Michael Amushelelo Namibia: Contempt Ruling Rejects Free Speech Defense

• Namibian social activist Michael Amushelelo was found in contempt of court for breaching a settlement agreement made into a High Court order.
• Judge Nate Ndauendapo ruled that Amushelelo's constitutional right to free speech did not protect remarks he made on Facebook about Joseph Shikongo.
• The contempt stemmed from Amushelelo's violation of an October 2024 court order, which incorporated a prior defamation settlement with Shikongo.
• Amushelelo received a one-month suspended prison sentence, conditioned on issuing an apology and refraining from further disparaging material.
• The court emphasized that free speech is not absolute and cannot override binding judicial orders, particularly those arising from settlement agreements.

To uphold Amushelelo's free speech defense in the face of a binding court order would effectively make a mockery of judicial directives.

Social activist Michael Amushelelo has been found in contempt of court by the High Court in Windhoek, following remarks he made on Facebook about former Namibian Police Inspector General Joseph Shikongo. Judge Nate Ndauendapo delivered the judgment on Friday, determining that Amushelelo had wilfully and in bad faith violated a court order with his social media post from the end of March last year. The court declared Amushelelo to be in contempt for breaching the terms of a settlement agreement with Shikongo, which had been formally incorporated as a High Court order in October 2024.

As a consequence of the contempt finding, Judge Ndauendapo ordered a one-month prison sentence for Amushelelo. However, this sentence was suspended for a period of one year, contingent upon several conditions. These conditions stipulate that Amushelelo must not be found in contempt of Judge Ndauendapo's order again, that he must cease publishing or disseminating any further material deemed defamatory or disparaging concerning Shikongo, and that he must issue a formal, unequivocal, and unqualified written apology to Shikongo within seven days of the ruling.

The contempt proceedings arose from an application by Joseph Shikongo, who alleged that Amushelelo's Facebook remarks from March last year violated a standing court order. This order, issued in October 2024, was the culmination of a defamation case where Shikongo had sued Amushelelo for N$1 million. The initial defamation claim concerned previous statements Amushelelo had made regarding a fatal road collision in northern Namibia in December 2022, in which Shikongo was involved.

The October 2024 settlement agreement, which subsequently became a High Court order, included Amushelelo's formal apology to Shikongo. Crucially, it also contained a binding undertaking from Amushelelo to refrain from making or publishing any further statements similar to those that prompted Shikongo's original defamation lawsuit. Despite this, Amushelelo's Facebook post at the end of March last year alleged that Shikongo had not been held accountable for his role in the fatal collision and called for his arrest in connection with the accident that claimed three lives.

In his defense against the contempt application, Amushelelo argued that his Facebook remarks were not defamatory, constituted fair comment, and were an exercise of his constitutional right to free speech. He further contended that his statements did not contravene the earlier settlement agreement and court order. However, Judge Ndauendapo explicitly rejected this argument, noting that Amushelelo had previously committed, through the settlement agreement and subsequent court order, not to post such statements.

Judge Ndauendapo underscored that the constitutional right to freedom of speech is not absolute. He stated that to uphold Amushelelo's free speech defense in the face of a binding court order would effectively make a mockery of judicial directives. The court emphasized that all parties involved in a legal matter are bound by court orders, which must be respected without exception, warning that a failure to do so would lead to lawlessness and anarchy. Amushelelo was represented by lawyer Ntelamo Ntelamo, while Nambili Mhata acted on behalf of Shikongo.

This ruling from the Namibia High Court clarifies a critical aspect of legal enforceability, particularly concerning settlement agreements that have been elevated to court orders. The judgment firmly establishes that a constitutional free speech defense will not serve to override or negate a binding judicial directive, especially when that order stems from a voluntarily entered settlement. The court's strong language highlights the judiciary's commitment to upholding the integrity and authority of its orders.

By imposing a suspended sentence and strict conditions, the court sends a clear message about the severe consequences of breaching such agreements. The case underscores that undertakings made in settlement agreements, once formalized by the court, carry significant legal weight and cannot be disregarded under the guise of free expression. This decision reinforces the principle that judicial orders are fundamental to maintaining legal order and must be adhered to by all parties.

This ruling clarifies that in Namibia, a constitutional free speech defense will not override a binding court order, particularly one stemming from a settlement agreement. Lawyers must advise clients on the strict enforceability of such orders and the severe consequences of breach, even when public commentary is involved.

Source: Reporting based on original coverage.