PRESS RELEASE

“If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Goebbels was in favor of freedom of speech for views he liked. So was Stalin. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise”.

Noam Chomsky in Manufacturing Consent: Noam Chomsky and the Media 1992

“If we don't believe in free expression for people we despise, we don't believe in it at all.”

Interview by John Pilger on BBC's The Late Show, November 25 1992

NSHR has taken note of the ongoing furor around the recent publication of exiled Caprivi separatist leader Mishake Muyongo’s New Year message in the February 18-29 2008 edition of The Caprivi Vision (TCV) community newspaper. Muyongo’s statement inter alia called for ‘unity and strength in the struggle for the freedom and independence’ for Namibia’s Caprivi Region.

Rejecting the above Muyongo call, Information and Broadcasting State Secretary Mbeuta ua-Ndjarakana condemned the statement, describing it an ‘incitement to an uprising’.

However, ua-Ndjarakana also said the Government of Namibia (GoN) “condemns in the strongest terms the publication in newspapers of inciting messages by Mr. Mishake Muyongo or anybody else who plans to use that powerful platform to destabilise the peace and security in the country”.

Describing TCV’s publication of Muyongo’s statement as “the trademark of a coward and not worthy of receiving publicity”, ua-Ndjarakana also portrayed Muyongo as “a disgruntled politician who … would leave no stone unturned to shatter the existing peace, harmony and stability in a sovereign Namibia to serve his own, selfish purposes [and who, in pursuing his objectives], has to resort to community newspapers, often starved for news, to voice his dissenting views”. The GoN statement further said:

“The publication of fugitive Mishake Muyongo’s inciting New Year’s message in the Caprivi Vision, one of the community newspapers in the Caprivi region, is a blatant demonstration of disregard for the Namibian Constitution by the editor of the publication, Mr. Risco Lumamezi. His action, to allow his newspaper to be used as a mouthpiece for Mr. Muyongo’s calls for an independent Caprivi, can well result in him being prosecuted under existing laws and in line with Article 21 (2) of the Namibian Constitution … The Caprivi Vision overstepped all limits when it afforded Mr. Muyongo the opportunity to use the newspaper to incite Namibian citizens to unite and fight for a free and independent Caprivi”.

NSHR has no qualm, whatsoever, with any entity, including GoN that for any reason condemns Muyongo for his dissenting views. However, the human rights organization totally rejects the condemnation of TCV and or its editor, Risco Lumamezi, simply for publishing the Muyongo statement verbatim.

Arguing that the statement published in TCV contains a call by Muyongo for an “uprising”, an article published in the State-controlled New Era newspaper on March 4 2008 also said Muyongo had “incited” residents of the country’s Caprivi Region to “find strength and wisdom to destroy those who are occupying their country via means of arms [sic]”. According to the said New Era story, several media experts in the country also have subtly condemned and accused TCV and or its Editor of recklessness for publishing verbatim the Muyongo statement. The said experts reportedly referred to paragraph 12 in particular of the statement by which Muyongo said:

“Countrymen and women allow me therefore to say to you wherever you are that let us unite our efforts, it is in unity that we can find strength and wisdom and it is with strength that we can destroy those who are occupying our country by force of arms. Pulling and working together can bring the desired results that are freedom and independence for the CAPRIVI and the People. The oppressive regime of Namibia has run out of ideas as far as the Caprivi is concerned”.

In rejecting this GoN’s shoot-the-messenger attack on TCV and its Editor Lumamezi, NSHR bases its disapproval on several established case law and constitutional principles to the effect that everyone has the right to freedom of expression and opinion through any media and that the public has the right to know, not only the good things that politicians or public officials like them to know, but also those that they despise.

The human rights organization holds that Article 21 of the Namibian Constitution, read with Article 19 of the International Covenant on Civil and Political Rights (ICCPR) as well as celebrated case law fully protect the right to freedom of expression and opinion of everyone in Namibia.

Article 19 of ICCPR and General Comment no 10 of the UN Committee on Civil and Political Rights (CCPR) as well as several UN declarations incidental thereto fully protect the right to freedom of expression and opinion from unfettered and undue interference from State agencies. Article 19(2) of ICCPR requires protection of the right to freedom of expression, which includes not only freedom to “impart information and ideas of all kinds”, but also freedom to “seek” and “receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in print, in the form of art, or through any other media of his or her choice”.

In terms of its jurisprudence, the aforesaid UN Committee holds that when a State Party imposes certain restrictions on the exercise of freedom of expression, this may not put in jeopardy the right to freedom of expression and opinion itself.

Furthermore, as the 1964 landmark New York Times v. Sullivan case shows, media practitioners may publish any and all statements, even false ones, about the conduct of politicians, such as Muyongo, except when such statements are made and or published with knowledge that they are false or in reckless disregard of their truth or falsity.

Similarly, the 1971 landmark New York Times Co v. United States case demonstrates that the US Supreme Court rejected US Government efforts to censor and or suppress publication of the “Pentagon Papers” in the New York Times allegedly because this jeopardizes US national or military security interests. Also known as the prior restraint doctrine, this court decision is notwithstanding the fact that the aforesaid papers contained classified information; that the New York Times’ source had obtained the said papers illegally; and, further, notwithstanding the government's vigorous contention that publication would gravely and irreparably jeopardize US national security.

