UNIVERSITY OF NAMIBIA

FACULTY OF COMMERCE, MANAGEMNET AND LAW

SCHOOL OF LAW

BACHELOR’S DEGREE IN LAWS (LLB) HONOURS

HUMAN RIGHTS LAW (JHR 3761 )

LECTURER: Dr J NAKUTA

ASSIGNMENT 1 OF 2022

DUE DATE: 15th May 2022

Group Members Student Numbers

Remember NH Silas 219381278
Saima K Hashipala 219375213
Kongeni Ankome 219255657
Tangi Kapapero 219374544
Brian Libuto 202025594

Group 17- Freedom of expression

1
Contents
1. Introduction ............................................................................................................................. 3
2. Constitutional Guarantee of the freedom of expression in Namibia. ....................... 4
3. Limitations on The Right to freedom of expression under the Namibian
Constitution ..................................................................................................................................... 5
4. International Framework on the right to Freedom of expression ............................. 6
5. Precedents on Freedom of Expression in Namibia ...................................................... 9
6. Conclusion ............................................................................................................................. 10

2
 1. Introduction

Freedom of expression is one’s ability to convey opinions, convictions, and beliefs,

and to meaningfully participate in a functioning democracy without censorship from
the state. Many countries have constitutional law that protects freedom of
expression, it is a globally recognized human right and a pillar to democracy.1 At the
core of our country's independence and transformation into a democracy was the
coming into effect of the constitution in 1990 and because of the constitution and
global human rights people are now able to enjoy their right to freedom of
expression. However, this has not always been the case, under apartheid regime the
state enforced severe forms of censorship to limit the range of political speech and
denying freedom of expression to indigenous people.2 The apartheid government
controlled the press, established laws that prevented journalists and people from
speaking against the regime.3

They achieved this through intimidation, torture, imposing of heavy fines,

imprisonment and the burning down of newspapers. The most popular incident was
when In 1988, The Namibian head-office in Windhoek was firebombed by the so
called right-wing White Wolves of the apartheid-colonial in order to stop the
newspaper from publishing positive articles about SWAPO movement.4These
restrictions did not only constitute a denial of democracy They also exacerbated the
impact of the systemic violations of fundamental human rights of Namibia.5 The sour
history under apartheid stirred and empowered people especially young people after
independence to exercise their right to freedom of expression liberally . The right to
freedom of speech has developed greatly through the years and the internet is a
huge contributory factor for that. freedom of expression on the Internet is on the rise
and a lot of young people make use of social media platforms to exercise their rights
to freedom of speech with no restrictions. This right, is however not without

1
Gunatilleke, G.2020. Justifying Limitations on the Freedom of Expression. Available at
https://link.springer.com/ ; last accessed 14/05/2022.
2
2005. The Namibian Newspaper and its Editor: Politics and Journalism. The Namibian Newspaper,P1.
3
ibid.
4
Ibid.
5
ibid.

3
limitations and this limitation might imposes a fear of speech to some degree. This
paper will the focus on the depth of freedom of expression and its limitations.

From comments made on various social media platforms such as Twitter, by the
youth it is fair to say they are often labeled to behave and say rude remarks towards
our leaders’ example was the reckless remarks made towards the first lady on
twitter:

(a) “Monika must just shut her mouth, we are tired of corruption in Namibia they
think we are scared to be jailed. Truth hurts always”.

(b) “Madam first lady differentiate between state affairs and family. Know your
jurisdictions, let the vice-president, prime minister and presidential
spokesperson to defend the president. Namibians are tired don’t take it as a
joke young lady.”

A question that comes to mind looking at the above comments is to identify whether
the youth in this case has overstepped their right to Freedom of Expression and what
limits are imposed upon this right.

2. Constitutional Guarantee of the freedom of expression in

Namibia.

The right to freedom of speech and expression, which includes freedom of the press
and other media is enshrined in Article 21(1)(a) of the Namibian Constitution.6 This
right is entrenched within Chapter 3 of the Constitution also known as the Bill of
Rights. Article 21(1) states that states that all persons shall have the right to freedom
of speech and expression, which includes freedom of the press and other media.7

Article 95(k) declares that government will promote policies aimed at

"encouragement of the mass of the population through education and other activities
and through their organizations to influence Government policy by debating its
decisions".8 This article makes a further accommodation for the full realization of the

6
The Constitution of the Republic of Namibia, Article 21(1)(a).
7
ibid. Article 21(a).
8
Article 95(k). The constitution of the Republic of Namibia

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right to freedom of expression by allowing its citizens to engage in debates that my
influence government policies.

