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Balancing the Right to Privacy and the Public Interest: Surveillance by the State of Private Communications for Law Enforcement in Botswana

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Abstract

Developments in technology have increased opportunities for state surveillance and interception of individual’s communications. Surveillance by the state of private communications enables it to collect and store personal data and private information which can be aggregated to provide intimate and detailed profiles of the targeted individuals, resulting in an invasion of the concerned individuals’ right to privacy. The right to privacy is a fundamental human right guaranteed in all the major human rights treaties. The right to privacy is, however, not an absolute right. International law requires that where the right to privacy is invaded, such must be necessary, legitimate, and proportionate. There is currently an outcry worldwide that national laws regulating states’ surveillance of private communications are inadequate or non-existent, resulting in unlawful and arbitrary interference with the right to privacy. This paper examines the legal framework regulating surveillance by the state of private communications for law enforcement purposes in Botswana with a view determining whether it provides adequate protection to the right to privacy of the individual.
Statute Law Review, 2015, Vol. 00, No. 00, 1–14
doi:10.1093/slr/hmv023
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•  1
Balancing the Right to Privacy and the
Public Interest: Surveillance by the State
of Private Communications for Law
Enforcement in Botswana
Badala TachilisaBalule* and BojosiOtlhogile
ABSTRACT
Developments in technology have increased opportunities for state surveillance and
interception of individual’s communications. Surveillance by the state of private com-
munications enables it to collect and store personal data and private information which
can be aggregated to provide intimate and detailed proles of the targeted individuals,
resulting in an invasion of the concerned individuals’ right to privacy. e right to privacy
is a fundamental human right guaranteed in all the major human rights treaties. e right
to privacy is, however, not an absolute right. International law requires that where the
right to privacy is invaded, such must be necessary, legitimate, and proportionate. ere
is currently an outcry worldwide that national laws regulating states’ surveillance of pri-
vate communications are inadequate or non-existent, resulting in unlawful and arbitrary
interference with the right to privacy. is paper examines the legal framework regulat-
ing surveillance by the state of private communications for law enforcement purposes in
Botswana with a view determining whether it provides adequate protection to the right
to privacy of the individual.
1. INTRODUCTION
e right of every person to be protected against arbitrary or unlawful interference with
their privacy is a fundamental human right guaranteed under international law.
1
e
right to privacy, arguably, has two facets: the substantive and informational autonomy.
2
Substantive privacy is the presumption that a person should have a private sphere
with or without interaction with others, free from state intervention and from unsolic-
ited intervention by other uninvited individuals to make choices about personal life.
3
*
Senior Lecturer-in-Law, Department of Law, University of Botswana, Private Bag 00705, Gaborone, Botswana.
Associate Professor of Law, Department of Law, University of Botswana, Private Bag 00705, Gaborone, Botswana.
1
See Art. 12 of the Universal Declaration of Human Rights, 17 of the International Covenant on Civil and Political Rights, 8
(1) of the European Convention on Human Rights, and 11 of the American Convention on Human Rights.
2
H Fenwick and G Phillipson Media Freedom Under the Human Rights Act (Oxford University Press Oxford 2006)at p.662.
3
See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, A/HRC/23/40 (17 April 2013)at para. 22.
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Informational autonomy denotes an individual’s interest in controlling the ow of per-
sonal information about them and how it is used.
4
is article focuses on informational autonomy as it looks at surveillance of pri-
vate communications by the state. Informational autonomy demands that individuals
should be assured that their private communications shall remain private and secure.
is will enable them to exchange information and ideas in a space that is beyond the
reach of the state and other members of the society, and in the process, promoting other
fundamental rights such as the freedoms of expression and association. Informational
autonomy also requires that private communications should only be received by the
intended recipients without interference, and that the communications they receive
should equally be free from intrusion.
Although privacy is a fundamental right, it is not absolute. Limitations on the right
may be permissible if they are for the protection of the public interest, such as national
security or the detection and prevention of crime. International law, however, requires
that any limitations on the right to privacy must be necessary, legitimate, and propor-
tionate.
5
ere is a general concern worldwide that national laws regulating states
surveillance of private communications are inadequate or non-existent, resulting in
unlawful and arbitrary interference with individuals’ right to privacy.
6
e situation is
further compounded by developments in technology which have increased opportuni-
ties for state surveillance and interception of individual’s communications. States have
access to various techniques and technologies to conduct communications surveillance
of targeted individuals. Such surveillance enables the state to collect and store personal
data and private information which can be aggregated to provide intimate and detailed
proles of the targeted individuals.
In Botswana, there are fears that the Directorate of Intelligence and Security (DIS)
is being used by the State to monitor activities of critics of the government, journal-
ists, and human rights activists.
