A clear case would have to be made out and it should be truly necessary before public access to court proceedings is restricted based on “national security”, a judge stated in a judgement delivered in the Windhoek High Court this week.
Deputy judge president Shafimana Ueitele made the remark in a judgement on an application by the director general of the Namibia Central Intelligence Service (NCIS), Bamba Nghipandua, to have a defamation case in which he is being sued for N$1.8 million heard in secret.
Ueitele dismissed Nghipandua’s application for the defamation claim against him to be heard in camera, that all documents filed in the case be kept secret and that the media be prohibited from reporting on court documents relating to the case.
The court should guard against two dangers, Ueitele said.
“The first is the danger of genuine national security information being unnecessarily exposed. The second is the danger that the phrase ‘national security’ becomes a convenient cloak for avoiding public accountability. Both dangers are real,” he said.
Nghipandua, in his capacity as NCIS director general, is being sued by Ministry of International Relations and Trade official Fiina Elago.
Elago is claiming she was defamed in a letter by NCIS director Jeff Kaupitwa that was addressed to the executive director of the then Ministry of International Relations and Cooperation in March 2024.
The letter was written after the NCIS undertook a security vetting process on Elago, who near the end of 2023 had applied to be appointed as deputy director of protocol and consular affairs in the ministry of international relations.
In his letter, Kaupitwa says the vetting of Elago could not be finalised because she “has a pending case with the previous employer” – a statement Elago says was “false, wrongful and defamatory”.
Elago was previously employed in the Ministry of Home Affairs, Immigration, Safety and Security.
Following Kaupitwa’s letter, the minister of home affairs issued a formal letter in which he confirmed in October 2024 that there was no known pending case or disciplinary proceedings against Elago at the ministry, Elago’s lawyer, Kadhila Amoomo, has informed the court.
Amoomo said because of Kaupitwa’s letter Elago was not appointed as deputy director of protocol and consular affairs, although she was qualified for the position and had been selected as the successful candidate before the NCIS’ vetting process.
Elago is suing the director general of the NCIS for N$1.8 million, made up of N$1.47 million in potential lost income, N$300 000 in general damages in respect of her reputation and good standing in professional circles, and N$50 000 for emotional distress and anxiety.
A lawyer representing the NCIS’ director general has notified the court that Elago’s claim is being opposed.
In a sworn statement filed at the court, Nghipandua said if his plea and counterclaim to Elago’s claim are accessible to the media and the public, it will result in “private and highly confidential information” being disclosed, which will prejudice the NCIS and the way it conducts any future security clearance checks.
He also claimed this would damage Elago’s reputation and endanger the lives of people interviewed during the security clearance process in respect of Elago.
Elago opposed Nghipandua’s application to have her case heard behind closed doors and keep court documents secret.
Ueitele found that Nghipandua’s request for a court order restricting access to the hearing of the case is not justified on the documents he has placed before the court.
“The director general has not identified with precision the information which is said to be classified,” Ueitele remarked.
“He has not explained why the truth or falsity of the statement that Elago has a ‘pending case’ cannot be determined without revealing intelligence methods or sources, nor has he placed evidence before this court showing that lives, operations or national security interests will probably be endangered by an open hearing.”
Ueitele continued: “What is before court are general assertions that security vetting is sensitive and that classified information may be disclosed. General assertions are insufficient.”
If a specific document, witness, question, answer or portion of evidence raises a genuine national security concern during the hearing of the case or the pleading stage before a trial, Nghipandua may apply for a limited protective order, Ueitele also said in his judgement.
