Testing the Waters of Transparency: The Impact of Namibia’s Access to Information Act on Constitutionalism

Author: Dunia P. Zongwe
Associate Professor, Alliance School of Law, India; and Adjunct Associate Professor, Walter Sisulu University, South Africa

Abstract

This paper decodes the right to access information (RAI) in the newly enacted Access to Information Act in Namibia. Passed by Parliament in 2022, this Act came on the heels of the infamous ‘Fishrot’ Files, the country’s ugliest corruption scandal, uncovered through massive information leaks. This paper evaluates the efficacy of the Act in advancing the goals of constitutionalism by enabling individuals to access information robustly and transparently, thereby holding the ruling elite accountable to the public.

This paper unfolds in four steps. It begins by describing the loopholes that existed in the law before 2022, pondering what these lacunae imply for constitutionalism. Next, the paper dissects the RAI in theory, doctrine, and as presented in the Access to Information Act 8 of 2022. It then examines the Act’s provisions on RAI against the provisions laid out in the 2013 Model Law on Access to Information for Africa, highlighting key parallels. Lastly, drawing on those parallels, the paper assesses whether the RAI, as consecrated in the 2022 Act, advances the goals of constitutionalism. The paper argues that, by excluding from its scope Cabinet deliberations, the Act watered down the presumption of disclosure, and, in that sense, it failed to close the last loopholes that allowed the executive branch to evade accountability. This paper adds to the relevant literature by revealing that implementing the RAI and the disclosure presumption may constrain the executive more effectively than the other organs of the state.

1 Introduction

In January 2022, the High Court of Namibia held that the government cannot invoke the secrecy and confidentiality of Cabinet documents when the people requested such documents without justifying why it invokes such secrecy. Indeed, the Attorney-General v Gondwana Collection Ltd (hereinafter ‘Gondwana’) shows how access to information, including information contained in Cabinet documents, can serve to hold the sovereign to account to his subjects. Conversely, the case proves that unjustified opacity and secrecy may adversely affect fair trial rights and, more generally, shield the executive branch from accountability.

Later, in December of the same year, and in the wake of Namibia’s ugliest corruption scandal – the infamous ‘Fishrot’ Files – the country’s Parliament took a decisive step toward heightened transparency by enacting the Access to Information Act 8 of 2022. This legislation does not just respond to a moment of crisis. Rather, it marks a considerable shift toward constitutionalism, offering citizens a mechanism to hold the officialdom accountable.

This paper evaluates the effectiveness of the newly passed Access to Information Act in advancing the goals of constitutionalism in Namibia by enabling robust and transparent access to information.

2 The legal landscape before 2022

Before the Windhoek-based Parliament passed into law the Access to Information Act 8 of 2022, the legal framework for accessing information in Namibia was riddled with loopholes. These loopholes allowed the state bureaucracy to evade public scrutiny and worked against the principles of constitutionalism. The Gondwana case mentioned above and Director-General of the Namibian Central Intelligence Service v Haufiku (hereinafter ‘Haufiku’) illustrate this pre-2022 situation.

In particular, in Haufiku, the Supreme Court of Namibia rejected the appeal by the Namibian Central Intelligence Service (NCIS), which sought to prevent a local newspaper from publishing information about alleged corruption in the NCIS. In rejecting the NCIS’s appeal, the court observed that the government did not produce evidence to show that publishing that information would breach any law or that the newspaper obtained that information illegally. The court ruled that the notion that renders courts powerless once the executive invokes secrecy and national security, without making a case for protecting secret information, does not align with the values of an open and democratic society based on the rule of law.

The absence of an organised mechanism to access information systematically weakened the checks and balances that ground a constitutional democracy. Such gaps in the law contributed to instances of corruption and opacity, as exemplified by the Fishrot Files scandal – an elaborate kickback scheme in the fisheries sector exposed in November 2019 and implicating senior government officials in Namibia and corporate interests in Iceland, among others. The scandal was unearthed mainly thanks to information leaks, revealing more broadly that Namibian law lacked a legitimate mechanism for disclosing such vital information to the citizenry. These loopholes indicated that the pre-2022 landscape failed to conform to constitutional values such as transparency and accountability.

