a democratic society and are required in the interests 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. Publishing information or comment concerning a pending (sub judice) court case which has the tendency to influence or prejudice the outcome of the proceedings or to interfere with the administration of justice … constitutes contempt of court. A case is pending from the moment of its commencement until it has been finally disposed of in the judicial process. In this regard, only a responsible exercise of one’s right to freedom of speech and expression, done in a manner that does not undermine the very important tenets of our constitutional order of upholding the rule of law, would therefore be protected speech. The whole concept of a fair trial presupposes a trial in which the court decides on issues before it on the basis of the evidence placed before it in an admissible way, and not on the basis of statements or opinions of the media or individuals who issue press releases for whatever reason. If anyone has information that he or she believes might affect the outcome of a pending trial, he or she should rather provide such information to the legal representatives of the accused who can make use of it in a legal manner and in court. Then its merits or demerits can be properly evaluated by the court itself. Then, and only then, will such person have, and promote, respect for the rule of law and independence of the judiciary. This should not be seen as an attempt to silence the NSHR or anyone else and to threaten criminal prosecution, but rather as an attempt to educate and to point out that a prosecution for contempt of court, should it become necessary, should in itself be seen and understood as another method of promoting respect for the rule of law and the independence of the judiciary. Chief Clerk to the Prosecutor-General