(i) Right Holders (Beneficiary) of the right to Freedom of expression

All citizens regardless of age, gender, ethnicity are beneficiaries of the rights to
freedom of expression herein and all-natural persons are duty bearers to uphold and
respect those rights. Most of the rights in the bill of rights are for the benefit of
everyone including the right freedom of expression.

(ii) The Duty Bearers of the right to freedom of expression

Essentially, duty-bearers are those actors who have a particular obligation or

responsibility to respect, promote and realise human rights and to abstain from
human rights violations. The term is used colloquially to refer to State actors, as well
as nonstate actors.9The natural persons have an obligation to protect, respect and
fulfil the rights of their fellow citizens or neighbours as stated above. There is a direct
vertical relationship between the state and its citizens. The bill of rights is the
ultimate test for the conduct of the Executive.

3. Limitations on The Right to freedom of expression under the

Namibian Constitution

The right to freedom of expression is not absolute, and also does not automatically
trump the enjoyment of other rights, such as the rights to dignity or privacy, which
are also constitutionally enshrined. This requires a balance to be struck amongst the
competing rights and interests at stake.

The right to freedom of expression may not be derogated from or suspended by any
individual, legal practitioner or court of law.10 Even though the right may not be
derogated from or suspended, it may be limited in accordance with the terms set out
in article 22 of the Constitution, which states that when the fundamental rights and
freedoms set out in Chapter three of the Constitution are being limited, the limitation

9
UNICEF, n.d. Gender Equality - UN Coherence and You – Glossary: Available at: UNSDG | Gender Equality, UN
Coherence and You (undg.org). Last accessed on 15 May 2022.
10
ibid. Article 24(3).

5
must apply generally, it must not contradict the key aspects of the Chapter and the
limitation must not be directed at a specific person.11

There are three regulations amongst the Namibian statutes that have been
recognized as being particularly intimidating to freedom of speech and expression in
the country, namely:

• The Protection of Information Act 84 of 1982- This act provides for the
protection from disclosure of certain information; and to provide for matters
connected therewith.

• The Prevention and Combating of Terrorist and Proliferation Activities Act 4 of

2014.

4. International Framework on the right to Freedom of expression

The International laws and agreements are binding upon Namibia by (virtue) of
Article 144 of the Constitution, unless otherwise stated by the Constitution itself or an
Act of Parliament.12 This means that all international laws ratified by Namibia, are
binding in Namibia.13 These laws therefore include the Universal Declaration on
Human Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, also known as the
International Bill of Rights, to name a few.

The right to freedom of expression was first encapsulated in article 19 of the UDHR,
which provides that:14 - “Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of
frontiers.” Article 15(3) of The International Covenant on Economic, Social and
Cultural Rights specifically refers to the freedom required for scientific research and
creative activity, providing that:15 - “The States Parties to the present Covenant

11
Article 22 of the Namibian Constitution
12
Ibid. Article 144.
13
Ibid.
14
Universal Declaration of Human Rights.
15
The International Covenant on Economic, Social and Cultural Rights

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undertake to respect the freedom indispensable for scientific research and creative
activity.”

At its core, the right to freedom of expression – as framed in the International

Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human
and Peoples’ Rights (African Charter) – is made up of three interrelated rights that
apply equally online and offline:

• The right to hold opinions without interference

• The right to seek and receive information

• The right to impart information.

The African Charter on Human and People’s Rights (hereafter referred to as

“ACHPR”), as reinforced by the Declaration of Principles on Freedoms of
Expressions in Africa16, states that every person shall have the right to receive
information and the right to express and publish their opinions.17 The opinions should
however be within the limits of the adequate freedom of expression.18 The
Declaration of Principles on Freedoms of Expressions in Africa reaffirms the
significance of the freedom of expression as human right, and how upholding this
right is essential to democracy and making sure that human rights and freedoms are
respected.19 In line with article 9 of the African Commission on Human and Peoples'
Rights, the right to freedom of expression and information including the right to seek,
provide or receive ideas either verbally, in print or in writing is guaranteed.20 This
alludes that everyone is entitled to total freedom of expression even though they live
in a society filled with inequalities.21 Everyone is entitled to an equal opportunity to
exercise freedom of expression.22

16
African Commission on Human and Peoples’ Rights. 2002. Declaration of Principles on Freedom of
Expression in Africa. Available at https://www.achpr.org/presspublic/publication?id=3 Last Accessed: 09 May
2022.
17
African Charter on Human and Peoples’ Rights, Article 9.
18
Ibid.
19
Ibid.
20
African Commission on Human and People’s Rights. 2002. Declaration of Principles on Freedom of
Expression in
Africa. Available at https://www.achpr.org/presspublic/publication?id=3 Last Accessed: 09 May 2022
21
ibid
22
ibid