3 Namibia’s Access to Information Act of 2022

Section 30 of Namibia’s Right to Information Act enshrines the right to access information (RAI). As a concept, this right constitutes one of the fundamentals of constitutional governance. Namibia’s Act is rooted in this very principle. In adopting the Act, the legislature sought to promote and protect information “in a form and manner that facilitates transparency, accountability, good governance, and access to information.” It aimed to entitle citizens and organisations to request information from public and, to some degree, private entities.

Crucially, the Act embodies a “presumption of disclosure”. Section 4(c) lays down that the RAI rests on the principle that “this Act and any other law, policy or practice creating a right of access to information is interpreted and applied on the basis of a presumption of disclosure, and that non-disclosure is permitted only under exemptions as set out in this Act or any other law.”

As one of the Act’s general principles, this presumption implies that people should access all information, unless a valid reason exists for the information holder to withhold it. This presumption radically shifts power dynamics and imposes a duty on the administration to act transparently. Still, an agency may find or invent reasons for it to avoid disclosing information. That may explain why section 4(c) of the Act adds that it only permits non-disclosure “under exemptions as set out in [the] Act or any other law”. The Act devotes Part 9 entirely to exempt information while section 29 empowers the Information Commissioner to exempt certain categories of public entities from any obligations under the Act.

The Act balances the right to access information, on the one hand, and national security, the privacy of individuals, and commercial interests, on the other hand. Although it authorises public and private entities to exempt certain information from disclosure, the Act specifies the conditions under which public interest may override security, private, and commercial interests, thus empowering people to nonetheless access that information under those conditions. To sum up, public and private bodies may avoid disclosing certain information due to its classified nature, security concerns, personal privacy, legal privilege, or its commercial sensitivity. These entities may also withhold information related to academic and professional examinations, as well as recruitment processes.

While the provisions of Part 9 seem to give the executive a myriad of reasons to avert disclosure, the Act actually subjects those valid reasons to the public interest. More specifically, section 64 obliges entities to grant access to information if disclosing that information would reveal evidence of serious and imminent law violations, risks for public health, safety or the environment; and if the public interest demonstrably outweighs the interest protected by the particular exemption. Relevantly, section 64(a) charges entities with a duty to disclose information where the disclosure would reveal evidence of corrupt activity. This duty capacitates individuals, including journalists, to unearth shady activities and prevent Fishrot-like graft.

4 Alignment with the 2013 Model Law on Access to Information for Africa

To better understand the Act’s efficacy, people and lawyers should compare the Act against an established framework. The 2013 Model Law on Access to Information for Africa (‘the Model Law’) serves as a benchmark that suits the unique circumstances of countries on the continent. This model law, developed by the African Commission on Human and Peoples’ Rights, sets out best practices for African jurisdictions to adopt concerning access to information.

The Namibian Access to Information Act has incorporated some provisions of the Model Law. However, the extent of the incorporation varies, and not all provisions of the Model Law feature in the Namibian Act.

One clause identified in both the Model Law and the Namibian Act is the establishment of an independent and impartial regulatory body to oversee access to information. The Model Law emphasises the appointment of an Information Commissioner and Deputy Information Commissioners. Likewise, section 5 of the Namibian Act authorises the appointment of an independent and impartial Information Commissioner and Deputy Information Commissioners.

Both laws also require public entities to create, keep, organise, and maintain information in a manner that facilitates transparency, accountability, and access to information. This requirement ensures that public entities in Namibia are responsible for managing information in a way that promotes the RAI.

Thirdly, the Model Law and the Namibian Act recognise the right of individuals to access information held by public and private entities. They outline the procedures for requesting access to information, the grounds for refusing it, and the mechanisms for internal review, appeal, and judicial review of decisions on access to information.

However, the Namibian Act does not fully embody all provisions of the Model Law. The Model Law guides African nations comprehensively on diverse aspects of access to information, including proactive disclosure, protection of whistleblowers, and the promotion of open data. The Namibian Act does not reflect these specific stipulations in every respect.

Another difference is the presence of provisions in the Act tailored to the Namibian context. For instance, the Act defines “classified information” in relation to the Namibia Central Intelligence Service Act 10 of 1997.

Overall, the Namibian Act largely aligns with the Model Law. This alignment suggests that Namibia has embraced an across-the-board approach that keeps up with international best practices.