7
ere are also reports that the DIS has engaged Verint
Systems, an Israeli company, to supply it with soware that has capability to spy on
e-mails, Facebook, and Twier.
8
e DIS’s main function is to investigate, gather, co-
ordinate, evaluate, correlate, interpret, disseminate, and store information for purposes
of detecting and identifying any threat or potential threat to national security.
9
In the
performance of its mandate, the DIS may resort to surveillance and monitoring of cer-
tain individuals’ communications. In addition, the agency may also have to seek access
to communications data held by third-party service providers and internet companies
on communications on certain individuals.
e other law enforcement agencies include the Police Service and the Directorate
on Corruption and Economic Crime (DCEC). e duties and functions of the Police
4
H Fenwick and G Phillipson, above n 2 at p.663.
5
See Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, above n 3 at para. 29 and Art. 8 (2) of the European Convention on Human Rights.
6
See International Principles on the Application of Human Rights to Communications Surveillance, adopted on 10 July 2013,
available at hps://en.necessaryandproportionate.org/text (accessed 5 August 2013).
7
See  Gwatiwa ‘Intelligence Operations as Terrorism: Emerging State Terrorism in Botswana’ [2011] Journal of African
Studies and Development 3, 176 at 181 and African Media Barometer – Botswana 2009 (Media Institute of Southern Africa
Windhoek, Namibia 2010)at p.12.
8
‘How the DIS Spies on You’, Botswana Guardian, Friday, 24 March 2014.
9
Intelligence and Security Service Act, 2007, Act No. 16 of 2007I, section5.
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Service include, among others, the prevention and detection of crime and maintenance
of security and public tranquillity.
10
e DCEC’s mandate on the other hand is to inves-
tigate allegations of corruption in public bodies and alleged or suspected contravention
of the scal and revenue laws of the country.
11
Both the Police Service and DCEC, like
the DIS, may have to resort to surveillance of private communications in the perfor-
mance of their respective mandates. e DCEC is reportedly in the process of acquir-
ing a high-tech system that will help it to eavesdrop on mobile phone and electronic
mail conversations of suspects to enhance its investigations.
12
e critical question that arises is whether the laws establishing the above law
enforcement agencies have adequate provisions to ensure that where there is need to
resort to surveillance and monitoring of individuals’ communications, the measures
taken will conform to the principle of proportionality and will be the least intrusive to
the individual’s right to privacy. is article examines the laws establishing the three law
enforcement agencies with a view of determining whether where they have to resort to
surveillance of private communications in the performance of their mandates, would
such be in compliance with international human rights norms and standards on the
protection of the right to privacy. e recent revelations by whistle-blower Edward
Snowden of mass surveillance of millions of innocent people by the US National
Security Agency has demonstrated the need for states to evaluate their legal frame-
works on communications surveillance in order to ensure that the right to privacy is
adequately protected.
2. THE CONSTITUTIONAL FRAMEWORK FOR THE RIGHT TO
PRIVACY IN BOTSWANA
e right to privacy in Botswana is guaranteed under section 9 (1) of the Constitution.
It providesthat:
Except with his or her own consent, no person shall be subjected to the search
of his or her person or his or her property or the entry by others on his or her
premises.
e constitutional provision appears to protect a limited right to privacy as it refers
only to protection against the search of his or her person, property, or entry by oth-
ers on his or her premises. e wording of the guarantee of the right to privacy under
the Constitution of Botswana diers in essential respects to the guarantee of the right
under international human rights instruments such as the International Covenant on
Civil and Political Rights (ICCPR), European Convention on Human Rights (ECHR),
and American Convention on Human Rights (ACR). e question that then arises is
whether the Constitution of Botswana guarantees the right to privacy comprehen-
sively, as guaranteed under international human rights treaties, or only protects the
right in the specic instances outlined in the provision. is question was raised before
the High Court of Botswana in the case of Ketlhaotswe and others v.Debswana Diamond
10
See section 6 (1), Police Act [Cap.21:01].
11
Section 6, Corruption and Economic Crime Act No. 13 of 1994.
12
‘DCEC to Purchase Hi-Tech Spying Machine, Sunday Standard, Sunday, 23 March 2014.
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Company (Pty) Ltd.
13
e court in this case held that ‘a broad, generous and purposive
approach’ is required in the interpretation of the provision of the Constitution.
14
It fur-
ther observed that a constitution is a living document whose interpretation should not
be ‘fossilized in the rocks of time’ and held that section 9 (1) of the Constitution guar-
antees the right to privacy of the person, his or her home, and other property.
