Controversial “spy bill” stokes rare public debate on civic surveillance
Mbongeni Mguni | Friday June 24, 2022 11:48
Minister of Defence, Justice and Security, Kagiso Mmusi introduced the Criminal Procedure and Evidence (Controlled Investigations) Bill, 2022, to a special sitting of Parliament on a certificate of urgency in late January, explaining that fast-tracking the legislation was needed to adhere to the recommendations of the Financial Action Task Force (FATF).
The FATF, the world’s top supranational organisation on anti-money laundering, lifted its adverse listing of Botswana last October, three years after noting the country had significant structural and legislative deficiencies required to plug the flow of dirty money into and out of its economy.
The Bill was part of a raft of 16 pieces of legislation government wanted approved on urgency by the emergency sitting of Parliament between January and February, as part of preparations for a review of the FATF compliance in September.
However, clauses within the Bill immediately triggered alarm amongst members of the local civic society, particularly the media, the legal fraternity and other organisations monitoring government accountability and transparency.
While the Bill sought to enable law enforcement agencies to use undercover operations to intercept communications, access computer systems and use controlled devices in undertaking investigations of money laundering and associated crimes, observers said there were major oversight and transparency gaps as well as implicit threats in passing the legislation as drafted by government.
A closer reading of the clauses in the Bill revealed that it sought to allow investigators to conduct undercover work and intercept anyone’s private communications without a court warrant if applying for such a warrant delayed investigations. Information gathered from this interception would have been permissible in court, a situation prominent attorney, Kgosietsile Ngakaagae described as “allowing a violation of civil liberties to be used in court against those who have been violated”.
The proposed law would also have allowed investigators to assume multiple false identities, with the home affairs directors instructed to assist with the relevant documents. Critics said the clauses allowing the assumption of multiple false identities could be used by the ruling party to influence the outcome of elections by padding voters’ registries with agents. Thanks to the ruling party’s majority dominance of Parliament since Independence, government bills traditionally sail through the National Assembly, although some amendments to the final text have occurred in the past.
“The Bill initially proposed a blanket surveillance and eavesdropping of all forms of communication - telephones and computers by security services,” says Spencer Mogapi, chairperson of the Botswana Editors Forum, one of the leading civic groups that mounted resistance to the Bill.
“In that Bill there were no oversights. The security services would effectively do as they pleased.
“To do so they would not need to get a warrant from the court or from any authority.
“That for us as Botswana Editors Forum was unacceptable and very problematic.”
Mogapi says the Editors Forum had “a wide array of concerns” with the proposed clauses.
“The law would effectively compromise the security and with that, the safety of sources.
“And as you know journalism relies on sources.
“And it is a cardinal rule for every journalist to protect their sources, specifically their identity.
“An absence of oversight meant that security agencies would effectively do as they pleased and the law stated clearly that those who felt wronged and or violated could not seek any recourse from the courts. That was shameful. And we could not agree to it much less be party to it.
“For media freedom this was a defective law - from beginning to the end.
“Even in the times of terrorism and money laundering, the law was a big ask for us because it meant we could not even practice journalism.
“We were being asked to agree to an arrangement only known to happen in police states.
“The media was going to be a victim of this law.”
The concerns raised by the Editors Forum represented a rare public engagement of civic surveillance and liberties in the country. Concerns around how law enforcement officials conduct covert digital surveillance, whether these operations are conducted according to the law and what recourse citizens have, have been raised over the years, mainly by opposition parties and the media. Much of the concern has been episodic, erupting from time to time around specific allegations, but not rising to the level where issues of civil liberties and covert digital surveillance are debated at a national level by multi-sectoral actors.
Tachilisa Balule, Associate Professor of Law in the Department of Law, University of Botswana, notes that the Botswana Police Service, the Directorate on Corruption and Economic Crime (DCEC), and the Directorate of Intelligence and Security (DIS) are some of the key agencies whose mandates may require them to use digital surveillance.
Prior to the introduction of the Criminal Procedure and Evidence (Controlled Investigations) Bill, 2022, at least two other existing laws provided for communications interceptions by law enforcement, in each case, requiring that law enforcement initiate an ex-parte application at the courts.
The new Bill sought to circumvent the courts and in effect allow law enforcement authorities to give their officers approval for communications interceptions, without oversight structures for accountability or recourse in cases where those under surveillance have grievances.
Legally, this would have placed ordinary citizens at the mercy of wanton and arbitrary digital surveillance, as the country’s laws around privacy and related liberties are currently a grey area.
“It is disappointing that Botswana does not have in place a comprehensive legal framework regulating the issue of interception of communications data for law enforcement purposes,” says Balule.
“It has been noted that a weak regulatory environment provides fertile ground for arbitrary and unlawful communications surveillance by the State. This appears to be the case with Botswana.”
He continues: “What is even more disturbing is that any surveillance authorised by the courts under the existing laws will not even meet the requirements of the constitutionality test.
“The right to privacy in Botswana is not sufficiently and adequately protected against interference by law enforcement agents.”
According to Balule, the right to privacy under the Constitution is not absolute. The Constitution contains a stringent test which any limitation on the right must comply with and any law that purports to limit the right to privacy must comply with the standards emanating from the limitation clause. However, Botswana has not developed case-law on the limitation clause on the right to privacy in the Constitution.
The absence of case-law resonates with the general absence of broad civic debate on digital surveillance and the right to privacy, despite the episodic outcries from opposition parties and the media.
The proposed Criminal Procedure and Evidence (Controlled Investigations) Bill however galvanised resistance and outrage from a broad spectrum of civic actors and propelled the discussion of digital surveillance into the broader public sphere.
