Balancing National Security Interests with Press Freedom: Three Important Lessons from the Supreme Court of Namibia8 minute read.
The right to freedom of expression – including the right to receive and impart information and the right to press freedom – is well-entrenched under domestic and international law around the globe. However, there remain countless efforts to curb the exercise and impact of such freedom, particularly where this may lead to the exposure of corruption or other malfeasance by powerful individuals. One of the commonly used grounds to restrict the exercise of freedom of expression is that of national security, which is often relied on to deny requests for access to information or to attempt to censor content.
As explained in the Global Principles on National Security and the Right to Information (known as the ‘Tshwane Principles’):
National security and the public’s right to know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep information secret on national security grounds and the public’s right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is well informed about the state’s activities, including those undertaken to protect national security.
Access to information, by enabling public scrutiny of state action, not only safeguards against abuse by public officials but also permits the public to play a role in determining the policies of the state and thereby forms a crucial component of genuine national security, democratic participation, and sound policy formulation. In order to protect the full exercise of human rights, in certain circumstances it may be necessary to keep information secret to protect legitimate national security interests.
Striking the right balance is made all the more challenging by the fact that courts in many countries demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to the right to information as well as to ordinary rules of evidence and rights of the accused upon a minimal showing, or even the mere assertion by the government, of a national security risk. A government’s over-invocation of national security concerns can seriously undermine the main institutional safeguards against government abuse: independence of the courts, the rule of law, legislative oversight, media freedom, and open government.
This is precisely the issue that the Supreme Court of Namibia (the Supreme Court) recently had to deal with in the matter of Director-General of the Namibian Central Intelligence Service and Another v Haufika and Others ( NASC 7).
The case before the Supreme Court of Namibia
At its crux, the case centred on an attempt by the Namibia Central Intelligence Service (NCIS) to interdict The Patriot, a print and online news publication, from publishing an article that would place the NCIS in an unfavourable light. In this regard, the journalist in question had sought comment from the Chief Administrator of the NCIS on an investigation into its acquisition of farms and houses, and the manner in which such properties were being used. In response to the questions received, the NCIS indicated that disclosure of such information was prohibited by law in terms of the Protection of Information Act 84 of 1982 (PIA) and the Namibian Intelligence Service Act 10 of 1997 (NCISA), and declined to answer.
The NCIS then sought an interdict in the High Court against The Patriot in the following terms:
4. An order interdicting and restraining the respondents or any one of them from publishing, circulating and or distributing any article and or any information that relates to the properties and or assets of the [NCIS] in the edition to be published in The Patriot newspaper on Friday the 13th of April 2018 or any other day.
5. An order interdicting and restraining the respondents or nay one of them from publishing, circulating and or distributing any information that falls within the scope of sensitive matter as defined in section 1 of the [PIA].
6. An order interdicting and restraining the respondents or any one of them from publishing, circulating and distributing any classified information as defined in section 1 of the [NCISA].
7. An order interdicting and restraining the respondents or any one of them from publishing, circulating and or distributing any information that was made, obtained or received by any of the respondents or any person in contravention of the [PIA] and the [NCISA].”
The High Court dismissed the application. Thereafter, on appeal before the Supreme Court, the NCIS argued that: (i) the information was obtained or possessed illegally; (ii) it would be against the law and would compromise national security if the NCIS either confirmed or denied the truth of the information possessed by The Patriot; and (iii) the mere assertion by The Patriot of possessing information about the NCIS made the publication of such information unauthorised and unlawful, regardless of whether it was accurate or involved the commission of a crime.
In response, The Patriot argued that the publication was protected speech, intended to expose corruption, and that the information was obtained lawfully and did not threaten national security or the operations of the NCIS. Further, it was argued that the interdict sought was vague and overbroad, and would blatantly violate the right to freedom of expression.
On an assessment of the facts, the Supreme Court held, amongst other things, that the NCIS had failed to prove that the information concerned a matter of national security, and had failed to make out a case for the grant of a final interdict. In doing so, the Supreme Court has provided useful guidance in respect of the balance of competing rights and interests between national security and press freedom. Of particular importance, the judgment sets out what is expected of the government’s conduct when seeking such an interdict, and makes clear that national security is not an ultimate trump card that can be used to suppress other rights.
Here are three of the key lessons that can be taken from the judgment:
Lesson 1: National security claims are not beyond judicial scrutiny
A preliminary matter dealt with by the Supreme Court was whether national security claims are beyond judicial scrutiny. In this regard, the NCIS had argued that once the Executive invokes secrecy and national security, a court is then rendered powerless and must, without more, suppress publication by way of an interdict.
