Access to Receive, Impart and Seek …

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By Chilombo Mwondela Katukula Every time you watch a movie on your video/DVD machine, or even at the cinema, you are enjoying the right to freedom of expression under the Universal Declaration of Human Rights agreed to in 1948 at the formation of the United Nations. You are exercising your right to receive information. But that is only one component of the right to freedom of expression. Overall, the constitutions of almost each country in Southern Africa have enshrined the freedom of expression in their statutes. Article 19 of the Declaration states,t “Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of any frontiers.” In 1999 the head of Article 19, a UK NGO that has adopted the Article as its identity, referred to information as “the oxygen of democracy”. In a guide to principles on freedom of information legislation, Toby Mendel said: “If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they can not take a meaningful part in the affairs of that society.”. Information, he said, was an essential part of good government, while on the other hand, “bad government needs secrecy to survive”. In the promotion of democratic principles, Namibia intends to enact an Access to Information Law. Recently, Prime Minister Nahas Angula indicated that the government was ready to hear about a draft law and urged the MISA Namibia chapter to liaise with the Ministry of Information for collaboration. In this regard, Namibia is at the same stage as Tanzania and Botswana, all with the good intention of enacting a law to create access to information for the media and other stakeholders. Other countries in the Southern African region have gone a step further and already drafted Freedom of Information Laws, namely, Mozambique, Malawi, Lesotho, and Zambia. South Africa, Zimbabwe and Angola actually have the Access to Information legislation in place, but implementation has been cumbersome and in the case of Zimbabwe it faces technical difficulties that prevent effective utilisation of the law. Kandjii Kaitiri, freedom of expression coordinator at the Media Institute of Southern Africa secretariat, says the media has generally managed to impart information but there are problems with the “seek” element of Article 19. “Our governments in the region are still afraid of transparency, thinking that a law that allows access to information will uncover government secrets. However, many regional governments are now embracing the Anti-Corruption Act to stem the rise in white collar crime and protect their economies. “For the Anti-Corruption Act to be effective, it needs an Access to Information Law to be in place. This is so that whistle-blowers can be protected as well as making it easier for the general public to access documents that will reveal misdeeds or for the media to investigate allegations of corruption.” South Africa, with an Access to Information law firmly in place, is in the process of refining the implementation process. “The South African law is bulky and the process of acquiring information is cumbersome. There are also problems with classification of information that has to cover both the public and private sectors,” said Kandjii. But after the enactment of the 2003 Anti-Corruption Act in Namibia, media practitioners believe that the Access to Information Bill is the next step in order to lend credibility to the fight against corruption. “At the very least, there must be a start. We can take an example from South Africa, a vibrant economy with greater political volatility that has shown the way. Whatever problems come after can be resolved through the collaborative efforts of stakeholders,” said Matthew Haikali, MISA Namibia National Director. Article 21(1) (a) in the Constitution of Namibia enshrines the right to freedom of speech and expression in the following terms: “All persons shall have the right to: (a) freedom of speech and expression, which shall include freedom of the press and other media. However, restrictions are applied when Article 21 (2) says that: “The fundamental freedoms referred to in sub-article (1) hereof shall be exercised subject to the law of Namibia, insofar as such law imposes reasonable restrictions on the exercise of the rights and freedoms referred to by the said sub-article, 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.” Nevertheless, in the precedent of the Supreme Court case of Kauesa v Minister of Home Affairs the court stressed that any restriction upon a right or freedom protected in Article 21 (1) (a) is to be strictly interpreted and applied insofar as it is necessary for the specific purpose contemplated for the restrictions. In this context, the Supreme Court stated: “The court, in assessing the extent of the limitations to rights and freedoms, must be guided by the values and principles that are essential to a free and democratic society which respects the inherent dignity of the human person, equality, non-discrimination, social justice, and other such values.” In concluding, the court stated 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 in and maintain a democratic state the citizens must be free to speak, criticise 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.” In practice, Namibia has made remarkable and steady progress towards the road to a free and independent media. In a study on the relative freedom of the media in southern Africa, the country was third in the entire SADC region. The African Media Barometer, a study sponsored by FES, is a measure of Press Freedom in various African countries. The Namibian media environment was found to be largely conducive to unrestrained coverage of issues with little interference from the government. (This article is one in a series, commissioned by MISA Namibia, as part of the ASK Campaign, Having in mind the importance of public participation in the protection of their rights and, particularly, the right to freedom of information, it is widely accepted that there is a need to exert efforts towards raising public awareness. Only widely known and used laws on Freedom of Information can be effective in building democracy with strong civil society and in battling corruption.)

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