In a landmark decision, the South African Constitutional Court ruled in February 2021 that certain sections of the country’s primary communication surveillance law, the Regulation of Interception of Communication and Provision of Communication Related Information Act (Rica), were unconstitutional. This decision was hailed as a significant victory for the right to privacy. However, as the February 2024 deadline for legislative amendments approaches, concerns persist about whether citizens’ privacy will be adequately protected in the face of evolving security challenges.
Rica’s Intent and Its Shortcomings
Rica was designed with noble intentions: to safeguard privacy, combat crime, and promote national security. It mandated the registration of all cellphone SIM cards and restricted the interception of communications without consent, except under specific circumstances. However, its implementation revealed critical flaws that were exploited by rogue elements within intelligence agencies. One notable case involved the abuse of Rica to spy on the managing partner of the amaBhungane Centre for Investigative Journalism, Sam Sole, in an attempt to expose his confidential sources.
Constitutional Court’s Findings
The Constitutional Court identified five key reasons for declaring Rica unconstitutional:
- Lack of notification to individuals under surveillance.
- Insufficient independence in the appointment and renewal of the Rica judge.
- The one-sided nature of the judge’s decision-making process.
- Inadequate provisions for secure data management.
- Failure to acknowledge the professional duty of lawyers and journalists to protect their sources and communications.
Proposed Amendments and Concerns
To address these issues, the Justice Ministry has introduced an amendment bill. However, concerns linger regarding the effectiveness of these proposed changes in safeguarding citizens’ privacy.
Post-Surveillance Notification
The bill echoes the court’s first interim measure, which requires state agencies to notify surveillance subjects within 90 days of an interception ending. However, it introduces a clause allowing judges to withhold notification if it could potentially harm national security. Critics argue that this provision is too broad, as it merely requires a possibility of negative impact, not a demonstrated threat.
Independence of the Rica Judge
While the bill mandates the consultation of the Chief Justice in the appointment of the Rica judge, it remains to be seen if this arrangement will ensure sufficient independence. Additionally, the bill introduces a review judge, but questions arise regarding the feasibility of handling a significant caseload with only one judge. Consideration should be given to forming a panel of judges for these critical decisions.
Hearing Both Sides
The introduction of a review judge may not fully address the problem of one-sided decision-making. Advocates suggest including a public advocate with security clearance to represent the interests of surveillance subjects, allowing for a more balanced assessment of the evidence.
Confidentiality for Lawyers and Journalists
The bill lacks a crucial safeguard from the Constitutional Court’s interim measures, which required warrants for journalists and lawyers only when necessary. The omission leaves room for potential misuse.
Surveillance Data Management
The Court called for more comprehensive regulations on the handling, storage, and destruction of surveillance data. Unfortunately, the amendment bill lacks the necessary detail in this regard.
Metadata Surveillance
One critical issue left unaddressed in the amendment bill relates to the surveillance of metadata, a topic of increasing concern due to its potential for abuse. Expanding Rica to cover all aspects of metadata surveillance, while maintaining a streamlined process, could help mitigate these concerns.
A Missed Opportunity
The Justice Ministry had ample time for a thorough review of Rica and the entire surveillance framework. The failure to comprehensively address concerns about state surveillance’s lack of accountability highlights the need for more robust leadership and oversight in the legislative process.
In conclusion, the proposed amendments to Rica represent a step toward addressing critical privacy concerns. However, questions remain about their effectiveness in protecting citizens’ rights while balancing national security imperatives. As the February 2024 deadline approaches, South Africa faces a critical juncture in finding the right equilibrium between privacy and security in its surveillance laws.