15
It is contended that the High Court was right in adopting a generous construction
of the provision guaranteeing the right of privacy in the Constitution. A purposive
construction reects the deeper inspiration and aspiration of the basic concepts of the
fundamental rights and freedoms of the individual. e approach is in consonance with
the view expressed by the Botswana Court of Appeal in the case of Aorney General of
Botswana v.Dow, where the court held that a generous construction means that when
interpreting the provisions of the Constitution, courts should not while down any
rights and freedoms unless by very clear and unambiguous words, such interpretation
is compelling.
16
e Court of Appeal further held that the primary duty of judges is to
make the constitution grow in order to meet the just demands and aspirations of an
ever developing society which is part of the wider and larger human society governed
by some acceptable concepts of human dignity.
17
It is submied that these acceptable
concepts of human dignity are contained in international human rights treaties, con-
ventions, and declarations.
e High Court of Botswana in Ketlhaotswe and others v. Debswana Diamond
Company (Pty) Ltd held that section 9 (1) of the Constitution guarantees privacy of the
person. e court did not elaborate on what privacy of the person entails. Guidance on
what privacy of the person entails must therefore be sought from international law and
comparative foreign law. e Interpretation Act 1984 provides that as an aid to the con-
struction of an enactment, a court may have regard to any relevant international treaty,
agreement, or convention.
18
e status of international treaties in the domestic law of
Botswana is governed by the dualistic theory.
19
In terms of this theory, international
treaties have no automatic operation in the domestic law unless incorporated by an act
of the legislature.
20
Although Botswana follows the dualist theory regarding the status
of international law in the domestic law, the Court of Appeal has held that courts must
interpret domestic laws in a way as compatible with the states responsibility not to be
in breach of international law as laid down by law creating treaties, conventions, agree-
ments, and protocols within the United Nations (UN) and Organisation of African
Unity (OAU) [now African Union (AU)].
21
Courts in the country therefore occasion-
ally use international law, as contained in international treaties, including those that
have not been incorporated into the domestic law, to resolve disputes that come before
13
CVHLB-001160-07 (unreported, delivered on 27 September 2012).
14
Ibid at para. 34.
15
Ibid at para. 35.
16
[1992] BLR 119 (CA) at 165, per JA Aguda.
17
Ibid at 166.
18
Section 24, Interpretation Act, 1984 [ch. 01:04].
19
See O Tshosa ‘Giving Eect to Treaties in the Domestic Law of Botswana: Modern Judicial Practice’ [1997] Lesotho Law
Journal 10, 205.
20
Dow v.Aorney General of Botswana, above n 16 at 154.
21
Ibid.
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them. e Court of Appeal in the Dow case also held that, in interpreting the provisions
of a constitution, ‘respect must be paid to the language which has been used and to
the traditions and the usages which have given meaning to that language.
22
e court
further held that the Bill of Rights in the Constitution of Botswana was greatly inu-
enced by the ECHR, which the UK had ratied and applied to its dependent territories.
Although not binding on the State of Botswana, the jurisprudence developed under the
ECHR on protection of fundamental rights and freedoms of the individual, including
the right to privacy, is highly persuasive in the interpretation of the rights and freedoms
guaranteed in the Bill of Rights in the light of Botswanas constitutions antecedents.
23
Since the High Court of Botswana has held that section 9 (1) of the Constitution
guarantees privacy of the person, it is contended that this phrase must be interpreted
as equivalent to ‘private life’ used in the ECHR. e European Court of Human Rights
(ECtHR) has opined that private life is abroad term not susceptible to exhaustive de-
nition and that it covers, among others, mail, telephone, and e-mail communications.
24
In addition, the ECtHR has also held that the systematic collection and storing of data
by security services on particular individuals constitute an interference with those per-
sons’ private lives.
25
It is thus submied that informational autonomy, which is the sub-
ject of surveillance by the state of private communications, is an aspect of the notion
of private life and is guaranteed under section 9 (1) of the Constitution of Botswana.
e Constitution permits interference with a persons right to privacy in section 9
(2). e limitation clause provides:
Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision –
(a) that is reasonably required in the interests of defence, public safety, pub-
lic order, public morality, public health, town and country planning, the
development and utilization of mineral resources, for the purposes of any
census or in order to secure the development or utilization of any prop-
erty for a purpose benecial to the community;
(b) that is reasonably required for the purpose of protecting the rights or
freedoms of other persons;
(c) that authorizes an ocer or agent of the Government of Botswana, a local gov-
ernment authority or a body corporate established by law for a public purpose
to enter on the premises of any person in order to inspect those premises or
anything thereon for the purpose of tax, rate or duty or in order to carry out
work connected with any property that is lawfully on the premises that belongs
to that Government, authority or body corporate, as the case may be;or
22
Ibid at 152.