Besides the journalism fraternity, opposition came from the Law Society of Botswana, unions and civic groups such as the Botswana Centre for Public Integrity.
Journalists, for their part, received key support from regional and international allies, who also spoke out against the proposed Bill, as Mogapi recalls.
“Locally Botswana Editors Forum teamed up with Misa Botswana,” he says.
“We then engaged with South African National Editors Forum, Southern African Editors Forum and also the African Editors Forum.
“Outside of the media, we want to recognise the European Union Delegation here in Gaborone. They gave us audience. And were helpful. That for us was sufficient.”
The Editors Forum also engaged the Chief Whip of the ruling party who Mogapi says was “exceedingly helpful in his interactions”.
“The more we talked with him the more insights we got.
“On the other side, the Chief was constantly talking to the Leader of the House who is also the Vice President.
“We wrote a letter to the Head of State, to SADC Executive Secretariat, to Minister of Defence and Security.
“The reply from the President was in our view the not most favourable, but he advised us to continue our engagement with his government at other levels.”
The multi-sectoral opposition to the Bill and the engagements led by journalists had their impact on the drafters of the law. When the Bill returned to Parliament, several amendments had been made, removing the most contentious clauses and introducing oversight measures. The new clauses to the Bill established an oversight committee and prohibited undercover operations or communications interception without a warrant from a court.
Undercover operations or eavesdropping without a court warrant was now classified as an offence under the new amendments, carrying a fine of not more than P10,000 and imprisonment of 12 years or both. The oversight committee, meanwhile, would be chaired by a judge and populated by people with expertise in human rights, finance, law enforcement, ICT and other related fields.
The clauses on investigating officers assuming fake identities were largely kept intact in the new amendments, although the Bill now proposed a new clause that would impose life imprisonment for an officer who intentionally or recklessly misuses the fake identity.
The minister also pledged to tighten up protocols around the issue of false identities.
“I will be bringing amendments at committee stage to address these concerns by introducing provisions that set out the procedure for an application for an assumed identity and highlights the fact that such an application must be operation-specific,” Mmusi told legislators during the second reading of the updated Bill.
“Furthermore, such an application has a limited period for which it remains valid.”
For the Editors Forum, the final law passed by Parliament is not perfect, but does represent an accommodation, to an extent, of the concerns raised.
“We do not celebrate the current law, but we can live with it,” Mogapi says.
“The current law is not fool proof, but then no law is.
“There is always a possibility of match-fixing, but for any security agency to listen to my phone they would have to apply to a committee headed by a person of a judge.
“That was for a big victory.
“In fact short of repealing the law, that was our principal demand on Botswana government.”
The debate on civil liberties and communications interception continues in the aftermath of the law’s passing, with more Batswana aware of the legislation, oversight and what they can expect in terms of legal recourse.
Oarabile Mudongo, researcher and author of Londa Digital Rights and Inclusion Report at Paradigm Initiative, says even with the watering down of the Act, government must commit to integrating bottom-up and top-down approaches in governance and policymaking as part of the country’s long-standing democracy.
“While the government may have a legitimate reason to justify surveillance on the basis of national security or public order, they need to be mindful of the Office of UN High Commissioner for Human Rights’ warning that such restrictions may "unjustifiably or arbitrarily" limit citizens' rights to freedom of expression and association,” he says.
“Perhaps in our pursuit of transparency, I argue that lawful surveillance requires the government to "demonstrate the risk that specific expression poses to a definite interest in national security or public order" and that a "robust, independent oversight system" that authorises relevant surveillance measures and provides remedies in cases of abuse of power where necessary (be in place).
He adds: “We should be concerned about the impartiality, ethical consistency, and detrimental effects of modern surveillance technologies.
“Our government is obligated to provide clearer answers and greater transparency regarding their use of these increasingly intrusive technologies.”
The Paradigm Initiative’s recently released Londa report for 2021, featuring the environment, violations, and the state of digital rights in 22 Africa states, noted Botswana’s paradox in attempting to introduce the Criminal Procedure and Evidence (Controlled Investigations) Bill, while having passed the Data Protection Act which came into effect last year.
The latter Act, originally passed in 2018, regulates the protection of personal data to ensure that the privacy of individuals in relation to their personal data is maintained. However, the Act has several key limitations which include where data is required for matters of national security, investigations or proof of offence and for monitoring necessary for national economic and budgetary needs.
The apparent paradox between introducing data protections for citizens in one year and then seeking to apparently undermine them the next year, has scholars such as Mudongo concerned about the direction government intends to take in digital surveillance.
As the country researcher for the Londa report, Mudongo says the status of the country’s digital rights and inclusion is worrying, and may deteriorate further given the country’s current legislative trends.
“Government should be transparent about its surveillance capabilities and the tools being used in monitoring citizens, to advance public confidence.
“This entails expanding on existing reform efforts and best practices at a country level.
“Lawmakers and civil society groups advocating for human rights should hold open consultative sessions to address illegal state surveillance and provide proposals on surveillance technology standards and policies that align to universal human rights norms and standards,” he says.
According to Mudongo, media companies should prioritise digital safety training for media practitioners by implementing programmes and policies that contribute towards increasing online safety and security in publishing information. Academic institutions also have a role to play in leading evidence-based research on digital rights, particularly internet freedom, and in establishing curricula aimed at increasing public knowledge of various digital rights and related challenges.
The rare multi-sectoral pushback against the proposed Criminal Procedure and Evidence (Controlled Investigations) has provided an opportunity for greater engagement of official digital surveillance by the public and laid the ground for more effective debate on civil liberties and privacy.
*Mbongeni Mguni is a journalist researching digital surveillance with support from the Media Policy & Democracy Project (MPDP), run by the University of Johannesburg, Department of Communication and Media.