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Cases On Human Rights

• Volume 1
  
  Fundamental Rights:
  - Freedom of Expression – Value of Uninhibited Speech to democratic government – Why Right of Free Expression should not be lightly interfered with. - Kauesa v. Minister of Home Affairs and Others

KAUESA

v.

MINISTER OF HOME AFFAIRS AND OTHERS

SUPREME COURT OF NAMIBIA

I Mahomed, Chief Justice
E Dumbutshena, Acting Judge of Appeal
NR Hannah, Acting Judge of Appeal
Wednesday, 11th October 1995

ON APPEAL FROM THE NEW BRUNSWICK COURT OF APPEAL

Fundamental Rights: Freedom of Expression – Value of Uninhibited Speech to democratic government – Why Right of Free Expression should not be lightly interfered with.

Fundamental Rights: Freedom of Expression – Limitation on Freedom – How Restrictions to Rights are interpreted – Circumstances when limitations to Right are permissible

FUNDAMENTAL RIGHTS : Freedom of Expression – Limitations thereof by Legislation – Conditions which legislation must satisfy to pass muster Issue for Determination:
Whether Regulation 58(32) of the Police Regulations deemed to have been made under the Police Act, which prohibited a member of the police force from commenting unfavourably in public upon the administration of the force or any other government department is valid and constitutional in view of its restriction of the scope of what the appellant, - a police officer – (who made unfavourable comments on the structure of the Namibian Police Force) could say of the Police.

Facts:
The appellant is a warrant-officer in the Namibian Police Force who claimed to have been elected Chairman of the Namibian Police Promotions Committee (whose function was to look into the conditions of employment of the police with a view to redressing the racial and gender imbalances in the composition and structure of the Police force), was charged with misconduct in terms of regulation 58(32) of the Police Regulations (Nambia) Act 19 of 1990.

The appellant was on 22 December 1991 a member of a discussion panel convened by the Namibian Broadcasting Corporation. The subject of the discussion was affirmative action and the restructuring of the police force, the public service and other such institutions. As a result of what the appellant said during the panel discussion he was charged with contravening Regulation 58(32) published under the Government Notice 719 dated 14 February 1964 as amended to the effect that he “… wrongfully and unlawfully commented unfavourably in public upon the administration of the Force by saying the following on a television progromme “Spotlight” broadcast (ed) by the NBC:

‘The command structure of the Namibian police force is determined to undermine the goverment's policy of national reconciliation and if possible to cripple the government through corruptions and other irregularities. We have only one group of people, the whites, who are occupying the positions of command and this seniority and the seniority facilitate corruption and abuse of power. If I may recall the high treason case of Kleynhans and his group of white terrorists, then I mean police sort of supplied them with weapons and ammunition, because no one of the commanding officers or the commanders of the unit that suffered the loss of armoury were held responsible or at least charged with acts of negligence or collaboration. The circumstances surrounding the case were very suspicious and that is the hangover of the Namibian police executive i referred to. We are sitting with wrong people in wrong positions.”

The appellant challenged the constitutionality of the regulations. The Full Bench of the High Court upheld the impugned regulations. At the Supreme Court, the issues arose whether the impugned regulations were a permissible restriction of the right, whether they were directed at fulfilling any legitimate state purpose, whether they had an ascertainable extent, and whether it was rationally connected with its objective. The Supreme Court of Namibia reversed the High Court's decision.
Held:
The impugned regulations were unconstitutional limitations upon the freedom of speech of the appellant; they were overbroad, and were not rationally connected to the objective of the state in making them Details of Principles in the Judgment

1. Free Expression is an Ingredient of Democracy
Free Expression is necessary to the maintenance of a democratic state; citizens must be free to speak, criticize and praise. Muted silence is not an ingredient of democracy because exchange of ideas is essential to the development of democracy. [page 251 para B]

On the Record; Per Dumbutshena, JCA

“The great American Judge, Justice Brandeis, described in moving language the value of freedom of expression…. . He wrote:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties… they believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political
truth: that without free speech and assembly discussion would be futile: that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people… They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction, that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

See Whitney v California 274 US 375-6 (1927) and Lord Lester Law and Justice - Democracy and Free Speech at 122.” [page 251 paras C-I]

2. Limitations on Freedom of Expression Must Serve Legitimate Ends, and be narrowly tailored to the achievement of their Objective
It is important that limitations to the right of speech must be both reasonable and necessary, and this necessitates a stricter interpretation of the restrictions by courts so that individuals are not unnecessarily deprived of the enjoyment of their rights. It is important, however, to inquire whether the limitation is rationally connected with its objective, whether it is reasonable and proportionate.[page 256 paras G-I]

On the Record; Per Dumbutshena, JCA

“It is important, however, to find out whether the limitation in this case is rationally connected with its objective. We think not. We are of the view that Regulation 58(32) is arbitrary and unfair. It objective is obscured by it overly breadth. It cannot easily be identified. Because of that it seems to us that there is no rational connection between the restriction and the objective. The limitation is not proportional to the objective so it does not attain the particular effect which is justified by a “sufficiently important objective” See Rights and Constitutionalism (supra) and the authorities cited at 649.