7
It therefore important to highlight that General Comment No. 34 of the UN Human
Rights. Rights. Committee recognizes the freedom of expression as an essential
component realization of the principles of transparency and accountability that are a
necessary condition for the promotion and protection of human rights. 23 The freedom
of expression is therefore indispensable in the process of enabling the public in
calling out public figures and political authorities and in holding them accountable for
their actions.24 Freedom of opinion as envisaged in paragraph 1 of article 19 is
interpreted to mean that such a right extends to the right to change opinion
whenever and for whatever reason a person so freely chooses. No person may be
subjected to the impairment of any rights under the covenant based on his or her
actual, perceived or supposed opinions.25

The right to freedom of expression is subject to limitations in accordance with the

law,26 it also carries duties and obligations under the International Covenant on Civil
and Political Rights.27 The three requirements outlined in the covenant for the
limitation of the right to freedom of expression are legality, necessity and a legitimate
objective.28 First and fore most legality affords the authorities a wide interpretation to
limit expression and to does not do an adequate job on educating individuals on how
to differentiate unlawful behavior from lawful behavior, this broad limitation may allow
for the punishment of expression that should not be liable to limitation.29

Necessity calls for States to indicate that the mechanisms implemented to attain a
legal objective are necessary and correspond with the obligation to protect human
rights or national security, amongst others, there must be evidence of a direct link
between a threat to these objectives and the expression of the opinion in question.30

23
General Comment No. 34 of the Human Rights Committee. Article 19: Freedoms of Opinion and Expression.
Available at https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx
24
Ibid. General Comment No. 34.
25
Human Rights Committee: International Covenant on Social and Political Rights. General comment No. 34.
(2011). “Article 19: Freedom of Opinion and Expression”. Page 2.
26
General Comment no.34
27
International Covenant on Civil and Political Rights. 1996. Article 19(3).
28
The 2016 Report of Special Rapporteur to the General Assembly on the Contemporary Challenges to
Freedom of Expression. Available at https://www.un.org/ga/search/view_doc.asp?symbol=A/71/373 Last
Accessed: 09 May 2022.
29
Ibid.
30
Ibid.

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When a State limits the right of expression in order to achieve a legal objective to
protect human rights, public order, national security, the reputations of others, or
public health or morals. The objective of national security can only be utilized if the
expression of the opinion is a threat to the interests of the nation as a whole and not
just a particular group of people.31

5. Precedents on Freedom of Expression in Namibia

In the infamous case of Kauesa v Minister of Home Affairs,32 Mr. Kauesa a police
officer appeared on NBC for a discussion of affirmative action.33 He stated the white
officers in the command structure of the police force were determined to undermine
the government’s policy on reconciliation, facilitated corruption and abused their
power.34 The Namibian police started disciplinary proceedings against Mr. Kauesa due
to his remarks but Mr. Kauesa contended that regulation 58(32) was contrary to the
provisions of article 21(1)(a) guaranteeing the right to freedom of expression.35 Upon
appeal, the Supreme Court decided in his favour and held that freedom of speech in
Namibia "is essential to the evolutionary process set up at the time of independence
in order to rid the country of apartheid and its attendant consequences.36 The court
further stated that, an underlying principle of the constitution implicit from the Preamble
and article 1 is the doctrine of constitutionalism, which means government according
to law rather than whims or caprices of individuals in the government and that in order
to live and, maintain a democratic state, the citizens must be able to speak free,
criticize and praise where praise is due.37 Muted silence is not an ingredient for
democracy because the exchange of ideas is necessary for the development of a
democracy.38 Lastly, the court stated that any limitation of a right must be interpreted
strictly, so that individuals do not unnecessarily lose the enjoyment of their rights.39

31
Ibid. Annual Report (2016).
32
1995 NASC 3
33
ibid
34
ibid
35
ibid
36
ibid
37
ibid
38
ibid
39
ibid

9
As a result, it defined freedom of speech extremely widely, and set a very liberal
example of purposive constitutional interpretation.40

6. Conclusion
The right to freedom of speech has developed greatly through the years and the
internet is a huge contributory factor for that. Freedom of expression on the Internet
is on the rise and a lot of young people make use of social media platforms to
exercise their rights to freedom of speech with no restrictions. This exercise of their
right often deemed or seen as disrespectful and obnoxious especially remarks made
against leaders in different branches of government or elders. As stated by David
Kaye “Freedom of expression provokes controversy, reaction and discourse, the
development of opinion, critical thinking, even joy, anger or sadness, but not
punishment or sadness, fear and silence.”41

Freedom of expression is the cornerstone of a healthy, functioning democracy. It is

significant in that regard. A nation demonstrates the value it places on human dignity
when each person can speak freely and express themselves through speech, art,
literature and other means of expression. This equally means that Namibia prides
herself in being a democratic state especially because her citizens exercise their
democratic right to express. A state is not fully democratic if its citizens are shut and
prevented from expressing. Young people may however not express their views in
the manner deemed to be right by those in an older age group, most especially the
elders in the forefront of law making. In as much as they have the full right to enjoy
their right to freedom of expression, it must be done in a way that allows for the next
person to respond, learn and not that it silences them or even worse reduce them to
fear.