23
For example, in Petrus and another v.State [1985] LRC (Const.) 699, in determining the constitutionality of a sentence to
four strokes to the Appellants, which was to be administered in instalments, the court declared such punishment as inhuman
and degrading. e court made reference to Art. 3 of the ECHR and some decisions of the European Court of Human Rights
in arriving at its decision.
24
See Liberty and others v. United Kingdom, Application no.58243/00, at para. 56 (judgment of 1 July 2008)and Kennedy
v.United Kingdom, Application no.26839/05, at para. 118 (judgment of 18 May 2010).
25
Shimovolos v.Russia, Application no.30194/09, at para. 65 (judgment of 21 June 2011).
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(d) that authorizes, for the purpose of enforcing the judgment or order of a
court in any civil proceedings, the search of any person or property by
order of a court or entry upon any premises by suchorder,
and except so far as that provision or, as the case may be, anything done under
the authority thereof is shown not to be reasonably justiable in a democratic
society.
An examination of the above limitation clause on the right to privacy reveals that it sets
forth a three-part test that any interference with the right must comply with. e test
requires that for any interference with a persons right to privacy to be lawful, it mustbe:
(i) Contained in or done under the authority of any law,
(ii) Legitimate in the sense that it must be for purposes of protecting those
interests listed in the provision, and
(iii) Reasonably justiable in a democratic society.
Courts in Botswana are still to elaborate on the requirements of this limitation test. It
is, however, argued that guidance on the requirements of the test may be sought from
international comparative law, especially the jurisprudence developed on Article 8 of
the ECHR. e ECtHR has had opportunity on several occasions to elaborate on the
limitation clause in the Convention on which the limitation clause in the Constitution
of Botswana is premised. e rst limb of the constitutionality test which requires
that the limitation must be ‘contained in or done under the authority of law, although
worded dierently, is similar to the phrase ‘in accordance with the law’ used in the
ECHR.
26
e ECtHR has held that this test requires: rst, that the impugned measure
must have some basis in the domestic law; secondly, that the domestic law must be
compatible with the rule of law and accessible to the person concerned; and thirdly,
that the person must be able to foresee the consequences of the domestic law for him/
her.
27
On the issue of foreseeability, the ECtHR has emphasized that this does not mean
that an individual should be able to foresee when authorities are likely to intercept his/
her communications so that he/she can adapt accordingly. Rather, that foreseeability
requires that the law must be suciently clear in its terms to give citizens an adequate
indication as to the circumstances in which the conditions on which public authorities
are empowered to resort to any such measures.
28
e second limb of the constitutionality test is clear in that for a limitation to be
considered legitimate, it must be shown that it is for the protection of one or more of
those aims listed in section 9 (2) (a)–(d).
e third limb of the constitutionality test demands that the interference with the
right of privacy must be reasonably justiably in a democratic society. e ECtHR has
opined that this requires that the interference with the right must be in pursuit of a
26
Chavunduka & another v.Minister of Home Aairs 2000 (1) ZLR 552 at 560.
27
See among other authorities, Liberty and others v. United Kingdom, above n 24 at para. 59 and Kennedy v.United Kingdom,
above n 24 at para. 151.
28
Association for European Integration and Human Rights and Ekimzhiev v.Bulgaria, Application no.62540/00, at para. 95 (judg-
ment of 28 June 2007).
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legitimate aim and must only be tolerated to the extent that it is necessary for safeguard-
ing democratic institutions.
29
In addition, it also demands that there must be adequate
and eective guarantees in place to guard against abuse.
30
e constitutional guarantee of the right to privacy in Botswana compares favour-
ably with the protection of the right under international law. e Constitution guar-
antees privacy of the person, which is equivalent to private life, used in international
human rights instruments. While a broad, generous, and purposive approach should
be adopted when interpreting the guarantee of privacy, when it comes to permissible
restrictions on the right, the limitation clause, which is similar to the test provided for
under international, ensures that derogations are narrowly and strictly interpreted.
31
3. THE LEGAL FRAMEWORK FOR SURVEILLANCE OF PRIVATE
COMMUNICATIONS IN BOTSWANA
Surveillance by the State of private communications in Botswana will constitute an
intrusion into the right of privacy. e intrusion can however be justied where the
requirements of the limitation clause to the right in the Constitution have been com-
plied with. Concerns about national security and criminal activity, both of which are
issues of public interest, may justify the exceptional use of surveillance technologies
against private communications. is will require a legal framework that will guard
against arbitrary and unlawful intrusion into the right of privacy in communications.
