Namibia’s top court has delivered a decision giving notice to the country’s intelligence services that they, too, fall under the aegis of a constitutional democracy. The case concerned material collected by an investigative journalist that appeared to show the Namibia Central Intelligence Service (NCIS) was involved in corruption. But when he asked for comment he was informed that publication of his proposed story was unlawful, and the NCIS then went to court to enforce that prohibition. This week’s judgment gave the Supreme Court an opportunity to explain that even the NCIS was bound by the values of an open and democratic society and could not count on the courts’ blindly agreeing to banning publication even where ‘not a scintilla of evidence’ was provided to show that prohibition was necessary. If genuine grounds to prevent publication existed, however, these could be raised with a court behind closed doors.
It is surely not overstating matters to call this a watershed judgment. Consider, for example, the argument put up by Namibia’s national intelligence services at the high court and again at the country’s top court: once “secrecy and national security” were at stake, they said, the courts were powerless to do anything other than order suppression of any publication that might infringe such security.
What kind of an argument is that, you might well ask, given Namibia’s status as a constitutional democracy? And, true to the tenants of judicial independence in such a democracy, the supreme court justices made short work of the proposition: “It needs to be made clear that we do not agree with Government’s refrain, repeatedly pressed with great force in the written heads of argument, that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict.”
The dispute that brought to light the extraordinary views of the government on this issue starts with the work of Mathias Haufiku, a journalist on the Namibian newspaper, The Patriot. He discovered, by way of a tip-off and then through digging in public records, that certain properties – farms and houses – had been bought by the Namibia Central Intelligence Service (NCIS) for tens of millions of Namibian dollars. According to his information, members of a voluntary association of former NCIS employees were allowed to live on these properties, while the NCIS had donated N$2m in taxpayers’ money to the association, apparently without proper approval.
Was the purchase of the properties for a legitimate intelligence purpose, Haufiku wondered, or simply to provide a retirement home for former NCIS staff? And why had so much been spent on buying these properties at a time when the country’s economy was seriously stressed?
After a simple deeds office search, he discovered that one of the farms had been bought by the Ministry of Lands and Resettlement under the government’s resettlement programme, and that it was intended to benefit “deserving landless Namibians”.
Believing that the facts he had collected could show some sort of corruption, Haufiku contacted the NCIS and asked for comment on his questions and information. That led to a brick wall, and then to legal action. Officials informed him that they could not comment on the association of its former members, and that they could neither confirm nor deny any other aspect of the information he put to them as it involved secret material whose publication was prohibited.
When Haufiku failed to give an undertaking not to go ahead with his story, the NCIS went to the high court seeking an interdict to prevent publication. Judge Harald Geier was unimpressed with the NCIS argument, however, saying that because the outfit would not tell the court what its security concerns were in the matter, or plead as to any factual matter involved, even behind closed doors, this undermined any claim for a final interdict.
Continuing to maintain that Haufiku’s information was “obtained unlawfully”, and that it would threaten or jeopardise national security if it were to be published, the NCIS took the matter on appeal.
It argued that its powers obliged it to prevent unauthorized disclosure of national security intelligence and related matters. “That includes the ‘privilege’ not to disclose in court proceedings information that can prejudice national security. The Government was therefore not required by law to disclose in the interdict application the factual basis on which the threat or potential threat to the security of the state was based,” the NCIS said. The courts had to respect the “statutory discretion” given the executive to cite “national security” in court, in order to “suppress publication by persons possessing such information”.
Vincent Maleka SC, counsel for the NCIS, went so far as to argue that the prohibition even applied to publication of material that might expose corruption activity. As long as doing so was prejudicial to the state’s security interests, the NCIS was not obliged to reply to any inquiry about alleged corruption. Moreover, only the NICS could decide whether there was a threat to national security “and not even the courts may inquire into that”.
Arguing for Haufiku and The Patriot, counsel Norman Tjombe said it was in the public interest to publish information that involved the expenditure of public funds in a way that seemed unlawful.
In its decision, the court held that it could be approached for a hearing behind closed doors so the state could take the court into its confidence and put enough material before the bench to justify the prohibition of publication. “The notion that the court must simply interdict because the state assigns something the label of national security is not consonant with the values of an open and democratic society.”
By its own admission the government had placed “not a scintilla of evidence” before the court as to how it was in breach of any law for Haufiku to have obtained the information. Instead there was “complete silence” in the founding affidavit about the “association” of former employees, coupled with “bald allegations of secrecy and national security which are not apparent on the face of it.”
Secrecy had a place in the affairs of a democratic state, however, and if a proper case was made out for it, the courts would be duty bound to suppress publication. But in fact the NCIS made no reference to any legal provision that the reporter breached in obtaining his information. In addition, the court had a discretion to refuse a final interdict if, as here, its grant would amount to “unconscionable conduct” by the applicant.
“The submission that publication of information relating to the NCIS must, without exception, be suppressed even if doing so would expose a crime, cannot be sustained,” said the court, dismissing the appeal and awarding costs against the NCIS.
* “A Matter of Justice”, Legalbrief, 16 April 2019