Social activist Michael Amushelelo’s claim that remarks he made about suspended Namibian Police inspector general Joseph Shikongo were protected by his constitutional right to free speech has been rejected by a judge of the High Court.
Amushelelo wilfully and in bad faith breached a court order with the remarks he made in a Facebook post at the end of March last year, judge Nate Ndauendapo stated in a judgement delivered in the Windhoek High Court on Friday.
Ndauendapo declared at the end of his judgement that Amushelelo was in contempt of court for breaching the terms of a settlement agreement with Shikongo that was made an order of the High Court in October 2024.
Ndauendapo ordered that Amushelelo be imprisoned for one month, but that sentence is suspended for one year on a number of conditions.
The suspension of the period of imprisonment is on condition that Amushelelo is not found to be in contempt of Ndauendapo’s order, that he “refrains from publishing or disseminating any further defamatory or disparaging material” concerning Shikongo and that he issues “a formal, unequivocal and unqualified written apology” to Shikongo within seven days.
Ndauendapo’s order was made in a case in which Shikongo sued Amushelelo in connection with remarks which Amushelelo posted on his Facebook page at the end of March last year.
Shikongo claimed Amushelelo’s remarks violated a court order issued in October 2024.
That was after Amushelelo and Shikongo agreed to settle a defamation case in which Shikongo sued Amushelelo for N$1 million in connection with previous remarks he had made about a fatal road collision in which Shikongo was involved in northern Namibia in December 2022.
In a settlement agreement that was made an order of the High Court in October 2024, it was recorded that Amushelelo tendered an apology to Shikongo and that he provided “a formal and binding undertaking” to refrain from making or publishing any further statements similar to the ones about which Shikongo instituted a defamation claim against him.
In the remarks that Amushelelo posted on his Facebook page at the end of March last year, he alleged that Shikongo has not been held accountable for his actions in the fatal collision in which he was involved, and said it should be demanded that Shikongo be arrested in connection with the accident which claimed the lives of three people.
In response to Shikongo’s application that he be held in contempt of court, Amushelelo claimed the remarks he made on Facebook were not defamatory, were fair comment and an exercise of his right to free speech, and did not contravene the earlier settlement agreement and court order.
Ndauendapo noted in his judgement that with the earlier settlement agreement and court order Amushelelo undertook not to post the statement he went on to make on Facebook.
“The defence of constitutional right to freedom of speech is untenable as the right to freedom of speech is not absolute,” Ndauendapo said. “To uphold [Amushelelo’s] freedom of speech defence, in the face of a binding court order, is to make a mockery of court orders.”
Ndauendapo also remarked that court orders are binding on parties involved in a matter and must be respected without exception. “Failure to respect court orders will result in lawlessness and anarchy,” he said.
Amushelelo was represented by lawyer Ntelamo Ntelamo.
Nambili Mhata represented Shikongo.
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