Criminal Procedure and Evidence ( Controlled Investigations) Bill ( 2022)

As one of the first actions of the New Year, Honourable Thomas Kagiso Mmusi, the Minister of Defence, Justice and Security presented the Criminal Procedure and Evidence ( Controlled Investigations) Bill before parliament, for urgent debate on 12 January 2022. According to its preamble, the purpose of the Bill is ‘ to provide for the authorization of investigations for purposes of controlled investigations and the gathering of criminal evidence within and outside of Botswana and to provide for any other related matters.’ An in- depth look at the Bill reveals alarming provisions authorizing the interception of the private communications of individuals by investigatory authorities. This serves as a cause for concern, noting the legally permissible limitations to the right to privacy safeguarded under the Constitution of Botswana as well as in terms of Botswana’s international obligations.

According to Section 9( 1) of the Constitution of Botswana, it provides that ‘[ e] xcept 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.’ In a ‘ broad and generous’ interpretation of the Constitution and in light of instruments such as the European Convention on Human Rights ( ECHR), which inspired its provisions, Section 9( 1) includes protection of the private life of an individual, which inexhaustible covers mail, telephone, e- mail and other digital communications. This is further read in light of Article 12 of the Universal Declaration of Human Rights ( UDHR) as well as Article 17 of the International Covenant on Civil and Political Rights ( ICCPR), which Botswana is a signatory to.

According to Section 9( 2) and consistent with the international instruments cited above, the right to privacy is not absolute. However, limitations to this right must be:

a). Contained or done under the authority of the law;

b). Legitimate in that it protects interests of ‘ defence, public safety, public 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 property for a purpose beneficial to the community,’ among others listed under Section 9( 2)( a)-( d); and

c). Reasonably justifiable in a democratic society.

This is known as the ‘ three- part and/ or constitutionality test.’ In terms of the first requirement, the law in question must be written, compatible with the rule of law and accessible to the public. It must also be clear enough that an individual is able to directs their conduct and foresee the consequences of their actions in law. In terms of the second requirement, the law must serve a legitimate interest. Lastly, in terms of the final requirement, the law must be proportional, in that the interference with the right to privacy must be appropriate and proportionate to the interests being protected and be the least intrusive. United Nations General Assembly Resolution 73/ 179 on the right to privacy in the digital age, calls on states to establish an oversight mechanism for a check to interferences with the right to privacy in the digital age as well as to provide an effective remedy for individuals whose right to privacy may have been unlawfully or arbitrarily violated.

Delving into the provisions of the Bill, Section 16( 1) provides for the interception of communications without a warrant where the head of an investigatory authority believes, on reasonable grounds, that the delay in obtaining an interception warrant would defeat the objective of investigations. In this regard, the head can write a letter authorizing an investigating officer to intercept communications to detect, investigate or uncover the commission of an offence, or to prevent the commission of an offence, or to prevent the commission of any offence. According to Section 16( 2), this is valid for a period not exceeding 14 days. Under Section 17 ( 1) where the interception is required for an extended period of time, an application must be made to the Courts without notice to the party being intercepted, with the application containing information relating to the person who’s communication is being intercepted, the basis for believing that communication relating to the ground on which the application is made will be obtained through the interception as well as particulars about the service provider intercepting the communication among other particulars. Under Section 20 ( 1) of the Bill, it provides that: ‘[ t] he court may grant a warrant to carry out an interception of communications for purposes of gathering evidence of serious crime related activities where the court is satisfied that — ( a) a serious crime related activity is being or will probably be committed; ( b) the gathering of information concerning an actual threat to national security or to compelling national economic interest is necessary; or ( c) the gathering of information concerning a potential threat to public safety or national security is necessary.’

In looking at whether these provisions comply with the constitutionality test, in relation to the first requirement ‘ contained or done under the authority of the law,’ Section 16 ( 1) providing for the interception of communications without a warrant can be argued to be too vague, broad and liable to abuse. On the face of the provision, no measure is made to limit how frequently the Section can be used. Additionally, the head of the investigatory authority seeking to intercept communication is the very same authority, which issues the letter to authorize the investigating officer to intercept without many checks and balances.

Additionally, under Section 20 ( 1) ( b) and ( c), noting the broad and vague definition of ‘ national security,’ this makes it difficult for individuals to direct their actions and foresee what conduct would attract an interception of their communications. Using the basis of national security with how it is currently defined, to justify the interception of private communications, may also give space for the provision to be used beyond a legitimate purpose in terms of the second requirement of the constitutionality test.

In terms of the last requirement, that the limitation to the right to privacy should be ‘ reasonably justifiable in a democratic society,’ this touches on the issue of proportionality. It would seem there is no real limitation in relation to the category offences, which attract the interception of communications and that it may be too broad. Under Section 20( 1), interception is for the category of ‘ serious crime related activities.’ However, under the Proceeds and Instruments of Crime Act, a serious crime is defined as ‘ any offence for which the minimum penalty is a fine of P2 000 or imprisonment for a period of 2 years, or to both.’ Under Section 33 of the Penal Code, it provides that where no punishment is provided for an offence, the default term of imprisonment will be 2 years or with a fine or both. Additionally, no notification of surveillance is given to the person who has had their communication intercepted, even after intel has been gathered, to create a channel for the aggrieved individual to pursue a remedy if their communication was unlawfully or arbitrarily intercepted throwing serious concerns on the constitutionality of the provisions within the Bill.

In this way, the Botswana Network on Ethics, Law and HIV/ AIDS strongly condemns the Criminal Procedure and Evidence ( Controlled Investigations) Bill and raises it voice in solidarity with other civil society members, human rights defenders, political leaders as well as media practitioners in calls for the Bill to be withdrawn.