It is important to bear this in mind: sub-article (1) of article 21 protects freedom of speech and expression and sub-article (2) creates a restriction purposely enacted to soothe the relationships between those exercising their constitutionally protected rights and those who also have their own rights to enjoy. This is why the restrictions applied to rights and freedoms are to be restrictively interpreted in order to ensure that the exceptions are not unnecessarily used to suppress the right to freedom guaranteed in article 21(1)(a). A restrictive interpretation of the exceptions or restrictions makes it possible for the exceptions to be used for the purposes contemplated in article 21(2). In our view the restriction should be reconcilable with the freedom of speech protected by article 21(1)(a). See the Sunday Times v The United Kingdom 1979 (2) EHRR 245 at 276.” [page 257 paras A-E]

Per Dumbutshena, JCA
“The sub-regulation (32) casts too wide a net in its attempt to prevent police officers from commenting unfavourably in public on the administration of the force or any government department in order for the force to maintain discipline. Everyone is agreed that the police force needs discipline in order to promote efficiency. A disciplined force will carry out its duties efficiently. But Namibia is a democracy in which police officers have as much a right to freedom of speech and expression as the citizenry. They like any other citizens, should not be relegated to a watered down version of the right to freedom of speech and expression. Their right to enter into debate in which, as in the instant case, matters of great concern to Namibia and the Namibian public were discussed, is as valid as the right of other citizens.
..........................................................................................................................
“Respondents are aware that the part they wish to retain, “comment unfavourably
in public upon the administration of the force” is itself vague and overbroad. A police officer might comment in public about a true state of affairs. He might say in public there are too many police officers in urban areas and very few in rural areas. There must be a change in preferences. The administration might regard that as an unfavourable comment. It matters not whether the comment which is unfavourable is true or false. The officer will be visited with criminal sanctions as long as the administration thinks the comments are unfavourable.

Mr Gauntlett moved on to the second section of the dual route, he invited the court to read down the phrase “comment in public upon the administration of the force”.

“Regulation 58(32) is not designed, whatever part is accepted, to infringe freedom of speech and expression as little as is reasonably possible in order to achieve its purpose. It is over-inclusive in the range of unfavourable comments which are prohibited.

The range of comments forbidden is too wide. The officers are uncertain as to which comments made in public would be unfavourable and fall within the ambit of the regulation.” [page 263 paras C-E]

3 Freedom of Speech is not to be denied on account of Offensive Character of the Speech
The right of free speech is not frustrated by the mere indiscretion of a speaker, and it is always important to find out whether the speech fulfils the purpose for which the right to freedom of speech was conferred. [page 260 para C]

On the Record: Per Dumbutshena, JCA
In Rankin v Mcpherson (supra) Marshall J, who delivered the opinion of the court said at 326-7.

“The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern:

‘(D)ebate on public issues should be unihibited, robust, and wide-open, and … may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'

New York Times Co v Sullivan 376 US 254 270 11 LEd 2d 686, 84 SCt 710, 95 ALR2D 1412 (1964). See also Bond v Floyd 385 US 116 136 17 LEd 2d 235, 87 SCt 339 (1966):

‘Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.' [page 264 paras C-F]
Cases referred to in the Judgment:
1. Bond v Floyd 385 US 116 136 17 Led 2d 235, 87 SCt 339 (1966)1556
2. Beryson v Wayross (1989) 888 F ed 15623 (11th) Cir 1556
3. Chaplinksy v State of New Hampshire (1942) 315 Us 568
4. Connick v Myers 461 US US 146 cited as 103 Sct 1684
5. Edwards Books & Art Ltd v R (1987) 35 DLR
6. Government of the Republic of Namibia v Cultural 2000 1994 (1) Sa 0407 (NmSC)
7. Handyside v the United Kingdom (1976) 1 EHRR 737
8. Kauesa v Minister of Home Affairs & others 1995 (1)b Sa 51 (NmHC)
9. Madras v VG Row (1952) SCR 597
10. Mm Pathak v Union (1978) 3 SCR 334
11. New York Times Co v Sullivan 376 US 254 270 11 Led 2d 686 84 SCt 710, 95 ALR 2D 1412 (1964)
12. Osborne v Canada (Treasury Board) (1991) 82 DLR (4th) 321
13. Park-Ross and Another v Director, Officer for Serious Economic Offences 1995 (2) Sa 148(c)
14. Pickering v Board of Education (1968) 391 US 563
15. Quozeleni v Minister of Law and Order & Another 1884 (3) SA 625 (E0)
16. R v Oakes (1986) 26 DLR (4th) 200
17. R v Zundel (1987) 35 DLR (4th) 338
18. Rankin v McPherson (1989) 483 US 378, 97 Led 2d 315
19. Re singh and Minister or Employment & Immigration And six other appeals (1985)
17 (DLR) (4th) 422; (1985) 1 SCR 177 58 NR 1
20 Roth v United States (1957) 354 US 47621.
21 Spence v Washington (1974) 418 US 405
22. The Sunday Times v The United Kingdom (1979) 2 EHRR 245
23. Whitney v California 274 US 375-6 (1927)