This argument was firmly rejected by the Supreme Court, stating that: “The notion that matters of national security are beyond curial scrutiny is not consonant with the values of an open and democratic society based on the rule of law and legality.” The Supreme Court went on to make clear, however, that this does not mean that secrecy has no place in the affairs of a democratic state; rather, what is required is that the party seeking the interdict must make out a proper case for the protection of secret government information to justify suppressing publication.
As noted in the Tshwane Principles, referred to above, courts have tended to show deference to governments invoking national security concerns. However, as explained by the Supreme Court, the notion that a court should simply interdict because the state assigns something with the label of national security would not be consonant with the values of an open and democratic society.
Lesson 2: Standard of proof
The second important lesson to be drawn from the judgment relates to the standard of proof in the case. In this regard, the Supreme Court distinguished between two scenarios: on the one hand, a government’s entitlement to decline to disclose information; and, on the other, an entitlement to prevent publication on matters that fall within the prohibitions of security legislation, such as the NCISA and the PIA.
In the present matter, in which the NCIS was the litigant seeking to interdict publication, the NCIS carried the burden of proof to establish the requirements for an interdict: a clear right which is being protected; an interference with that right; and the absence of a similar remedy if the interdict were not granted. As noted by the Supreme Court, the NCIS came to court alleging that The Patriot had illegally obtained prohibited information and that its publication would constitute a crime and jeopardise national security; as such, the NCIS carried the onus to prove those allegations by admissible evidence.
In order to successfully discharge this onus, the Supreme Court emphasised three key aspects: first, it would not suffice for the government to make bald allegations of secrecy and national security that were not apparent on the face of the information sought; second, it would not suffice to simply say that even acknowledging or denying its existence would compromise national security; and third, it would not suffice to merely recite the sections of the legislation. These three aspects make clear that governments cannot simply be cavalier when raising national security, and use it as a shield to obviate the ordinary requirements of court proceedings; rather, the government is still required to discharge its burden by providing sufficient admissible evidence to establish its case.
Cognisant of the sensitivities that can arise with legitimate concerns of national security, the Supreme Court provided practical guidance on how this could be remediated. As noted by the Supreme Court, where concerns of national security arise, a court can be approached in camera until the finalisation of the proceedings, in order for the government to take the court into its confidence and place sufficient material before the court to justify its claim for publication to be prohibited. The NCIS’s failure to do so in the present matter, coupled with its failure to provide sufficient evidence to establish the jurisdictional facts of its case, rendered the inevitable outcome of the application for an interdict being dismissed.
Lesson 3: The court’s discretion if inequity or unconscionable conduct may result
The third, and perhaps most important, lesson highlighted in the judgment is in relation to the discretion of courts when determining whether to grant an interdict. Notably, courts retain a discretion to refuse a final interdict if its grant would cause some inequity and would amount to unconscionable conduct by the party seeking the interdict. This principle – to refuse to allow a party to enforce an unconscionable claim against another where it would be inequitable under the circumstances – was noted in the judgment as dating back to antiquity.
As such, even if grounds of national security are established, this would not necessarily be the end of the matter: a court would still need to balance the national security concerns in favour of granting the interdict against any unconscionable conduct that might arise. In this regard, the Supreme Court explained that: “[T]he 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. In an appropriate case relief will be refused if the conduct being exposed is unconscionable”.
This is important for the media given that investigative journalism often involves the exposure of criminal activity. Where such an investigation overlaps with state agencies, such as the intelligence services, national security has the potential to become a relatively convenient basis to seek to obscure the investigation and hinder access to information. However, what the Supreme Court makes clear is that, where interdicting a publication would result in criminal activity not being exposed, such an outcome could be sufficiently unconscionable to warrant a court refusing to grant the interdict. Differently put, in appropriate circumstances, the public interest in exposing criminal activity could outweigh the competing national security interests.
The findings of the Supreme Court of Namibia are not necessarily novel in other jurisdictions. For instance, in 2007, in Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) ( ZASCA 56), the Supreme Court of Appeal of South Africa summarised the approach when considering whether to grant an interdict against publication as follows:
In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.
Notably, even if not necessarily novel, the judgment of the Supreme Court of Namibia still serves as an important reminder to other states in the region – as well as their intelligence services – that the guise of national security does not place them beyond scrutiny. Although, in appropriate circumstances, national security considerations are undoubtedly important to protect, this amorphous concept of ‘national security’ also has a long and beleaguered history of being relied on in an effort to justify rights violations. It bears reiterating that, through this judgment, the Supreme Court has made clear that national security is not an automatic trump card that can be used to suppress other rights, including the right to press freedom. The role of the media in exposing unlawful conduct is essential to a democratic society; this is a role to be fiercely guarded, and one that should not be permitted to be undermined by any machinations of the public or private sector.
Avani Singh is a Director and Co-founder of ALT Advisory. Avani writes in personal capacity and her views do not necessarily constitute the views of ALT Advisory.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].