Namibia Imprisoned in a Secrecy System

13 November 2014

By Natasha H. Tibinyane

The author is National Director of  MISA Namibia.  This is a chapter in a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)

The Government of Namibia is a State Party to the African Charter on Human and Peoples’ Rights and has also ratified the African Union Convention on Preventing and Combating Corruption, African Charter on Values and Principles of Public Service and Administration and the African Youth Charter. Namibia is yet to ratify and domesticate the African Charter on Democracy Elections and Governance and the African Statistics Charter.

Namibia is in violation of its reporting obligations to the African Commission on Human and Peoples’ Rights under Article 62 of the Charter and is late by two reports[1].

Adoption of access to information measures alongside other transparency measures will enable the country meet eligibility for the membership of the Open Government Partnership[2].

Secrecy Prevails

Though freedom of expression and human rights are guaranteed in a democratic Namibia, secrecy prevails, as there is no access to information law that requires the availability of information in the public domain, nor a communication policy that guides public service information officers on how and when to communicate with the public.

Furthermore, Namibia’s legal framework encourages secrecy and confidentiality, as a number of laws deter the release of State–held information. These include the Protection of Information Act (1982), the Defence Act (2002), the National Security Act (1997) and the Public Service Act (1997), which makes the disclosure of information without the permission of the permanent secretary a disciplinary offence.

Namibia also does not have legislation protecting whistleblowers, and the Anti–Corruption Commission (ACC) has on several occasions called for such a law. Article 33 of Chapter III of the United Nations Convention on Corruption (UNCAC), to which Namibia is a party, calls for appropriate measures to ensure protection from unjustified treatment for people who report corruption to the authorities.

The 2011 Anti Corruption Commission (ACC) Urban Perceptions Survey indicated that one of the main reasons that Namibians don’t report corruption is a fear of victimisation.

Stifling Regulation

A disturbing development in 2013 was the insertion of additional regulations to the Research, Science and Technology Act of 2004, which require government permission for all research. The Act defines research as “the systematic investigation or analysis into, and study of, materials, sources and the physical universe in order to establish facts and knowledge and reach conclusions.” It also obligates organisations or individuals conducting any activity that could be termed as research to apply to the government–appointed National Commission of Research, Science and Technology for permission. The proposed regulations state that every research project requires its own separate permission. Failure to gain permission can result in a 1,800 US Dollars (about N$20,000) fine or five years in jail, and an indefinite ban on conducting research in Namibia.

These regulations stifle freedom of expression, access to information and academic freedom. If the broad definition is to be strictly applied, countless professions and academic studies would have to be phased out.

A focus group discussion with representatives from the business sector and relevant civil society organisations post MISA’s Towards Greater Transparency Conference on Access to Information, highlighted that the State does make a lot of information pertaining to the Budget available, but that it could be clearer. They further noted that the public procurement, or tender process, is not transparent and thus open to corruption and political interference. They were of the view that businesses will find it easier to be more innovative with accurate economic data and a more enabling environment.

Problems With Business, Media 

It is, however, not only the government that infringes on the public’s right to information; the business sector is also resistant to providing information that should be available publicly for the citizens and media to access.

As with government, the media have to rely on contacts within various departments in companies to access information. Namibian media are increasingly accused of unethical behaviour because of the use of leaked information and anonymous sourcing, but this is brought about by the lack of information that should be made public in the interest of the public. If public and private institutions were proactive in releasing information there would be less misinterpretation as well.

The most recent example of a gross violation of the public’s right to access to information and participation was the legislation of the Third Constitutional Amendment Bill, which was shrouded in secrecy, right up to its tabling on 31 July. More than 40 proposed amendments to the bill were not put to the public for their input, thus denying citizens their democratic right to express themselves on far–reaching changes to the foundational framework of the Namibian State.

The launch of the My Constitution My Decision Campaign by a coalition of civil society organisations, including Media Institute of Southern Africa–Namibia (MISA Namibia), resulted in verbal attacks by members of the executive on various platforms. On his Facebook page Prime Minister Hage Geingob challenged civil society, questioning our mandate, and labelling us “failed politicians”. He accused newspapers of transforming from “watchdogs to lapdogs”. On 3 September, the National Council, the House of Review in the legislative process, passed the Bill with no amendments, paving the way for the Bill’s enactment as a law.

Drafting Access Legislation

Whilst it is widely recognised that access to information is a fundamental human right and is central to maintaining a democracy, when it comes to drafting national legislation, it appears that the Law Reform and Development Commission places emphasis on the protection of information. The Ministry of Information and Communication Technology is in the process of developing an access to information policy, which should precede the drafting of a Bill on access to information. Two new laws that will further impact the public’s access to information are the Data Protection Bill, and the so–called Cyber Law, which, it seems, is mainly an excuse to stifle freedom of expression online, especially on social media pages. At the time this report was compiled, it was unclear when these Bills would be tabled.

Namibia is standing at a significant crossroad since its journey began at independence 24 years ago. August 2014 undoubtedly was the darkest month for our democracy and media, and our already limited access to information will most definitely be a casualty in the attack on the country’s democracy.

The African Platform on Access to Information’s (APAI) preamble states:

“Emphasising that access to information is an integral part of the fundamental human right of freedom of expression, essential for the recognition and achievement of every person’s civil, political and socio–economic rights, and as a mechanism to promote democratic accountability and good governance”.

MISA Namibia, in collaboration with partners from all sectors, will continue to advocate for conditions that allow for media freedom and freedom of expression, for which access to information is essential.

Recommendations

  1. We recommend that the Government of Namibia to urgently ratify and domesticate African Union treaties on transparency including the African Charter on Democracy Elections and Governance and the African Statistics Charter.
  2. We further recommend that the Government of Namibia should take immediate steps to meet its obligations under the African Charter on Human and Peoples Rights including the reporting
  3. We also recommend that in line with Article 9 of the African Charter on Human and Peoples’ Rights Namibia should adopt an Access to Information law.

1 http://www.achpr.org/states/namibia/reports/3rd-2002-2009/

2 http://www.opengovpartnership.org/about

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