Following the recent meeting between the Namibian Broadcasting Corporation (NBC) Director General Stanley Similo and the Inspector General of the Namibian Police Force (NAMPOL) Lt. Gen. Sebastian Ndeitunga on areas of cooperation between the two public entities, much has been conveyed in the public discourse about the legality or rationality of the joint NBC-NAMPOL initiative regarding television license (TVL) enforcement. For some, NAMPOL has other priorities to attend to rather than chasing after and harassing TVL defaulters, while others questioned the lawfulness of NAMPOL’s involvement in the TVL compliance drive.
The Namibian Broadcasting Act 1991 (Act No. 9 of 1991) (“NBA”) defines a television set as a “device which is, alone or in combination with any other device, capable of receiving by means of radio or cables or wires… transmissions broadcast in a broadcasting service and reproducing them in the form of images or other visible signals, with or without accompanying sounds”. This Act also requires that any person in possession of a television set must have a valid television license in respect of each television set in their possession. Section 18 of the NBA empowers the NBC to appoint inspectors to carry out inspections on any premises or establishments. It further provides that the NBC may call on NAMPOL to assist with inspections of premises to check whether there are any television sets on such premises. Especially when access to such premises is being restricted or hindered. Section 18 (2) (b) The Corporation may from time to time authorise any member of the Namibian Police Force established under section 2 of the Police Act, 1990 (Act 19 of 1990), to assist the Corporation in the exercise of any power or the carrying out of any function under this section.
The above provision in line with Section 13 (b) of the Police Act 1990 (Act No. 19 of 1991), which entrusts NAMPOL with the maintenance of law and order. The assistance to be given to the NBC in this regard falls within the overall function of NAMPOL in the enforcement of all laws in Namibia.
Of further significance, is Section 28 of the same Act which makes it an offence to be in possession of a television set without a valid television license, providing sanctions for defaulters; which is not exceeding a fine of N$ 2000.00 on conviction or a maximum prison term of 6 months in default of the fine. It is common cause that NAMPOL and the Office of the Prosecutor General are indispensable in the public prosecution process, hence they are vital when initiating prosecution.
Based on the foregoing, the lawmakers prescribed a dual relationship between the NBC and NAMPOL; firstly in relation to TVL inspections and further with regards to the initiation of the prosecution of defaulters. It therefore follows that the relationship between the two entities was created by statute, what remained for the entities was to find modalities to give effect to the aspirations of the Legislature.
Issue that would enjoy greater focus in this presentation is whether the envisaged inspections are consistent with the provisions of the Namibian Constitution, in particular Article 13 which protects the right to privacy. No further elucidation is required for the fact that any law, act or conduct held to be in contravention of the Namibian Constitution, by a competent court shall be invalid and of no legal force and effect. Article 13 permits the interference with the privacy of person’s homes, correspondence or communications; only if such interference is “in accordance with law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”. The constitutional test here is twofold; the interference must be supported by law and must meet any of the considerations mentioned above. (My emphasis) If one has regard to Section 18 of the NBA, the envisaged inspections would entail entering premises which could be individual homes and establishments to inspect television sets found there and record the relevant details. It therefore appears that such an act would amount to the interference with the privacy of persons. However, as interference is supported by law (NBA) as required by Article 13 (1). The test does not end here, the interference must further be in the interest of national security or the economic well-being of the country or for the prevention of disorder or crime, etc. It would not be hard to show that the interference in the instant matter is necessary for the prevention of disorder or crime. Section 28 of NBA criminalizes the possession of a television set without a valid TVL and the inspections authorized by Section 18 of the NBA are aimed at enhancing compliance with the law and discourage the occurrence of the crime envisaged in Section 28. It must be stressed that crime in this context applies to all crimes whether originating from statutes or common law crimes. It can therefore be submitted that the inspections contemplated in Section 18 meet the constitutional requirement prescribed in Article 13 (1) of the Namibian Constitution.
Further, Article 13 (2) requires that all searches of persons and homes be authorized by a competent judicial officer or where there might be delay in obtaining such search warrants, the search may lawfully proceed if further delay may prejudice “the objects of the search or the public interest and such procedures as are prescribed by Act of Parliament to preclude abuse are properly satisfied”. Section 18 of NBA prescribes with certainty the process to be followed during inspections and such inspections are in the public interest as the expected consequence is greater observance of and compliance with the law of the land.
Alternatively, TVL revenue is a significant source of revenue for the NBC. In the event that this source of revenue is no longer available or is not optimally utilised, the NBC would consequentially have to get greater allocation from the national budget. It requires little, if any, argument that allocations in the national budget and the spending trends thereof have direct impact on the “economic well-being of the country”. To this end, it would be safe to conclude that maintaining TVL revenue and optimally utilising this source of revenue for the NBC has an impact (maybe miniscule or indirect) on the economic well-being of the country, as that could potentially free up resources to cater for other national priorities. It is however conceded that the economic well-being of the economy would likely be impacted by events and activities much greater than happenings at a single one entity like the NBC, but the cumulative effect of each entity requiring additional financial support should never be underestimated.
With legality question out of the way, remain the humane considerations in effecting the statutory inspections. The NBA provides for a formal, orderly and dignified manner for inspections and the NBC’s intention is to comply with the letter and spirit of the NBA, without deviation and ensuring that there would be no room for abuse and unfettered intrusion into and limitation of the right to privacy.
Steven Ndorokaze is the Head of Legal and Company Secretary at the Namibian Broadcasting Corporation