Legal fraternity tears spying bill apart
Mpho Mokwape | Monday January 31, 2022 08:56
As a result, the public is reeling in shock following the announcement by Minister of Defence, Justice and Security, Kagiso Mmusi that the State seeks to formalise the collection of information through undercover means.
Mmusi tabled the Criminal Procedure and Evidence (controlled investigation) Bill on urgency, a move that sparked debates as to what the government’s intention is with a Bill meant for interception of communication supposedly for investigative purposes.
As per its reading, the Bill’s core mandate will be the interception of communication framework, which will authorise the interception of communication by investigatory authorities. It also sets out the role of service providers in controlled investigations for the gathering of criminal evidence while also providing for undercover operatives to have many fake identities in order for them to carry out their activities undetected.
These latest developments have not gone down well with the public. Many believe the proposed fake identities may end up implicating wrong people in some criminal activities and also the ruling Botswana Democratic Party (BDP) may take advantage of that in 2024 general elections.
The public is worried the tapping of people’s mobile phones without their consent, something that has been happening for a long time.
Although the Bill is yet to be debated, already prominent legal practitioners who Mmegi spoke to have teared it apart.
Local prominent human rights lawyer, Uyapo Ndadi was quick to indicate that he has never imagined that during his lifetime, a Bill like this one could come before Parliament.
“The speed at which the Executive wants it to be passed is telling as it is brought on urgency. The law basically says the population of Botswana can triple because one person can have two or more identities,” said Ndadi. “One would not be able to tell the real or fake name. A person can go to court and say ‘you charged the wrong person, I’m so and so’, and that would be the end of the case.”
He noted worriedly that a person can register to vote as many times as their number of identities. “If you have, you can vote four times. A mother can unknowingly put a fake name as the identity of the father of the child. And then when she sues for maintenance a different name appears denying paternity or even claiming alibi.”
Ndadi conceded that intercepting of calls has been happening, but now it will obviously be widespread and done with impunity. That is without shame and with no consequences. No checks and balances have been in place.
“The constitutional right to privacy has been thrown out of the window, it does not exist anymore. It would seem the executive is tired of being held accountable by the courts, now it is cutting corners. Laws like these should be challenged in court and see if they meet the constitutional standard,” he said.
Ndadi is convinced a sober court would find it unconstitutional as it lacks any justification in a constitutional democracy. He pointed out that only dictatorship regimes can be at peace with such draconian laws. He even called upon the conscience of leaders to wake up in its slumber (if at all it is sleeping) and defeat this Bill.
Asked further as to what the Bill really means, he indicated that firstly, the Minister said the bill seeks to formalise collection of information through undercover means. This he underscored presupposes that such operations have been there, but now it is made legal.
One of the fundamental principles of criminal law is that it applies only within the country.
Botswana courts preside over offences that happened in Botswana, Ndadi indicated that the proposed law says a Motswana can be prosecuted for offences that took place outside the country.
Through the Bill, Ndadi says the State does not want to be held accountable citing reports that fake warrants have been issued before. So this is a cure for the gross anomaly. This is impunity in the extreme,” he said.
Ndadi also explained that assumed identities mean the law will permit a person to have a fake name. A person can have a fake, but genuine marriage certificate. One can be married to someone without knowing.
A population of Botswana can grow on paper and not in reality while one person can vote as many times as the fake ID’s. He added that the Bill also talks about interception of communication, what are the implications for an ordinary Motswana?
“The law also empowers security forces to listen to private conversations without obtaining an order of the court for at least 14 days. Yet again, the 14 days can only be known by the authorities, so he doesn’t see them going to court for permission to tap. This is draconian, barbaric and goes against the freedom of expression as people may fear to express themselves and it is intrusive as it violates the right to privacy.”
Another attorney, Francistown-based Mishingo Jeremia said in modern times, a law that allows for interception of communication is unavoidable.
“It is an international standard. The qualification must be that this must be done only in cases where it is indispensable to a criminal investigation, or in the interest of the defence or security of the Republic. And of course it must be done under the authority of a court of law,” he said.
His view is that the legislation currently before Parliament is a disaster, for the lack of a better word. He added that it was not well thought, and misses too many important provisions and that it was capable of so much abuse.
“To begin with, the bill is dealt with on urgency. Such important laws, which are meant to take away guaranteed rights, must not be hurried. Legislators don’t know everything; they must be given time to do their research, to consult experts, constituents. It is them that should make law. Consultation is an important part of law-making,” he said.
Jeremiah also observed that the Bill introduces dangerous extra-judicial provisions. The police or the intelligence community actually don’t need a court order to intercept communication. All that is required is a letter from their superior instructing the investigating officer to go ahead, if they feel the court route will be too slow for their investigation.
And that extra-judicial warrant is valid for 14 days! There is not even a provision to go to court and justify the warrant issued, and to legitimise it through a court process. All the power is with the investigative authorities.
“There is no oversight body for the exercise of these massive powers by investigating authorities. They will supervise themselves! It’s like issues of police brutality in our country. No independent body to report to. If the police beat you up, you have to report them to the police! For a bill such as this one, in other countries, there is a whole independent organ, which acts as a mediator between investigating authorities and Telecoms networks. This is to ensure that interceptions are done only in accordance with the law and for the right purpose. This avoids concentration of power in one authority. Someone must monitor the authorities. They can’t police themselves.”
“As it is, rogue agents will be all over people's private information, as it is not protected. They keep whatever they want to keep,” he said.