In Botswana, there is no general law that regulates surveillance by law enforcement
agencies of private communications. In the respective laws that establish the agencies,
only the Intelligence and Security Service Act (ISSA) has provisions dealing with inter-
ception of private communications. It is therefore submied that any interception of
private communications by both the Police Service and DCEC, even if it maybe for
a lawful purpose, would be unconstitutional since the laws establishing the agencies
do not provide for interceptions. e rst limb of the limitation clause to the right to
privacy in the Constitution requires that a limitation on the right must be done under
the authority of law, which essentially demands that the impugned measure must have
some basis in the domestic law. Any interception of private communications by both
the Police Service and DCEC in the performance of their law enforcement duties will
therefore be unconstitutional as it will have no basis in the domesticlaw.
(A) Interception of Private Communications Under the ISSA,2007
e ISSA provides for interception of private communications in section 22, and the
relevant parts of this section provide:
22 (1) Where the Director General believes, on reasonable grounds, that a war-
rant under this section is required to enable the Directorate to investigate any
threat to national security or to perform any of its functions under this Act, the
Director General shall apply to a senior magistrate or judge of the High Court for
a warrant in accordance with this section…
29
Kennedy v.United Kingdom, above n 24 at para. 153.
30
Ibid.
31
See Ketlhaotswe and others v.Debswana Diamond Company (Pty) Ltd, above n 13 at para. 34.
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(4) e court mentioned in subsection (1) may, on application made by the
Director General or an ocer or support sta authorised by him or her to do
so, issue a warrant under this section authorising the taking of such action as
may be specied in the warrant in respect of anything so specied if the court
considers it necessary for that action to be taken in order to obtain information
which –
(a) is likely to be of substantial value to the Directorate in the discharge
of its functions;and
(b) cannot be reasonably obtained through othermeans:
Provided that in the event the Directorate wishes to conduct an investigation of a
personal or intrusive nature such as searches or interception of postal mail, elec-
tronic mail, computer or telephonic communications, the Director General or
an ocer or support sta authorised by him or her shall show cause to a court of
Senior Magistrate or above or a Judge of the High Court and obtain an order in
a secret hearing.
e discussion that follows examines interception of private communications under
the ISSA regime with reference to the limitation clause in the Constitution on the right
to privacy.
(i) Done Under the Authority of Law
The issue here is whether interception of private communications under the pro-
visions of the ISSA will pass this limb of the test. Three conditions must be met
under this part of the test: first, the impugned measure must have some basis in the
domestic law; secondly, the domestic law must be compatible with the rule of law
and accessible to the person concerned; and thirdly, the person affected must be
able to foresee the consequences of the domestic law for himself.
32
An interception
of private communications under section 22 of the ISSA will satisfy the first condi-
tion of the first limb of the limitation clause as it will have basis in the domestic law.
However, it is submitted that the interception will not pass the second condition. In
terms of the Act, the DIS is permitted to make an application for a warrant author-
izing interception of private communications where such would enable the agency
to obtain information likely to be of substantial value to it in the discharge of its
functions. The functions of the agency as spelt out in the Act include the detection
and identification of threats and potential threats to national security and ‘other
duties and functions as from time to time, be determined by the President to be in
the national interest.
33
The latter function of the DIS raises concerns of the rule of
law. It has been held that in matters affecting fundamental rights, it would be con-
trary to the rule of law for legal discretion granted to the executive to be expressed
in terms of an unfettered power.
34
The President is given wide discretionary powers
under the ISSA to determine additional powers of the DIS and what would be in
32
Kennedy v.United Kingdom, above n 24 at para. 151.
33
Section 5 (1), Intelligence and Security Service Act, 2007.
34
Gillian and Quinton v.UK [2010] 50 EHRR 45 at para. 77.
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the national interest. In other words, what is in the national interest is left to the
absolute discretion of the President, and there is therefore the danger that the dis-
cretion could be used for purposes other than the national interest.
e ISSA fails to indicate with sucient clarity the scope of the President’s dis-
cretion in deciding on what would constitute the national interest and the manner
of exercise of the discretion. e ECtHR has developed certain minimum safe-
guards to be set out in law in order to avoid abuse of power in cases of secret meas-
ures of surveillance. ese safeguards include that: the nature of the oences which
would give rise to an interception order and a denition of the categories of people
liable to have their communications intercepted should be clearly stated in the law.
35
e ISSA fails to set out all types of oences that could result in the interception
of private communications as some of the oences are le to the discretion of the
President, consequently, it also fails to dene the categories of persons whose pri-
vate communications can be intercepted. It is therefore submied that interception
of private communications by the DIS, where such is done in the performance of its
duties as determined by the President to be in the national interest, would be a vio-
lation of the right to privacy and unconstitutional on account of failure to comply
with the rule oflaw.
e third condition under the rst limb of the constitutionality test is that of
foreseeability, that is, a person aected by the law must be able to foresee the con-
sequences for him. It has been held that foreseeability in the context of secret meas-
ures of surveillance cannot mean that an individual should be able to foresee when
the authorities are likely to intercept his communications so that he can adapt his
conduct accordingly.