Representation:
1. D Smuts instructed by Legal Assistance Center for the Appellant

2. JJ Guantlett Sc and JDG Maritz instructed by the Government Attorneys for the respondents

Dumbutshena AJA: The appeal concerns the constitutionality of Regulation 58(32) published under Government Notice R203 in Government Gazette 791 of 14 February 1964 and deemed to have been made under the Police Act of 1990. The appellant is a warrant-officer in the Namibian Police Force. He first joined the South West African Police Force in June 1983. The first respondent is the Minister of Home Affairs. The second respondent is the inspector-general of the Namibian Police and the third respondent is the deputy-commissioner.
After hearing evidence from counsel we made the following order:
“(1) The appeal is upheld.
(2) It is declared that regulation 58(32) published under Government Notice R203 in Government Gazette 791, dated 14 February 1964 is invalid and without force and effect in law.
(3) The respondent is directed to pay the disbursements of the appellant both in this Court and in the Court a quo
(4) The reasons for this order will be lodged on a date to be arranged.”

These are our reasons.

Briefly the facts are as follows:
The appellant, who claims to have been elected in 1991 Chairman of the Namibian Police Promotions Committee whose function was to look into the conditions of employment of the police with a view to redressing the racial and gender imbalances in the composition and structure of the Police force, was charged with misconduct in terms of regulation 58(32) of the Police.
The respondents deny that the appellant was elected chairman of the Namibian Police Promotions Committee and deny the existence of the committee. However, the appellant said his committee was formed to promote affirmative action enshrined in article 23 of the Namibian Constitution (“the Constitution”). Whether the committee exists or not is not material to his appeal. Affirmative action is enshrined in article 23 of the constitution.
It reads as follows:

(1) The practice of racial discrimination and the practice and ideology of apartheid from which the majority of the people of Namibia have suffered for so long shall be prohibited, and by Act of Parliament such practices, and the propagation of such practices, may be rendered criminally punishable by the ordinary courts by means of such punishment as Parliament deems necessary for the purposes of expressing the revulsion of the Namibian people at such practices.

(2) Nothing contained in article 10 hereof shall prevent Parliament from enacting legislation providing directly or indirectly for the advancement of persons within Namibia who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices, or for the implementation of polices and programmes aimed at redressing social, economic or educational imbalances in the Namibian society arising out of past discriminatory laws or practices, or for achieving a balanced structuring of the public service, the police force, the defence force, and the prison service.

(3) In the enactment of legislation and the application of any policies and practices contemplated by sub-article (2) hereof, it shall be permissible to have regard to the fact that women in Namibia have traditionally suffered special discrimination and that they need to be encouraged and enable to play a full, equal and effective role in the political, social, economic and cultural life of the nation.”

The appellant was on 22 December 1991 a member of a panel under the aegis of the Namibian Broadcasting Corporation. The subject of the discussion was affirmative action and the restructuring of the police force, the public service and other such institutions. As a result of what the appellant said during the panel discussion he was charged with contravening Regulation 58(32) published under the Government Notice 719 dated 14 February 1964 as amended:

“In that at Windhoek, on 22 December 1991, he wrongfully and unlawfully commented unfavourably in public upon the administration of the Force by saying the following on a television programme “Spotlight” broadcast (ed) by the NBC:

‘The command structure of the Namibian police force is determined to undermine the goverment's policy of national reconciliation and if possible to cripple the government through corruptions and other irregularities. We have only one group of people, the whites, who are occupying the positions of command and this seniority and the seniority facilitate corruption and abuse of power. If I may recall the high treason case of Kleynhans and his group of white terrorists, then I mean police sort of supplied them with weapons and ammunition, because no one of the commanding officers or the commanders of the unit that suffered the loss of armoury were held responsible or at least charged with acts of negligence or collaboration. The circumstances surrounding the case were very suspicious and that is the hangover of the Namibian police executive i referred to. We are sitting with wrong people in wrong positions.”

