Academic calls for law on communications interception

University of Botswana academic, Professor Tachilisa Balule
University of Botswana academic, Professor Tachilisa Balule

University of Botswana academic, Professor Tachilisa Balule says Botswana must pay heed to the call by the UN General Assembly to enact a comprehensive law on communications interception that is in compliance with its international human rights obligations.

This he states in a research paper released in November 2021 titled Surveillance of Digital Communications in Botswana: An Assessment of the Regulatory Legal Framework.

The report was commissioned by the Media Policy and Democracy Project (MPDP). Supported by a grant from Luminate, The MPDP is a joint project of the University of Johannesburg’s Department of Communication and Media and the University of South Africa’s Department of Communication Science, November 2021.

The research paper critically assesses the legal framework regulating the surveillance of digital communications by law enforcement agencies in Botswana. The aim is to determine whether the legal framework meets the standards required by international human rights law for the protection of the right to privacy.

“The paper focuses on surveillance measures that enable an actor to gain surreptitious access to digital communications, browsing data, location history and online and offline activities of individuals. The research paper is divided into two key parts. Part one provides an overview of the protection of the right to privacy,” reads an extract from the paper.

“It examines the relevant constitutional provisions and international human rights treaties on protection of the right to privacy in Botswana. In part two, the paper looks at the legislative framework that permits surveillance of individuals’ digital communications in Botswana. And it critically assesses the legal framework to determine whether it meets the standards required by the Constitution and international human rights law for the protection of the right to privacy.”

Balule states that Botswana does not have a general statute, like some countries such as South Africa, which regulate interception of individuals’ communications by law enforcement agencies in the performance of their respective mandates. However, there are currently two provisions in two different statutes that permit specified judicial officers to grant communications interception orders for law enforcement purposes. One provision is found in the Counter-Terrorism Act. This Act provides for, amongst others, measures to prevent and combat terrorism, including financing of terrorism.

“The above provision permits a Magistrate Court or High Court to issue an order to intercept communications for purposes of obtaining evidence of the commission of an offence under the Act. The offences for which an interception order can be issued under the provision include: an act of terrorism; offences associated with or connected to acts of terrorism and financing terrorism. An application for an interception order must be made by an investigating officer who can be a member of the Botswana Police Service, Botswana Defence Force or DIS (Directorate on Intelligence and Security). The Act excludes members of the DCEC (Directorate on Corruption and Economic Crime). The provision will apply to cases of targeted surveillance where a person is being investigated for commission of an offence under the Act,” he wrote.

The Intelligence and Security Services Act, 2007 (ISSA) also has a provision under which a communications interception order may be obtained.

The sections in the Counter-Terrorism Act and ISSA are the only ones that permit courts of law in Botswana to issue communications interception orders for law enforcement purposes. Any interception not based on the two provisions will thus not have any basis in law and therefore unconstitutional.

Balule argues that the critical question is whether the two provisions that permit interception of communications meet the threshold required by section 9 (2) of the Constitution.

“A determination of this question requires that the provisions be assessed against the constitutionality test. Due to the unavailability of local case-law on the subject, the discussion will borrow from international human rights law jurisprudence. This approach is in line with the principle that has been laid down by the courts of law in the country that, when interpreting the provisions of the Constitution, a broad, generous and purposive approach should be adopted. This will entail, amongst others, that when interpreting a provision in the Constitution, it is important to investigate how similar issues have been resolved in other jurisdictions. It must be noted that the absence of case-law on the application of the two provisions does not mean the provisions are not used or are rarely used. There is so much secrecy in the application of the provisions such that those who are targeted never get to know and are thus deprived the opportunity to seek redress in the courts,” he wrote.

In his conclusion, Balule found that the right to privacy in Botswana is guaranteed under the Constitution in a way that is consistent with the guarantee of the right under international human rights law.

“The right is not absolute and the Constitution contains a stringent test which any limitation on the right must comply with. Any law that purports to limit the right to privacy must comply with the standards emanating from the limitation clause. International human rights law has developed substantial jurisprudence elaborating on the standards on limitations on the right to privacy. Botswana has not developed case-law on the limitation clause on the right to privacy in the Constitution. The State of Botswana is however under an obligation to enact laws that are in compliance with its obligations under international treaties. Courts of law in the country are also under an obligation to interpret domestic laws in a manner which is consistent with the international obligations Botswana has undertaken,” he stated.

Balule concludes that it is disappointing that the State of Botswana does not have in place a comprehensive legal framework regulating the issue of interception of communications data for law enforcement purposes.

“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. This paper demonstrates that the existing legal framework is not adequate to guard against unlawful and arbitrary surveillance of communications for law enforcement purposes. 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. Botswana must pay heed to the call by the UN General Assembly to enact a comprehensive law on communications interception that is in compliance with its international human rights obligations,” he stated.

The paper comes at a time when government is seeking to make some changes to some of the country’s laws. Amongst the dozen bills before the emergency Parliament meeting is one controversial Criminal Procedure and Evidence (Controlled Investigations) Bill, 2022.

The object of the Bill presented by Minister for Defence, Justice and Security, Kagiso Mmusi is to enact the Criminal Procedure and Evidence (Controlled Investigations) Bill to make provision for controlled investigations and an undercover operations framework including the handling of information by investigatory authorities.

Part 3 of the Bill provides for an interception of communications of communications framework which authorises the interception of communications by investigatory authorities and sets out the role of service providers in controlled investigations for the gathering of criminal evidence.

Where a head of an investigatory authority believes on reasonable grounds that the delay in obtaining an interception warrant would defeat the object of the investigations, he or she may, in writing, authorise an investigating officer to intercept communications to detect, investigate or uncover the commission of an offence, or to prevent commission of an offence, states the Bill.

Furthermore the Bill outlines that the applicant shall make an ex parte application to the court for an interception warrant for purposes of gathering evidence in a controlled investigation.

An application under subsection shall contain; the person whose communication is intercepted; the basis for believing that communication relating to the ground on which the application is made will be obtained through the interception; the service provider to whom the direction to intercept the communication shall be addressed, where applicable; the nature and location of the place from which the communication is to be intercepted; full particulars of all the facts and circumstances alleged by the applicant in support of his or her application; whether other investigative procedures have been applied and have failed to produce the required evidence; Whether other investigative procedures involve undue risk to the safety of members of the public or to those wishing to obtain the required evidence; and the period for which the authorisation is required to be issued.

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