36
Rather, foreseeability means that the law must be suciently
clear in terms to give citizens an adequate indication as to the circumstances and
conditions under which public authorities will be empowered to resort to any such
measures.
37
e interception regime under the ISSA fails this condition of the rst
limb of the limitation clause as it does not set out clearly the circumstances that could
result in the interception of private communications and categories of persons whose
private communications can be intercepted. As argued above, the wide discretionary
powers given to the President to determine oences under the Act does not allow
individuals to know in advance what conduct the President may prescribe as an
oence under theAct.
In addition, it is contended that the concept of national security, the protection of
which is arguably the DIS’s main mandate, is not adequately dened in the ISSA or any
other law in the country. Although national security is a term that is frequently used
in both national and international legislation, it remains a highly contentious concept.
National security is admiedly an elusive concept that may defy precise denition in
law because threats to national security vary in character and may be dicult to antici-
pate in advance. However, there is consensus in international law that genuine national
security interests should be about protecting a countrys political independence or
35
See Kennedy v.United Kingdom, above n 24 at para. 152.
36
See Association for European Integration and Human Rights and Ekimzhiev v.Bulgaria, above n 28 at para 75.
37
Ibid.
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territorial integrity from the use, or threatened use of force.
38
e ISSA does not dene
national security, but threats to national security in the following terms:
39
threat to national security means –
(a) Any activity relating to espionage, sabotage, terrorism or subversion, or
intention to engage in any such activity directed against, or detrimental
to the interest of Botswana and includes any other activity performed in
conjunction with any activity relating to espionage, sabotage, terrorism
or subversion, but does not include any lawful advocacy, protect or dis-
sent not performed in conjunction with any such activity;
(b) Any activity directed at undermining, or directed at or intended to bring
about the destruction or overthrow of, the constitutionally established
system of government of Botswana by unlawfulmeans;
(c) Any threat or act of violence or unlawful harm directed at or intended
to achieve, bring about or promote any constitutional, political, indus-
trial, social or economic objective or change in Botswana and includes
any conspiracy, incitement or aempt to commit any such act or
threat;and
(d) Any foreign-inuenced activity within or related to Botswana that –
(i) is detrimental to the interest of Botswana,and
(ii) is clandestine or deceptive or involves any threat to the State or its
citizens or any person lawfully resident in Botswana.
e denition of threats to national security in paragraphs (a)–(c) above, with the
exception of the use of phrase ‘interest of Botswana’ in paragraph (a), is arguably con-
sistent with international norms as it relates to the protection of the State of Botswanas
political independence or territorial integrity and governance institutions from the use,
or threatened use of force. Part (d) of the denition of threats to national security fails
the condition of foreseeability as it is ambiguous and also confers wide discretionary
powers on the executive without puing in place mechanisms to guard against abuse
of the discretion. In dening threats to national security, the provision refers to ‘any
foreign-inuenced activity. ere is no qualication that such activity should pose
threats to genuine national security interests. e provision is therefore widely craed
and would include activities that have no bearing on the security of the State. Further,
the provision requires that the activity must be detrimental to the ‘interest of Botswana.
is phrase is borrowed from laws enacted in the UK such as the Ocial Secrets Act
1911 which uses the phrase ‘interest of the state’. e House of Lords interpreted the
laer phrase to be identical with whatever the government of the day lays down as
public policy.
40
It is submied that the phrase interest of the state is synonymous with
38
See Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political
Rights, UN Doc. E/CN.4/1985/4, Annex no.30 (1985), principle 29 and Johannesburg Principles: National Security, Freedom
of Expression and Access to Information (adopted on 1 October 1995), principle2.
39
Section 2, Intelligence and Security Service Act, 2007.
40
Chandler v.D.P.P [1962] 3 ALL E.R. 142. See the speeches of Lord Devlin and Lord Pearce at 156 and 160, respectively.
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interest of Botswana.
41
e danger in giving the executive unfeered powers to decide
on what would be in the interest of the state is that the discretion can be easily exercised
in a manner that is self-serving and not in the public interest. Finally, the provision
requires that the activity must involve ‘any threat to the State or its citizens’. e expres-
sion ‘any threat’ is too wide and can be construed by the executive to include acts that
are not necessarily a threat to the security of the State but are perceived to be threats to
the government of the day. For example, the government may consider eorts by inter-
national human rights organizations in collaboration with local organizations aimed at
promoting democratic practices in a country a threat to national security if the govern-
ment perceives such eorts as a threat to its prospects of a re-election.
e denition of threats to national security in the ISSA is not formulated with
sucient precision to enable individuals to anticipate with reasonable certainty what
conduct is in danger of jeopardizing genuine national security interests and therefore
lead to interception of their private communications. An inadequate demarcation of an
area of risk aords neither notice to a person of conduct that is potentially criminal or
an appropriate limitation upon the discretion of the authorities seeking to enforce the
law. e interception regime for private communications under the ISSA thus fails the
rst limb of the constitutionality test as it does not meet the condition of foreseeability.
