Public space video surveillance unconstitutional - Balule
Mpho Mokwape | Monday June 19, 2023 06:00
He however, did not discount that public space video surveillance has several public interest benefits. In 2017, the BPS announced that it was working on installing Closed Circuit Television (CCTV) in Gaborone and surrounding areas for crime-free streets as well as to improve general public security.
The news was received with mixed emotions with many fearing that the capture of their images and daily activities was a clear cut infringement to their privacy. But the BPS assured the public that the video surveillance was only aimed at protecting citizens from criminal activities.
Though done in good faith as crime has been escalating in the city and surrounding areas, there are concerns that the move dubbed ‘safe city project’ is unlawful and unconstitutional as there is no law safeguarding such.
In a more detailed look at the safe city project, Balule has given his take on the project touching base on its pros and cons. The professor said that although he acknowledges that public space video surveillance has several public interests benefits it was still unlawful as the benefits are not above the rights of individuals protected under the Constitution.
Balule, who is also current Deputy Dean in the faculty of Social Sciences at the country’s largest institution of learning, says the safe city project was not authored under any law therefore, its unlawful and unconstitutional. In his report commissioned by the Media Policy and Democracy Project titled ‘Public Space Surveillance and Protection of Privacy: The Case of Botswana’, he explains that where there is a clash between the public interests and the rights of the individual an attempt must be made to reconcile them and not substitute one for the other. “The benefits of using public space video surveillance cannot justify a blanket interference with the right to privacy of individuals in public space,” he explained.
Balule pointed out that Botswana must urgently enact a law that will regulate the use of public space video surveillance and that will also provide a framework for balancing the risks and benefits associated with the use of video surveillance in public space. He emphasised that the law should also ensure that other public entities which wish to use video surveillance in public space, like the Ministry of Transport and Public Works under its Traffic Control Centre, do so lawfully.
“Since there is no legal regulatory framework for the use of video surveillance in public space in Botswana, it is recommended that there is an urgent need to pass such a law. The legal framework should be based on the principles which are drawn from both the Victorian Law Reform Commission’s report on Surveillance in Public Places and the England and Wales’ Surveillance Camera Code of Practice,” he said.
The professor explained that the principles sought to promote a human rights compliant approach to the use of video surveillance in public space and in addition that there is need to have in place adequate safeguards where data is subject to automatic processing and where there is a significant risk of unlawful access to data. The five principles as he addresses them are that the use of a surveillance camera system operated in a public space must be authorised by law and have a clearly defined purpose, and be in pursuit of a legitimate aim and be necessary to addressing a pressing need. According to the professor, this is meant to ensure that video surveillance in public space is done lawfully and used for the specific purpose it was established to address and not for any other unjustified purpose.
Further, the operators of video surveillance in public space should act responsibly and consider the reasonable expectations of the privacy of individuals. “The use of surveillance camera systems in public space where there is a high expectation of privacy should only be done to address a serious problem that cannot be addressed by less intrusive means. Public places surveillance should be proportional to its legitimate aim and purpose. In terms of this principle, excessively intrusive surveillance should only be used for important purposes,” he explained.
Lastly, the principle notes that there must be transparency in the use of surveillance cameras. People in public spaces should be made aware that they are being monitored through surveillance cameras meaning that it will reduce the potential for harm as it will allow individuals to adjust their behaviour in response to being monitored. Also, measures must be in place to protect information gathered through public space surveillance from misuse or inappropriate disclosure and the sharing of information obtained from a surveillance camera system must be controlled and consistent with the stated purpose for which the system was established.
Balule also argues that while public space surveillance has several benefits one of the main benefits being its use in investigating incidents that may involve criminal behaviour as video surveillance is used to obtain evidence of criminal activity and to enhance the ability of law enforcement agencies to investigate offences and other forms of crime that are covert, sophisticated and difficult to detect through conventional methods it also posed a risk to individuals. He explained that the surveillance posed a risk of interfering with individuals’ daily lives by violating their fundamental rights and freedoms and one of the rights at risk due to the widespread routine use of video surveillance being privacy. “The critical question that arises is whether an individual’s right to privacy is protected when she/he is in a public space,” he posed the question.
Balule pointed out that given the possibility of the use of the surveillance cameras interfering with the right to privacy, there is need for an appropriate legislative framework that balances the risks and benefits associated with their use. He explained that despite there being no law that specifically regulates the use by the BPS of surveillance cameras in public spaces to ensure that they are not misused or overused thereby undermining the fundamental rights and freedoms of the individual, BPS has ustified its use.
“It would appear the BPS is justifying the use of the cameras under section 16 (5) of the Police Act. 23 This provision places a duty on police officers to protect, prevent and detect crime, repress internal disturbances, maintain security and public tranquility, apprehend offenders, bring offenders to justice, enforce written laws and generally maintain the peace.
The use of surveillance cameras in public spaces aids police officers in executing their duties as spelt out in the above provision,” reads his take on police justification. Balule emphasised that however, the police view the project ,they (police officers) must act in accordance with the law as the manner in which they carry out their duties may conflict with the rights and freedoms of the individual.
Meanwhile the BPS has always maintained that the safe city project is meant to target criminal activity and not to invade individual's privacy.
In a previous comment the BPS public relations officer, senior superintendent Near Bagali said the cameras are intended to keep the cities secure and free from crime.
"Crime is high and through the use of surveillance cameras the public's security would be guarded at all costs." he said.
Efforts to get comment from the BPS proved futile at the time of print.