5 Advancing constitutionalism

One major facet of the Access to Information Act relates to the question whether it helps advance the goals of constitutionalism. On this count, the Act shows considerable promise. Firstly, the presumption of disclosure actively eliminates most of the earlier loopholes, effectively constraining the executive branch’s capacity to shirk accountability.

Secondly, by adhering to principles outlined in the Model Law on Access to Information for Africa, Namibia’s Act demonstrates a commitment to harmonising its laws with recognised international standards. This adaptation strengthens the Act’s efficacy and endorses broader principles of human rights and democratic governance.

However, the Act is not without its hurdles. Enforcement remains an area of concern, as the mechanism for accountability is still evolving. Moreover, shifting office culture from secrecy to (more) transparency proceeds slowly, and bureaucracy may still impede this shift.

Essentially, by stipulating that it does not apply to information relating to Cabinet proceedings and decisions, the Act appears to ‘contradict’ the High Court decision in Gondwana. Indeed, section 2(2)(a)(i) of the Act excludes “proceedings and decisions of the Cabinet and its committees” from its scope of application. (Note that, one year after the President promulgated Namibia’s Access to Information Act, the Supreme Court reversed the High Court judgment in Gondwana, ruling that the courts cannot order a non-party (i.e., the government) to produce documents, even if the right to a fair trial is at stake.)

I argue that this exclusion of Cabinet decisions from the Act’s scope severely dilutes the force of the disclosure presumption. Namibian lawmakers would have better protected the RAI through two clauses: First, they should have brought Cabinet decisions and proceedings under the Act’s purview as an exception to the presumption disclosure; second, they should have placed the onus on requesters (i.e., information seekers) to show that the secrecy of Cabinet deliberations would conceal evidence of serious illegal or corrupt activity. Lawmakers should have mandated disclosure of Cabinet deliberations by drawing on section 64 of the Act whenever such disclosure defends the public interest, especially when disclosure would unveil evidence of corrupt activity or violations of the rights and freedoms consecrated by the Constitution. In short, Parliament should have made the secrecy of Cabinet deliberations prima facie lawful, until an individual requester proves the contrary in a given case.

6 Conclusion

Namibia’s Access to Information Act 8 of 2022 represents a watershed milestone as the country marches toward deeper constitutionalism and better governance. It incorporates the bulk of the Model Law’s provisions and espouses international best practices, thereby showing immense promise in fostering more transparent, accountable governance. While challenges in enforcement and cultural adoption remain, the Act has set the stage for a future where the ruling elite can be held to a higher level of popular scrutiny. Most importantly, the Act – above all, the disclosure presumption – closes nearly all loopholes in the law and it thus helps lay a stronger foundation for the principles of democracy to thrive.

Regrettably, Namibia’s Access to Information Act does not expressly anchor itself in any provisions of the Constitution. In particular, it dictates that it must be interpreted in light of the Constitution, but it does not pinpoint the constitutional provision from which the RAI flows. I submit that the RAI originates from the right to freedom of expression protected in Article 21(1)(a) of the Constitution. Freedom of expression comprises freedom of the press and the right to receive and impart information.

Crucially, by leaving out of its scope the decisions and proceedings of the Cabinet, the Access to Information Act waters down the disclosure presumption. This is the lingering loophole, which – if left unchecked – may pave the way for the next big corruption scandal. This last major loophole will make it possible for the authorities to escape the people’s scrutiny when that scandal breaks, if it ever breaks.

Nevertheless, the real test of this Act ultimately lies in the extent to which the state and citizens implement it in practice. Meanwhile, this legislation, fueled by the lessons learned from the Fishrot Files, serves as a testament to constitutionalism and as an example worth studying, not just within the context of Namibia, but for any nation aspiring towards greater transparency and accountability.

About the Author:

Dr. Dunia Prince Zongwe serves as an Associate Professor at Alliance School of Law, India; and Adjunct Associate Professor at Walter Sisulu University, South Africa. He earned his JSD and LL.M. degrees from Cornell University, USA; an LL.B. (cum laude) at the University of Namibia; and a certificate (humanities) from Université de Montréal. He specialises in finance, law and economics, international law, human rights, and development, focusing on Africa and the Global South. Overall, he has published four books and about 60 papers, chapters, and articles in journals such as American University International Law Review, African Studies Review, Peking University Journal of Legal Studies, and Southern African Public Law.