(ii) Does it Serve a Legitimate Aim
e second limb of the constitutionality test is that the restriction must serve a legiti-
mate interest. e Constitution gives a list of interests that would permit interference
with the right to privacy. One of these interests is defence, which is synonymous with
national security.
42
e principal function of the DIS is to protect national security. It
can therefore be argued that where the ISSA is used to intercept private communica-
tions for the protection of national security, there can be no doubt that it will be in
pursuance of a legitimate aim. Questions relating to the legitimacy of an interception
may arise where the ISSA is used to intercept private communications where the DIS
is executing duties which have been determined by the President to be in the national
interest. It has been held that extreme care must be taken to ensure that laws that limit
fundamental rights are craed and applied in a manner that is consistent with the
respect for human rights.
43
If the President were to assign duties to the DIS that are self-
serving under the guise of the protection of the national interest, then any interception
of private communications in the discharge of such duties cannot be said to be in the
pursuit of a legitimate aim. ere is therefore a possibility that interception of private
communications under the ISSA may not be for a legitimate aim.
(iii) Reasonably Justiable in a Democracy
e third limb of the constitutionality test, which requires that the interference must be
necessary in a democratic society, demands that secret surveillance of individuals’ must
41
See S v.Harrington [1989] 2 SA 348. e Zimbabwean Supreme Court concluded by implication that ‘interest of the state’
and ‘interest of Zimbabwe are the same from the following passage in the judgment: ‘If the provisions of the statute sought
to be construed have nothing to do with common law, the interpretation rendered to similar provisions in a foreign statute
cannot be justiably ignored. ere is no common law involved in the English Secrets Act and its Zimbabwean counterpart’.
42
Council of Civil Service Unions v.Minister of the Civil Service [1985] AC 399 at 410.
43
See United Nations Human Rights Commiee, General Comment No. 34, CCPR/C/GC 34 (12 September 2011)at para. 30.
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only be tolerated to the extent that is strictly necessary for safeguarding democratic
institutions.
44
is means that interference with the right of privacy must conform to
the principle of proportionality, that is, the interference must be appropriate to achieve
the protective function, be the least intrusive, and proportionate to the interest pro-
tected.
45
e application of the principle of proportionality is based on an assessment
of the circumstances of each case. Some of the factors that will be relevant in cases of
applications for interception of private communications were outlined by the ECtHR
and include: the nature, scope, and duration of the measures; the grounds required for
ordering them; the authorities competent to authorize, carry out, and supervise them;
and the kind of remedy provided by national law.
46
is part of the paper examines the
proportionality of the interception regime under the ISSA and the safeguards (if any)
built into the regime for allowing interception of private communications.
e ISSA provides that a warrant for interception of private communications
must be authorized by a court of a Senior Magistrate or above or a Judge of the High
Court.
47
Judicial oversight of communications surveillance is important in a constitu-
tional democracy where there is separation of powers between the main branches of
government. In such systems, the judicial arms main role is to interpret the law and
adjudicate upon disputes of a legal nature between individuals, and individuals and the
state.
48
Interception of individuals’ private communications for law enforcement pur-
poses presents a situation of conict between the individual’s right to privacy and the
public interest. e judiciary, therefore, because of its independence from the execu-
tive, would be the appropriate organ to adjudicate on the dispute. e involvement of
the judiciary is thus an important supervisory measure as a court of law will be beer
placed to carry out a balancing exercise between the competing interests of the individ-
ual and the state. While it is commendable that the interception regime under the ISSA
provide for judicial oversight, it is argued that the involvement of subordinate courts
in consideration of applications for interception is inappropriate. e Constitution of
Botswana provides that in any proceedings before a subordinate court where any ques-
tion as to the interpretation of the Constitution arises, and the court is of the opin-
ion that the question involves a substantial question of law; the court may or shall, if
requested by any party to the proceedings, refer the maer to the High Court.
49
It is
submied that an application for an interception order raises constitutional issues and
a substantive question of law and further that, since the application will be ex parte,
where the aected person would not have a chance to present arguments, it would be
appropriate that applications should be heard by the High Court only. e involvement
of subordinate courts does not provide sucient judicial oversight over communica-
tions surveillance under theISSA.
Derogations on fundamental rights should be narrowly and strictly interpreted. e
fact that the ISSA interception regime requires that courts should authorize an inter-
ception only where the information sought cannot be reasonably obtained through
44
Kennedy v.United Kingdom, above n 24 at para. 153.
