Secrets Never Trump Free Speech

Overview of the Case In the case of Director-General of the Namibian Central Intelligence Service Another v Haufiku & Others, the Namibian Supreme Court deliberated on the limitations of fundamental human rights and the freedom of the press. A journalist wanted to publish information regarding alleged corruption within the use of State resources to gain property.” The NCIS [Namibia Central Intelligence Service] claimed that publication of potentially sensitive information would compromise the secrecy and integrity of national security.” The defense argued that publication would be protected under the Namibian Constitution, citing Article 21(1)(a), which guarantees Fundamental Freedoms, in which “all persons shall have the right to: (a) freedom of speech and expression, which shall include freedom of the press and other media;”

Logo of the NCIS of Namibia

Key facts of the case The appeal relates to an urgent NCIS attempt to restrict a print and online newspaper, The Patriot, and the journalist working as the editor, from sharing information which would have shed an unfavorable impression of an NCIS chief administrator. The Patriot writer had texted Mr Likando, the director of the NCIS, informing him of the publishing of an upcoming article regarding NCIS property purchases and their affiliation with former employees, known as the Association. Mr. Mathias Haufiku asked Mr. Likando if he could send him some questions and use the responses on behalf of the NCIS. Mr. Kashindi, the government attorney associated with NCIS responded to the email, responding that any publication would violate the Protection of Information Act of 84 and the Namibia Central Intelligence Service Act 10 of 1997. Mr. Haufiku was questioning the national interests advanced in the purchases of properties, including farms, which would thus serve as retirement homes for NCIS officers after their end of service. He raised questions on the financial state of the nation, as well as whether or not this was in the interest of personal gains or national security. Mr. Kasihindi argued that this information fell within the purview of properties and assets owned by the Namibian Central Intelligence Service under sensitive or classified information, which any publication of this information would produce a criminal offense. The court did not prohibit the publication as the NCIS failed to prove the precise and pressing nature of the security concerns that they raised in opposition. ​

Mr. Haufiku (left) following the verdict on his case along with HIGH Court judge Harald Geier.

Legal Arguments For and Against Key arguments for The Patriot's publication The journalist’s defense argued that they intended to public legally by not publishing any information that could compromise national security. “The respondents argued that the media had a legal obligation to expose corrupt activities, including that by the NCIS.” The journalist in his research had not violated any laws in the procurement of the information necessary for his story. As aforementioned, Mr. Haufiku was asking for a statement from the NCIS on his article. The information, for which he had obtained legally. He believed that it was within the purview of freedom of the press to publish this information as it was not a violation of national security interests, and would better inform the public. Key arguments to prohibit The Patriot's publication The NCIS relied on the Protection of Information Act 84 of 1982 with the provisions of the Namibia Central Intelligence Service Act 10 of 1997. The NCIS maintained that the Patriot wanted to publish information that would violate the secrecy and integrity of the NCIS. The matter, according to the NCIS legal team was that information relating to these NCIS properties was only a matter related to the NCIS and their relationship with previous employees, bringing it under purview of 4(1)(b) of the PIA, which states that “security matter’, which includes any matter which is dealt with by the Namibia Central Intelligence Service or which relates to the functions of the service or to the relationship between any person and that service”, and prohibits the disclosure of information regarding “any person who has in his possession or under his control or at his disposal… any document, model, article or information.” When thinking about their intent to prohibit this information sharing, the NCIS feared that the information regarding the retirement would demonstrate that the resources were being used unfavorably, and would tarnish the reputation of an individual living off national funds without purpose. This perception among the public could push for reform to the current system and status quo. Their defense of this action, relied on protection of personal information of their employees, whereas the journalist’s offense argued that this action regardless of secrecy was improper and thus fair for public disclosure.

Source: Supreme Court of Namibia

Outcomes of the Court's Decision In the court’s decision, the court proceeded that “the notion that matters of national security are beyond the curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality. That is not to suggest that secrecy has no place in the affairs of a democratic State. If a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication.” However, since the court failed to prove that Mr. Haufiku had obtained his information about the properties illegally, or breached any statutory provisions, or prove the secret importance of preserving national security, there was no reason why Mr. Haufiku’s article deserved restraint. With respect to free speech, the Court upheld a part of the Constitution, which protects the fundamental freedoms with a limit that “in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said Sub-Article, which are necessary in democratic society and are required in the interests of sovereignty and the integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offense.”

Evidence of the Decision This case rose to extreme prominence in the resolution of Mr. Haufiku’s case, as it raised the order of precedent for freedom from prior restraint and expression worldwide. The Namibian decision in court remained semi-ambiguous on how state agencies involving secrecy should balance individual rights and their operations per mandate. Without clearer guidance, it has been criticized that the “NCIS could use ‘national security’ in suppressing the fundamental human rights and freedoms in the future.’, which concerns me as to whether or not this case “got it right.” Yes, this case establishes some level of precedent, but this issue remains up to the discretion of the courts for future cases, some of which may not find similar protections for journalists to come. However, the Haufiku case “affirms an important principle – that the state cannot invoke national security interests to justify a blanket exemption from having to respect fundamental rights.” This protection is essential to ensuring a free press can operate and expose wrongdoing in ways that intend to inform the public of wrongdoings, regardless of their service or office. The NCIS’ inability to protect individuals who retained status due to their service demonstrates a win for freedom of information within a republican democracy where the public decides the fate of the democracy, and upholds the protections wherein members agree to the social contract. It held accountable those who violated the law, even in a gray area of security and wrongdoing. ​

Implications of the Case on the Future and World Thinking broadly, this decision is of great importance to a global precedent which has recently favored suppression of the press. This decision “rejects a law abridging the freedom of the press in the name of national security. The case also affirms Namibia’s commitment to freedom of the press, evidenced by its ranking as one of the top five free press African states,” as well. Freedom of the press calls into question so many decisions, where a government fears exposure to wrongdoing because reporters have uncovered proof of such wrongdoing. In this case specifically, the Protection of Information Act of Namibia confirmed the right to protect the information and assets with respect to one’s employees, but not to information of wrongdoings committed while in service. The free-riding that occurred in this case demonstrated that exposure of these acts could not only make Namibia safer, but more accountable for its public officials. This decision mirrored an opinion made by the United States Supreme court in 1971, known as New York Times Company v. USA, where it was found that the New York Times had not violated the Protection of Information Act. In this case, the New York Times and Washington Post had attempted to publish a study of classified information called “History of U.S. Decision-Making Process on VietNam Policy.” This reflected a similar judgment where injunctions against the two papers brought the case to the Supreme Court over whether or not freedoms of the press would be protected as the “watchdogs of democracy” under the First Amendment. In the outcome of this decision, the court ruled 6-3 that the prior restraint attempted by the government was unconstitutional, and that a free press was necessary to protect the public from officials attempting to save recognition facing wrongdoing.