In this case the said court also ruled that the US Government had failed to carry its “heavy burden of showing justification for the imposition of [prior] restraint” upon the New York Times newspaper. Hence, the court further ruled that no prior restraint may be ordered unless it is proven that publication “will surely result in direct, immediate and irreparable damage to our nation or its people.”

Equally, TCV cannot constitutionally and legally be precluded from publishing the Muyongo statement merely on the basis of an allegation or perception that such publication threatens Namibia’s national security. This is so because TCV’s verbatim publication of the controversial Muyongo statement does not violate the 1919 “clear and present danger” doctrine. This doctrine, also on the right to freedom of expression and opinion, was first established following the US Supreme Court decision in the Schenck v. United States case (1919). The doctrine became a celebrated case law during a controversial period in US history when the First Amendment to the US Constitution often clashed with the government’s interest in maintaining order and boosting morale during wartime.

Also, in its 9-0 decision in the Chaplinsky v. New Hampshire (1942) case, the US Supreme Court established the acclaimed ‘fighting words’ doctrine. The doctrine holds that “insulting or 'fighting words'” are those that, by their very utterance or publication, they inflict injury or tend to incite an immediate breach of the peace.

“It strikes me to think even for a second that there are Namibians who believe and or take pride in the assumption that the Namibian Constitution protects the right to freedom of expression and opinion to a lesser extent than, for example, the US Constitution and relevant international law” said NSHR executive director Phil ya Nangoloh.

When it condemned New Era on July 7 2006 for “ill advised and reckless publication” of “a racist and hate-filled article” targeting the Kwanyama people in the country, NSHR had reasonable cause to believe that the “reckless” publication of the anti-Kwanyama article posed a clear and present danger of resulting in actionable anti-Kwanyama sentiments as is happening now in the country.

“Similarly, our condemnation on September 27 2005 of the “reckless publication of a Nazi hate propaganda advertisement”, in a local weekly newspaper, was based on existing international customary and human rights law principles criminalizing Nazi propaganda” ya Nangoloh pointed out.

Hence, the GoN’s condemnation of TCV is ulterior-motivated by merely the fact that GoN is hell-bent on censoring any material, which it considers objectionable, harmful or sensitive, as it sees fit.

“Can you, for argument’s sake, imagine a scenario whereby a TCV reporter comes to a spot in a jungle where, say, Mishake Muyongo is hidden with a battalion of well-armed Caprivi separatists and then he says to the reporter: ‘We are posed to liberate Caprivi by armed force within next three days’ and then TCV fails to report about what Muyongo had said? For sure both TCV and its editor will immediately face criminal charges of conspiracy of silence!” said ya Nangoloh.

This state of affairs is mere censorship at work based on or as part of the high levels of political hate speech currently plaguing the country. Moreover, the same Muyongo statement is also published on the website of his United Democratic Party (UDP), at Caprivi Freedom. However, this does not seem to be a problem for GoN and or all those media experts who also condemned TCV and Lumamezi.

Hence, the GoN and other condemnations of TCV seem to only tend to deny or be prejudicial to the right to information for those Namibians who do not have access to the Internet! Moreover, such condemnation merely has the potential to subvert the press freedoms or impose prior restraint self-censorship on media practitioners in Namibia. This situation is in line with GoN’s present urge to curb media freedoms through the imposition of a media council in the country.

GoN only wants to silence TCV or subvert the independence of the community newspaper. This state of affairs is reminiscent of the controversial Hakaye motion presently before Parliament seeking to close down NSHR and certain newspapers in the country, purely because of the ‘favorable’ publicity afforded to the NSHR submission to the International Criminal Court (ICC). On December 8 2006, the human rights organization requested the ICC to investigate crimes against humanity against former Namibian President Sam Nujoma and several other Namibians.

The GoN’s imposition of prior restraint and other censorship is a human rights violation which is closely associated with dictatorships and other forms of repression. GoN has never really been a champion of freedom of expression and opinion as evident from its track record since Namibian independence in 1990.

Even during the apartheid regime before Namibian independence certain local newspapers could publish interviews and or excerpts by, for example, SWAPO President Sam Nujoma and other “terrorist” leaders of that liberation movement. On March 20 1966 Nujoma admittedly could come to Windhoek without any problems and he was accorded VIP status by the apartheid regime!

Nor is there any law in the country proscribing the publication of Muyongo’s statements.

“In order to justify their urge and abhorrence of the right to freedom of expression and opinion, Namibian censors often run to Article 21(2) which says:

“The fundamental freedoms referred in Sub-Article (1) hereof shall be exercised subject to the law of Namibia, 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 a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

However, very rarely if ever, do they cite any specific law(s), statutory or otherwise, which exist(s) in the country upon which the restrictions referred to in Article 21(2) of the Constitution are rested or in the event such laws exist, whether or not they impose reasonable restrictions on the exercise of the rights and freedoms as consecrated in Article 21(2) of the Constitution” said ya Nangoloh.

In light of the above abnormal situation, NSHR once again joins the Media Institute of Southern Africa (MISA) and others in calling upon the urgent enactment of legislation based on the provisions of Articles 19 and 21 of ICCPR and the Namibian Constitution, respectively.

In case of additional comment, please call Dorkas Phillemon or Phil ya Nangoloh at Tel: 061 236 183 or 061 253 447 (office hours) or Cell: +264 811 299 641 (Dorkas) or Cell: +264 811 299 886 (Phil) or E-mail: nshr@nshr.org.na or visit: National Society for Human Rights :: Tolerance - Liberty - Happiness