State Finance Act. [100] Mr Likando declined to comment on the questions posed to him in this regard as appears from the two letters written on behalf of the applicants by the Government Attorney. These letters also merely advise that the respondents where by law prohibited from publishing any information that relates or involves the assets of the NCIS. [101] Also in the founding papers the first applicant similarly chose not to respond to any of these questions save to reiterate the prohibitions and purported violations in general terms and without precision. This vagueness then also attracted argument that the applicants should have pleaded factual matter the secrecy, sensitivity ‘informing and classification (as well as the perceived compromise to national security) on the information and publication they seek to interdict.’ [102] I agree. The applicants should have taken the court into its confidence. This they have not done. Mr Khama has even submitted on their behalf that the NCIS is best placed to make the call in regard to what should be classified and what not, which call the court should simply accept without scrutiny. He disavowed the notion that the actions of the NCIS should be subject to any judicial oversight. This stance must be rejected. The NCIS operates in the context of a democratic state founded on the rule of law which rule subjects all public officials and all those exercising public functions, whether openly or covertly, in the interest of the State, to judicial scrutiny, this would include all operatives and functionaries of the NCIS. The agency has been established to serve that state and thus remains accountable to the judiciary. In any event the courts are, in my view, well equipped to deal with security issues. In this regard they could, for instance, exercise their inherent powers to regulate a preliminary in camera procedure, if required, for purposes of establishing whether any information required in judicial proceedings should be kept secret contrary to the open justice principle in the interests of national security or whether or not such information could be placed into the public domain. When the applicants thus decided not appraise the court of the precise nature and ambit of their security concerns, they did so at their peril. The failure to plead factual matter and so to appraise the court, precisely and fully, on the exact nature and scope of their security concerns has, on its own, materially, detracted from the veracity of the applicants’ case.
State Finance Act. [100] Mr Likando declined to comment on the questions posed to him in this regard as appears from the two letters written on behalf of the applicants by the Government Attorney. These letters also merely advise that the respondents where by law prohibited from publishing any information that relates or involves the assets of the NCIS. [101] Also in the founding papers the first applicant similarly chose not to respond to any of these questions save to reiterate the prohibitions and purported violations in general terms and without precision. This vagueness then also attracted argument that the applicants should have pleaded factual matter ‘informing the secrecy, sensitivity and classification (as well as the perceived compromise to national security) on the information and publication they seek to interdict.’ [102] I agree. The applicants should have taken the court into its confidence. This they have not done. Mr Khama has even submitted on their behalf that the NCIS is best placed to make the call in regard to what should be classified and what not, which call the court should simply accept without scrutiny. He disavowed the notion that the actions of the NCIS should be subject to any judicial oversight. This stance must be rejected. The NCIS operates in the context of a democratic state founded on the rule of law which rule subjects all public officials and all those exercising public functions, whether openly or covertly, in the interest of the State, to judicial scrutiny, this would include all operatives and functionaries of the NCIS. The agency has been established to serve that state and thus remains accountable to the judiciary. In any event the courts are, in my view, well equipped to deal with security issues. In this regard they could, for instance, exercise their inherent powers to regulate a preliminary in camera procedure, if required, for purposes of establishing whether any information required in judicial proceedings should be kept secret contrary to the open justice principle in the interests of national security or whether or not such information could be placed into the public domain. When the applicants thus decided not appraise the court of the precise nature and ambit of their security concerns, they did so at their peril. The failure to plead factual matter and so to appraise the court, precisely and fully, on the exact nature and scope of their security concerns has, on its own, materially, detracted from the veracity of the applicants’ case.
Director%20General%20Central%20Intelligence%20Service%20v%20Haufiku%20(HC-MD-CIV-MOT-GEN-2018-00107)%20[2018]%20NAHCMD%20174%20(18%20June%202018).docx