Freedom of expression is a tool in disguise. A significant tool we use as a country to

give opinions that lead to growth like the discussions young people have namely the
‘Be free’ discussion amongst many others which is an initiative by the first Lady of

40
Horn, N. 2009. Freedom of Expression and Hate Speech in Namibia. Available at
https://www.kas.de/c/document_library/get_file?uuid=f0b71f82-e8d3-9d8c-a2d1-
13ed3672804a&groupId=252038 last accessed 09 May 2022
41
Kaye, D . 2016 . The Promotion and protection to Right to Freedom of expression and opinion. New York:
united nations digital library, p1.

10
the Namibia held so that the youth can engage on matters affecting them. Freedom
of expression is also a vital tool that can be used as a criterion for critical thinking; it
is through critical thinking that brilliant ideas are made. The criticism towards young
people and the labelling of rude and impatient is however valid. Valid in a sense that
once something is ignored continuously the result and response may come in form of
rudeness and impatience. The leaders have from time to time ignored the plights and
demands of young people.

Young people unfortunately fail to express properly on social media platforms

especially ‘twitter’. For illustration’s sake Our First Lady has received numerous
mean commentaries on her twitter being labelled a ‘gold digger’, ‘manipulative’ and
an ‘empty headed bad example to adolescent girls.42 Such usage of the freedom to
express is majorly wrong especially to an elder who holds the calibre of being the
mother of the nation or someone who embodies a mother to all citizens rather. Thus
if the youth is misusing their freedom to expression the states can implement
limitation on this right in accordance with the constitution. Freedom of expression
does not only empower young people to be able “to stand up for themselves”. Young
people should use their right to freedom of expression to promote the enjoyment of
socio-economic rights, such as the right to education, the right to an adequate
standard of living, and the right to health and welfare. 43

42
African Press Namibia. 2021. Namibia’s first lady Monica Geingos fights social media troll. Found at :
Namibia’s first lady Monica Geingos fights social media trolls (headtopics.com) :last accessed 8th of May 2022.
43
Benedek,, W and Kettemann, MC.2013 . FREEDOM OF EXPRESSION AND THE INTERNET.Paris: Council of
Europe publishing, p23.

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Bibliography

Legislation

Constitution of the Republic of Namibia 1990

African Charter on Human and Peoples’ Rights

International Covenant on Civil and Political Rights 1996

Universal Declaration of Human Rights.

The International Covenant on Economic, Social and Cultural Rights

Books

Benedek,, W and Kettemann, MC.2013 . FREEDOM OF EXPRESSION AND THE

INTERNET.Paris: Council of Europe publishing.

Cases

Kauesa v Minister of Home Affairs and Others 1995 NR 175 (SC)

Internet Sources

African Press Namibia. 2021. Namibia’s first lady Monica Geingos fights social
media troll. Available at : Namibia’s first lady Monica Geingos fights social media
trolls (headtopics.com)

Beacon for Freedom of Expression.(1996). South African Regime of Apartheid.

Available at https://searchbeaconfreedom.org/about_database/south%20africa.html

African Commission on Human and Peoples’ Rights. 2002. Declaration of Principles

on Freedom of Expression in Africa. Available at
https://www.achpr.org/presspublic/publication?id=3

Horn,N.2009. Freedom of expression and hate speech in Namibia. Available at

http://www.kas.de/upload/auslandshomepages/namibia/Namibia_Law_Journal/09-
1/horn1.pdf

12
General Comment No. 34 of the Human Rights Committee. Article 19: Freedoms of
Opinion and Expression. Available at
https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx

The 2016 Report of Special Rapporteur to the General Assembly on the

Contemporary Challenges to Freedom of Expression. Available at
https://www.un.org/ga/search/view_doc.asp?symbol=A/71/373

Horn, N. 2009. Freedom of Expression and Hate Speech in Namibia. Available at

https://www.kas.de/c/document_library/get_file?uuid=f0b71f82-e8d3-9d8c-a2d1-
13ed3672804a&groupId=252038 last accessed 09 May 2022

Gunatilleke, G.2020. Justifying Limitations on the Freedom of Expression. Available

at https://link.springer.com/

Newspaper Article

The Namibian Newspaper and its Editor: Politics and Journalism. The Namibian
Newspaper.

13