The Research, Science and Technology Act was passed by parliament in 2004 but brought into force only in 2011 when its accompanying regulations were put in place. The act’s impact did not become clear until the regulations were issued, requiring government registration of all researchers and government permission for all proposed research projects – which led to the constitutional challenge and court order described below.
Concerns About Government Control of Research
Not long after the regulations were issued, the Legal Assistance Centre (LAC) raised concerns that the Research, Science and Technology Act and its regulations appeared to violate both the letter and spirit of the Constitution – particularly freedom of speech, thought and debate which help sustain any democracy.
The LAC’s comparative law research found that few if any democratic countries impose such tight state control on research initiatives.
Namibia’s legal framework utilises an overly broad definition of research and research institutes.
It describes research as the systematic investigation, analysis and study of materials, sources and the physical universe for the purpose of establishing facts, knowledge and conclusions – a definition so broad it would encompass many everyday activities we all carry out.
A research institute is also confusingly defined as a research, science or technological entity in the public or private sector that has research, science or technology as “a part of its activities”.
The initial framework required a research institute or an individual researcher based inside or outside Namibia to register with the commission before conducting any kind of research.
A research institute which failed to register was liable to a fine of up to N$20 000 or imprisonment of up to five years.
The initial regulations also required both Namibian and non-Namibian research institutes and individuals to submit a lengthy and detailed application for a research certificate in respect of every individual research project.
The commission was empowered to prohibit any further research by a research institute or researcher who failed to comply with the legal requirements, and such a prohibition could remain in place until the commission was satisfied the reason for it had fallen away.
Different Approaches
The act establishes a National Commission on Research, Science and Technology dominated by government appointees.
Its functions include monitoring and supervising the promotion, coordination, development and continuation of research, science and technology in all sectors in Namibia.
It is also tasked to minimise overlapping research.
But in fact, it is useful to conduct research on the same topic using different approaches and methodologies, to produce increasingly accurate information and intelligent critiques of previous research, and to demonstrate that research results can be replicated by other researchers as a means of validation.
An example of how the law could be applied in practice arose in 2014: The then permanent secretary of the ministry of environment and tourism rebutted accusations that Namibia’s ‘desert elephants’ faced extinction because Swapo was trading their meat for political gain in the Okaoko and Damara communities, asserting that Namibia’s elephant population was healthy and growing.
The statement alleged that some non-governmental organisations (NGOs) and individuals were working against the wildlife conservation activities of the government and rural communities.
Pointedly, it noted that these NGOs and individuals had no research permits pertaining to elephants in the Kunene or elsewhere.
The Constitutional Challenge
In an effort to respond to the LAC’s concerns, a series of consultations and communications took place between representatives of the LAC, the relevant ministry and the commission during 2013 and 2014.
No consensus was reached, so in 2015 the LAC, The Namibian and the Institute for Public Policy Research – who do work that would be captured by the definition of research – launched a challenge to the constitutionality of this law and its regulations.
This challenge struggled to get past judicial case management because the government repeatedly stated amendments were imminently forthcoming.
The regulations were amended in 2016 but only to remove the term “Namibian-based researcher” throughout.
The result was to insulate individual Namibian-based researchers from the registration and research permit requirements, while the amendment had no effect on the requirements for Namibian-based research institutes.
Thus, this stop-gap measure was entirely inadequate to address the concerns raised by the three groups that mounted the constitutional challenge.
In 2016, the committee that monitors the International Covenant on Civil and Political Rights expressed concern that the act subjects research projects, defined in particularly broad terms, to prior authorisation after a cumbersome and costly application procedure.
The committee recommended that the scheme should be amended to ensure that research may be carried out without state authorisation and to fully respect, protect and promote academic freedoms.
However, the constitutional challenge still struggled to get out of the starting blocks as the government continued to promise that amendments to both the act and the regulations were still forthcoming.
Draft amendments were put on the table for discussion in 2021 and considered to be a step in the right direction.
However, they were still found wanting in many respects by civil society groups involved in the court case.
It was generally agreed that some types of research, particularly those which could endanger humans or animals, might warrant regulation.
Still, no agreement was reached on the appropriate definition of research, the commission’s objectives, the requirement that all research institutes must register with the government, or the contours of minimal-risk research that could be exempted from government oversight.
The Settlement
The constitutional challenge was eventually settled on 30 October 2023.
In terms of that agreement, which was made an order of court, it was agreed that the education minister would withdraw and replace specified regulations within six months and table a bill in parliament repealing and replacing specified provisions of the act within 12 months.
It was also agreed that drafts of the proposed changes would be circulated to the parties who had challenged the law in advance of these deadlines.
Both these deadlines have now passed with no sight of the promised legal changes, suggesting the government is not treating the court order with the seriousness it warrants.
In the meantime, the act does not seem to be applied very broadly or restrictively, but its problematic parts remain in place.
Given the lack of clear criteria for approving specific research projects, it could in theory be selectively applied to throttle research by groups inside or outside Namibia that might expose uncomfortable truths or come to conclusions critical of the government.
The government made a promise to ensure that corrective amendments would move forward, but that promise has already been broken. One can only hope that this will soon be remedied.
- Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.
