WINDHOEK – Windhoek High Court Judge Harald Geier yesterday dismissed with costs an application by the Namibia Central Intelligence Service (NCIS) to prevent The Patriot newspaper from publishing details about its properties, including two farms and a residence in Windhoek West.
The costs that NCIS would have to fork out include for one instructing and one instructed counsel.
The NCIS dragged the newspaper and its editor, Mathias Haufiku, to court after Haufiku informed them through a text message that he intended to publish an article chronicling the manner in which the secret service is utilising the said properties, which was promptly followed by a letter by the government attorneys threatening legal action should Haufiku not refrain from publishing the article.
According to the NCIS, the article would compromise national security. After Haufiku refused to withdraw the article and sent follow-up questions to the government attorneys, the latter launched an urgent application in the High Court to stop the article from coming to light.
The judge however found NCIS failed to “allege factual matter informing the secrecy, sensitivity and classification (as well as the perceived compromise to national security) on the information and publication they seek to interdict,” which materially detracted from the veracity of their case.
According to Judge Geier, the actions of the NCIS are subject to judicial oversight as they operate within the confines of a democratic state founded on the rule of law, which rule subjects all public officials and all those exercising public functions, whether openly or covertly, in the interest of the state, to judicial scrutiny. This, he said, would include all operatives and functionaries of the NCIS. “The agency has been established to serve that state and thus remains accountable to the judiciary,” the judge stressed.
He further said the courts are well equipped to deal with security issues where the court could, for instance, exercise its inherent powers to regulate a preliminary in-camera procedure, if required for purposes of establishing whether any information required in judicial proceedings should be kept secret, contrary to the open justice principle, in the interests of national security or whether or not such information could be placed in the public domain.
“As applicant (NCIS) sought to interdict the publication of an article that was intended to expose the alleged misuse of public funds and corruption, the question arose whether or not the law, and in this instance the relied upon statutory provisions, could be used to cover up potentially illegal – and in this case alleged – corrupt activity?” Judge Geier asked and answered with an emphatic, “No!”
According to him, on these considerations the court would also exercise its limited discretion against the applicants. While article 21(2) of the constitution allows for reasonable limitations on the rights and freedoms of Namibians, any limitation that would lend itself to unlawful purposes could clearly not be considered as reasonable, the judge stated, adding that in such a scenario the rights and freedoms entrenched in article 21(1)(a), which guarantees freedom of expression and the press, would prevail.
“On the application of the public domain doctrine the law should not deny the Namibian public the right to be informed more fully, through the intended newspaper article, of the matters which had already become freely available through the publicly accessible court record and court documents, the public and live television broadcast of the hearing and the radio broadcasts and newspaper articles reporting on the case, prior to and after the hearing, which articles were published nationwide in all the main newspapers and even beyond Namibia’s borders,” Judge Geier said and continued: “The import of the public domain doctrine into the law pertaining to interdicts would be that, in such circumstances, it can no longer be said that there can be any reasonable apprehension of injury or harm, as the injury has already occurred.”
The NCIS was represented in court by Advocate Dennis Khama on instructions of the government attorneys and The Patriot by Norman Tjombe and Tuhafeni Muhongo, instructed by Tjombe Elago.