45
United Nations Human Rights Commiee, General Comment No. 34, above n 43 at para. 34.
46
Klass and Others v.Germany, App. No. 5029/71, Series Ano.28, paras 49–50 (judgment of 6 September 1978).
47
Section 22 (4) (b), Intelligence and Security Service Act, 2007.
48
See DDN Nsereko Constitutional Law in Botswana (Pula Press Gaborone, Botswana 2002)at p.190.
49
Section 105 (1), Constitution of Botswana [Cap.01:00].
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other means, is therefore very important.
50
It is however lamented that the threshold
required to be established by the law enforcement agency in an interception applica-
tion is set so low such that it renders the application a de facto arbitrary approval of
the agencys request. e Act requires the DIS only to establish that the information
sought is ‘likely to be of substantial value’. is sets the burden of proof for establishing
the necessity for surveillance extremely low. e threshold set in the law would permit
exploratory surveillance for preventative monitoring, which has been held to be unlaw-
ful by the ECtHR.
51
It is contended that the appropriate threshold for establishing the
need for interception of private communications is as provided in the Swiss law which
demands that authorities must establish ‘a strong suspicion that an oence has been
commied’.
52
e high evidentiary burden of proof set in the Swiss law ensures that the
scope of surveillance is as limited as possible to respect the principle of proportionality.
e ISSA therefore fails to strike a proper balance between protection of privacy and
the public interest owing to the low evidentiary burden of proof set in thelaw.
Another relevant factor in the application of the principle of proportionality relates
to the general safeguards that apply to the processing and communication of inter-
cepted material. e law should provide for the protection of information obtained
through interception of private communications in order to protect the aected indi-
vidual’s rights. e ISSA prohibits any person who acquires knowledge of any informa-
tion as a result of an interception order from disclosing the information otherwise than
in the course of their duties.
53
In addition, the Act obligates that any person who has
obtained any information for purposes of the Act should destroy it or a copy thereof
unless the information relates to detection of activities prejudicial to national security.
54
e ISSA regime provides adequate protection for processing and communication of
intercepted information that is consist with international law standards.
e principle of proportionality also requires that the law must aord appropriate
remedy for invasion of privacy through interception of private communications. e
ECtHR has held that such remedies should include: notication to the surveillance
target within a reasonable time aer the grounds necessitating the surveillance have
ceased, an opportunity to contest the surveillance or its eects on the protected rights
before the judiciary, and standing to bring a civil claim for any damage suered as a
result of the surveillance.
55
e ISSA regime does not provide for any notice to the sub-
ject of surveillance or any remedies to a subject of surveillance by the DIS. e law
therefore fails to aord adequate remedies for invasion of privacy.
An examination of the interception regime for private communications under the
ISSA clearly demonstrates that the law fails the principle of proportionality. e Act
does not provide adequate supervisory and monitoring mechanisms over interception
of private communications and therefore fail to ensure that an interception would be
the least intrusive and proportionate to the interest protected.
50
Section 22 (4) (b), Intelligence and Security Service Act, 2007.
51
See Klass and Others v.Germany, above n 46, and S Feiwald and S Metille ‘Reforming Surveillance Law: e Swiss Model’
[2013] Berkeley Technology Law Journal 28, 1260 at 1274.
52
See Swiss Criminal Procedure Code, RS 312 (Switz) 5 October 2007, Art. 269, 273–274.
53
Section 20 (5), Intelligence and Security Service Act, 2007.
54
Ibid, section 44 (1).
55
See Popescu v.Romania (No. 2), App. No. 71525/01, at para. 73 (judgment of 26 April 2007).
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4. CONCLUSION
It has been argued in this paper that there is no general law that regulates surveillance by
law enforcement agencies of private communications and that only the ISSA has provi-
sions dealing with interception of private communications. erefore, any interception
of private communications by both the Police Service and DCEC, even if it maybe for
a lawful purpose, would be unconstitutional since the laws establishing the agencies do
not provide for interceptions. It will constitute an intrusion into the right of privacy.
e intrusion can only be justied where the requirements of the limitation clause to
the right in the Constitution have been complied with. ough the Security Services
Act provides for interception of private communications under certain circumstances,
it is submied that the use of lower courts for permission is undesirable and not likely
to provide the required protection for individual right to privacy. What is required is a
clear and robust legal framework that will guard against arbitrary and unlawful intru-
sion into the right to privacy in communications.
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Germany, above n 46, and S Feiwald and S Metille 'Reforming Surveillance Law: The Swiss Model
  • See Klass
See Klass and Others v. Germany, above n 46, and S Feiwald and S Metille 'Reforming Surveillance Law: The Swiss Model' [2013] Berkeley Technology Law Journal 28, 1260 at 1274.