Aggrieved by these actions and facing prosecution on those charges, the applicants brought an application seeking a declaration that the two sections were unconstitutional and also orders setting aside the search warrants and the seizure of stock; and the return of the seized articles.
| 1. Fantasy Enterprises CC t/a Hustler The Shop v Minister of Home Affairs and Others Case No. A159/96 |
| 2. Louise Nasilowski and Others v Minister of Justice and Others Case No. 158/96 High Court of Namibia 29 April 1998 |
The applicants challenged the constitutionality of s 2(1) on the grounds that it imposed an unreasonable and constitutionally unjustifiable restriction on their rights to freedom of speech, expression and to carry on any trade as guaranteed by Article 21 (1) (a) and (j) of the Namibian Constitution. They also submitted that it infringed their right to privacy entrenched in Article 13 (1) of the Constitution. The court however declined to reach a finding on the infringement of the right to privacy.
The government did not oppose the application but, in view of its importance, the court invited the Attorney General to enter an amicus curiae brief.
The court emphasized the need to protect freedom of speech and its value in a democratic society noting that this value had been most recently stated by the Supreme Court of Namibia in Kauesa v Minister of Home Affairs and Others (1996 4 SA 965). The High Court also cited with approval, the philosophical justifications for freedom of speech as enunciated by Prof. T. Emerson in his book, The System of Freedom of Expression at p 6 and 7. Prof. Emerson points out that freedom of expression is important for four primary reasons:
First, it is necessary for the self-fulfilment of human beings. ATo cut off man=s search for truth, or his expression of it@ he says, AIs to elevate society and the State to a despotic command over him and to place him under the arbitrary control of others.@ Secondly, Emerson argues that free speech is an essential process for advancing knowledge and discovering truth. For an idea is not really true unless it can stand the test in a marketplace of ideas. The third justification of free speech is that it is crucial for participation in decision-making. Expression is important in forming individual judgements and in informing the common judgement.
Finally, Emerson argues that free speech is important Aas a means of achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus. Suppression of dissension makes rational judgement impossible, substituting force for reason.@ The court stressed that the concept of free expression extended to >non-political= discourse; including graphic expressions. It contemplated both the act of imparting and receiving information and ideas; and was not limited in content to that which could be regarded as pleasing, inoffensive or indifferent, but extended also to that which disturbs, offends or shocks [Sunday Times v UK (No 2) (1992) 14 EHRR 229 at 241; Martin v City of Struthers 319 US 141 at 143]. The Namibian Constitution only authorised certain specified derogations outlined in Art 21(2).
In testing the constitutionality of s 2(1), the court adopted the Kauesa test. The test provided that a legislative derogation would only be allowed to stand if (a) the law imposed a reasonable restriction on the exercise of the right in question; (b) that restriction was necessary in a democratic society; (c) that restriction was required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or required in relation to contempt of court, defamation or incitement to an offence.
The >claw-back= provisions of Art 21(2) should be restrictively interpreted Ato ensure that the exceptions are not unnecessarily used to suppress the right to the freedom guaranteed in Art 21(1)(a).@
The onus to prove that a legislative restriction fell squarely within the enabling provisions of Art 21(2) was on the party that relied on the enforceability of the provision. (Kauesa)
Finally, in interpreting a particular legislation, the court would allow the legislature a margin of appreciation, bearing in mind the fact that the law had been enacted by a body of democratically elected representatives of the people.
Applying these principles to s 2(1) of Act 37/67, the court held that while the objective of the law was a legitimate one, the manner employed to achieve it was problematic. The legislature seemed to intend Ato classify a virtually limitless range of expressions, from ubiquitous and mundane manifestationsYto the most exalted artistic expressions, as >indecent= or >obscene= simply because they contain oblique, isolated or arcane references to matters sexual, or deal frankly with a variety of social problems.@
Likewise, that Act did not distinguish on the basis of the age, personality or profession of persons who might come into possession of such matter. ADoctors, historians and psychiatrists are treated with the same sweeping brush as juveniles or children.@
The court opined that the impugned law had been passed by the legislature of a repressive colonial power (i.e. apartheid South Africa) at a time when Namibia did not have a Constitution of its own and that, therefore, there was little or no reason for allowing a margin of appreciation.
The fact that s 3 of Act 37/67 required consent from the Attorney General before a prosecution could be commenced did little to bring it within the constitutional requirements. AIt renders constitutional guarantees vulnerable to the personal attitudes and disposition of a particular incumbent in that office,@ the court held, citing A.G. v. BBC [1980] 3 All ER 161 (HL) The court concluded that s 2 (1) of Act 37/67 had been formulated in an overly broad manner not intended or carefully designed to prohibit possession only of such sexually explicit material as may be proscribed under Art 21 (2) of the Constitution. But it also prohibited the possession of graphic material which may be acquired or distributed in the exercise of a person=s right to freedom of expression under Art 21 (1) (a) of the Constitution. The section was therefore declared unconstitutional, and for that reason as of no force or effect.
S 17 (1) of Act 21/80 was declared vague, as it was not possible to define with precision what >unnatural acts= were prohibited, nor to ascertain whose >intention= the Act referred to. The effect of the vagueness as it related to the >minimum impairment= consideration was essentially the same as, and merged with, the related concept of overbreadth.
Njonjo Mue, Article 19,
with Clinton Light
Legal Advice Centre, Namibia.
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