Digital Surveillance in Southern Africa by Allen Munoriyarwa & Admire Mare

Author:Allen Munoriyarwa & Admire Mare
Language: eng
Format: epub
ISBN: 9783031166365
Publisher: Springer International Publishing

Grounds for Interception of Communications

Although most countries in the region have strong constitutional provisions on the right to privacy, it is evident from our analysis of various pieces of surveillance laws that there are stipulated grounds where such rights can be abrogated. For instance, in South Africa, according to RICA, senior officials from law-enforcement and intelligence agencies are allowed to apply to intercept communications and communication data. This is mostly permissible for the purposes of preventing or solving relatively serious crimes, including racketeering and gangsterism, violent crime and terrorism. The law also permits the interception of communication for broader intelligence-gathering grounds: threats to public health or safety, national security, or “compelling national economic interests of the Republic”. Unfortunately, metadata requests in terms of Section 205 of the Criminal Procedure Act can be made by a wide category of law enforcement officials, with sign-off from the most junior magistrates, for any offence. Under the ICA of 2007 in Zimbabwe, lawful interception of communication is allowed following the issuance of a warrant by a judge if there are “reasonable grounds” for interception to take place. This includes “an actual threat to national security or any compelling national economic interest” or “concerning a potential threat to public safety or national security”.6 The problem with vaguely defined terms such as national security, public safety, violent crime and terrorism can be abused to further surveillance ambitions of the ruling and security elites. In Zimbabwe, the interception of communications law gives a maximum validity period of three months, but the minister can extend the validity for a period not exceeding three months. In Zambia, the validity of the interception order is three months and can be renewed by a judge for a period at their discretion. As far as Mozambique is concerned, the Act provides that the privacy of a person’s communications “can be infringed only by the public authority, when needed for public interest as described in the law”. The Act does not define its concept of ‘public interest’. Nor does it define the similarly vague terms in Article 55 of the Act, which states that the Attorney General may only order interception of communications for the purposes of “necessities of information motivated by the need to uncover the ultimate truth in a judicial affair.

Overall, it can be argued that South Africa’s surveillance law attempts to introduce some measure of proportionality, by restricting the use of interceptions to relatively serious crimes and security threats. Despite these progressive clauses, RICA is still found wanting in the sense that the restriction applies only to the real-time interception of the content of users’ communication, whereas the state can access users’ metadata with a subpoena for even minor offences.

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