The hearing of these charges was set down for 2 March 1993. Appellant's attorneys applied for postponement of the hearing pending the hearing of an application filed by the appellant in the High Court challenging the constitutionality of Regulation 58(32) vis-à-vis article 21 of the Constitution.

The application was heard on 14-16 March 1994 by a full bench of the High court. The court a quo found:

“(a) That the regulation complies with the provisions of article 21(2) of the Namibian Constitution in that it:

(i) Imposes reasonable restrictions on the exercise of the rights and freedoms contained in sub-article (1) of article 21, including on the freedom of speech and expression:

(ii) The restriction are necessary in a democratic society: and

(iii) are required in the interests of sovereignty and integrity of Namibia, national security and public order.

(b) …….
(c) In the alternative, in the light of my conditional assumption of the applicability of the doctrine of ”over breadth” as set out supra, I find:
(i) The regulation is not overbroad; alternatively,
(ii) It is not substantially overbroad;
(iii) It is not unconstitutional

The application was dismissed with costs.

The appellant now appeals to this court against the whole judgment of the court a quo which is reported at 1995 (1) SA 51 (NM).

The subject of free speech is a wide and rumbling one. Many things have been said and written about the right to freedom of speech and expression. We understand why the learned judge a quo who wrote the judgment for the court carried out an enormous amount of research and produced such a lengthy judgment. We appreciate the hard work put into it.

Our attention was, however, drawn by counsel who appeared before us to the fact that the court a quo made several findings in relation to which counsel who appeared in the court a quo expressly disclaimed reliance. In this regard they pointed out that they did not rely on onus and yet the court a quo found that it was up to the appellant to persuade the court that the restriction on the fundamental right was not a permissible one. The court a quo also found that appellant's speech constituted delictual as well as criminal defamation; and was in breach of other persons' fundamental rights to dignity, equality and non discrimination and, prima facie it was in breach of section 11 of the Racial Discrimination Prohibition Act of 1991, and further that the power to restrict a fundamental right as contemplated in article 21(2) of the Namibian Constitution should not be narrowly interpreted.

Counsel also pointed out the court a quo raised several aspects in its judgment which were not advanced by either counsel in the court a quo or canvassed by them. In relation to these counsel said they were not heard. These were:

(a) The question of non-joinder of officers in the command structure of the Namibian Police force:

(b) The threatened infringement of Appellant's right to a fair trial. In this regard O'Linn J said at 58J of Kauesa v. Minister of Home Affairs & Orthers (Supra)
“I will assume for the purposes of this application, even though there is no express reliance on the fundamental right to a fair trial, that the applicant relies by implication, also on a threatened infringement of the fundamental right to a fair trial on the basis that a trial is pending wherein he is charged with a regulation which is unconstitutional, in that it infringes his freedom of speech.

(c) The application of affirmative action policies in public service employment: and

(d) The constitutionality of certain provisions of the Racial Discrimination
Prohibition Amendment Act of 1992

Mr. Gauntlett, for the respondents, informed the court that the constitutionality of section 11(1)(b) of the Racial Discrimination Prohibition Act of 1991 was to be determined on 25 April 1995 in S v Gorelick NO and others. He submitted that that matter was not directly material to the outcome of the instant case and that it was inappropriate for the issue of constitutionality to be determined on a prima facie basis. We agree with him.
The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly the litigants' case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not the judicial officer.

It would be wrong for judicial officers to rely for their decision on matters not put before them by litigants neither in evidence nor oral or written submissions. Now and again a judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides an to invite them to submit arguments either for or against the judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide-ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position. Are we to consider every opinion expressed in the judgment however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued? In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.

Before leaving this aspect of the appeal we consider it appropriate to refer to what was said by Bhagwati J (as he then was) in MM Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:

“It is the settled practice of this court to decide no more than what is absolutely necessary for the decision of a case.”

We respectfully endorse those words, particularly when applied to constitutional issues and commend such a salutary practice to the courts of this country. Constitutional law in particular should be developed cautiously, judiciously and pragmatically if it is to withstand the test of time.

It is proper to remember that when constructing a provision in a Constitution the words used should carry their ordinary meaning and content. To read into them extraneous meanings through comparing their meaning to words used in an ordinary Act of Parliament such as the Racial Discrimination Prohibition Act results in the distortion of the meaning, in our respectful view, of article 21(1)(a) and (2) of the constitution.
Article 21(1)(a) and (2) read
“(1) All persons shall have the right to:

(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning;
(c) freedom to practice any religion and to manifest such practice;
(d) assemble peaceably and without arms;
(e) freedom of association, which shall include freedom to form and join associations or unions, including trade unions and political parties;
(f) withhold their labour without being exposed to criminal penalties;
(g) move freely throughout Namibia;
(h) reside and settle in any part of Namibia;
(i) leave and return to Namibia;
(j) practice any profession or carry on any occupation, trade or business.