Stats Bill ‘unconstitutional’By: CATHERINE SASMAN
THE Legal Assistance Centre (LAC) says the proposed Article 35 of the Statistics Bill, now before Parliament, places an unwarranted restriction on private research institutions and is “probably” unconstitutional.
According to the LAC, the article conflicts with provisions of the Namibian Constitution that guarantee freedom of expression, thought, conscience and belief, and, in some cases, may offend the right to practise any profession or carry on any occupation, trade or business.
Article 35 states that only the Statistician General, who would head the Namibian Statistics Agency, may commence, vary or discontinue any statistical collection.
The Article further states that no person or government body may authorise the commencement of a statistical collection without the approval of the Minister, which in this case refers to the Director General of the National Planning Commission, acting after consultation with the Statistician General.
The LAC said it is possible that permission to do research could be conditioned on an agreement that requires a private body wishing to make statistical collection to work in partnership with Government or some other body identified by the Statistician General as a condition for permission.
Such provisions in the Bill could limit the ability of non-governmental organisations to make statistical analyses of their own internal records.
The LAC said it would be acceptable if Government imposed a reasonable permission requirement for the private use of unpublished public records, and that access to such data should be organised in line with international principles of public access to information “as a cornerstone of democracy”.
It said where access to official information is denied to any researcher engaged in a bona fide statistical collection, the person responsible for granting or denying such access should state – in writing within an acceptable time frame – why the data cannot be made available.
In the event of a refusal, it said, the Bill could provide for an appeal to the Statistician General, or to the board of the National Statistics Agency, with an ultimate right to appeal to a court of law.
The LAC similarly raised concerns about the fairness and constitutionality of certain clauses – 40 and 43 – saying that these ought to be amended.
Clause 40 states that the Statistician General can direct any person to complete and return documents, answer any question asked by an authorised officer, and provide any document, copy or extract from any record within a specified time.
Clause 43 provides the imposition of an administrative penalty by the Statistician General, with a right to appeal to the minister.
The LAC said there is no right of appeal to a court in this situation, which once again, raised constitutional issues.
The LAC said, depending on the information sought, provisions of the bill could infringe on the right to privacy of homes, correspondence and communications.