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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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.

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... The right to privacy Section 9 of the Constitution of Botswana only protects the spatial aspect of the right to privacy. 22 It protects one's right from being subjected to a search of one's person or property or the entry by another into one's premises. Historically, the right to privacy developed within this narrow compass. ...
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In 2003, the Botswanan Court of Appeal decided in Kanane v The State that discrimination on the basis of sexual orientation was not proscribed by the Botswanan Constitution because no evidence had been adduced showing that the society of Botswana was ready for gay individuals. After sixteen years, things changed: in 2019, in Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General , the High Court held that the law criminalizing anal intercourse violated the fundamental rights of gay people. In 2021, the Court of Appeal upheld the High Court decision. This commentary briefly examines these three decisions. It argues that Kanane gave too much weight to public opinion to the detriment of constitutional interpretation. Through a robust approach to generous interpretation of fundamental rights, the Motshidiemang decisions partly remedied the flaw in Kanane . However, judicial clarification is still required on some aspects of the decision.
... In light of the constitutional provision, limitations to the right can only be possible when subject only to the limitations stipulated in the constitution for the protection of public interest, and they should be narrowly and strictly interpreted (Balule and Otlhogile, 2016). The limitation of a fundamental right should adhere to the three-pronged test of legality, necessity and proportionality taking into consideration the data privacy principles of transparency, accountability, information quality, security and data subject participation. ...
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Governments with a view of mitigating the Public Health Emergencies of International Concern (PHEIC) occasioned by coronavirus disease 2019 (COVID-19), took disparate interventions to aid the health, social and economic well-being of their economies. The interventions included but were not limited to resorting to e-governance for improvement of service delivery, increase integration of Information and Communication Technologies (ICTs) and to support rapid data collection, reporting, contact tracing and data management in an effort to curb COVID-19 Pandemic. ICTs contribution in the PHEIC have brought about enormous risks to privacy and ultimately infringing on various consumer rights. Consequently, this paper examines the place of e-governance and the right to privacy within the status of COVID-19 Pandemic in Botswana. It considers the nature of risks and vulnerabilities brought about by e-governance from a modernist theoretical perspective. The article aims at analyzing the legislative framework surrounding the data protection and the right to privacy and implications of e-governance on Botswana's society by focusing on the risk with which their human right to privacy is exposed to. The study reveals that e-governance is at the center and pivotal in the digital transformation of the country to the Fourth Industrial Revolution (4IR) but the implementation of various e-governance initiatives requires users to provide personal information without clear guidelines and safeguards. The Data protection Act, 2018 as the main legislative framework ensuring stringent protection of personal data and privacy of data subjects alongside others is not yet fully operational due to the absence of a robust institutional framework. Recommendations are made on how to mitigate the challenges and risks with an emphasis on striking a balance between the protection of public health rights and individual rights.
... 68 One of the major concerns for many countries, across the world, relates to state surveillance and monitoring. For example, in the Southern African Development Community (SADC) region only five countries have laws to protect citizens from such surveillance; 69 those countries are Angola, 70 Botswana, 71 Namibia, 72 Zambia, 73 and South Africa. 74 Despite there being a legal framework within the AU and for individual countries, there are several reported instances of AU member states finding ways to monitor citizens extrajudicially. ...
Digital transformation presents a unique challenge for diplomats. It encompasses much more than the digitalisation of diplomatic practice but entails a breakaway from traditional diplomatic engagement. Digital transformation provides new avenues for African countries to advance their interests and embrace agility in their diplomatic practice. More importantly, it offers African states the impetus to harmonise their policies and operationalise existing instruments to realise the dream of socio-economic stability and prosperity. The founding documents of the African Union give expression to this vision. For African countries, these changes present both a challenge and an opportunity. This article provides a conceptual overview of the implications of the digital transformation of diplomacy in Africa. It traces the evolution of the African Union’s digital transformation efforts as an opportunity to revitalise its continental diplomacy.
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.