Courts Are Becoming Bully Platforms

Namibia’s judiciary has been widely praised around the world as independent of the political ruling elite. It is difficult to disagree with such an assessment.

Worryingly, however, the same Namibian courts have also too frequently and too easily been used by the rich and the ruling elite to try and muzzle robust criticism of those who control or benefit from public resources.

Judge Beatrix de Jager’s ruling and heavy penalties in favour of tenderpreneur Shapwa Kanyama is the latest of several judgements to strike a chilling blow against the fundamental freedoms of speech and expression.

Shapwa and his wife Beata Kanyama were awarded N$130 000 plus more than N$640 000 in legal costs against retired nurse Mathilde Kadhikwa, who judge De Jager concluded to have defamed the couple.

Let’s accept that De Jager’s judgement that Kadhikwa’s statements, made on a WhatsApp group, were defamatory of Kanyama.

Does the punishment of Kadhikwa having to pay about N$800 000 really fit any reckless utterances suggesting that tenderpreneurs, like Kanyama, were lining their pockets at the expense of the poor who fail to get medicine and decent health care at state hospitals?

Will Kadhikwa’s remarks damage Kanyama’s business dealings with the government’s health procurement system that have indeed enriched him over many years?

In fact, is it not true that Kanyama has at some point been reported to have benefited from questionable health state contracts?
To the contrary, De Jager and fellow judges who hand down massive penalties in freedom of expression cases fail to appreciate the need for robust freedom of speech in our governance and democracy.

The Namibian is all too familiar with the rich and powerful trying to use the judiciary to suppress scrutiny of those who benefit from public resources. We have had judges going beyond what’s needed and being far too punitive towards media civil society activists, especially some whose work we have reported on.

Often it is not so much the defamation awards by the courts that the likes of Kanyama seem to care about. They appear to sue in order to intimidate their critics.

Dragging a critic to court ties them up with massive legal costs, which activists and the media can ill afford.

The aim appears to be to ensure that no one dares criticise their dealings, despite the fact that they draw their riches from state resources. It can also be seen as being aimed at scaring off potential whistleblowers in the case of potentially questionable deals.

Surely there should be other forms of punishing malicious abuse of free speech, such as community service aimed at promoting civil but robust conversations? Destroying individuals and institutions financially is not a way to safeguard democracy, the rule of law and fundamental freedoms, which should be the core mission of the courts.

In a progressive environment, Kanyama and his ilk might win a case but get a symbolic payment like N$100 in addition to a non-financial remedy. That would discourage the misuse of courts by the state-sponsored rich and powerful.

We call on judges in Namibia’s courts to start showing a better appreciation of freedom of speech as a major tenet of democracy.

It is bad enough that our judicial system is more accessible to the rich and powerful by the mere processes required. People with no money cannot even dream of trying to enforce their rights; consumers barely have protections. Courts have little room for small money claims.

Please don’t shut down the space for free expression with killer punitive judgements that favour the elite in business and public office.

Courts should not be used as bully platforms against freedom of speech.

These kinds of judgements and punitive penalties only help to close the spaces for the robust expression of opinions.

Courts ought to permit more room for freedom of expression even if it may at times be offensive and disrespectful.

Do not continue allowing the judiciary to be used as a bully platform against crucial fundamental freedoms that benefit all Namibians.