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MISA-NAMIBIA STATEMENT ON
THE PROVISION FOR INTERCEPTION OF COMMUNICATIONS IN THE DRAFT
COMMUNICATIONS
BILL
The Namibian chapter of the Media Institute of Southern Africa,
(MISA Namibia), has noted with grave concern the provision for
Interception of Electronic Communications in the draft Information
Communication Bill. It is recognised worldwide that wiretapping
and electronic surveillance is a highly intrusive form of investigation
that should only be used in limited and unusual circumstances.
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Major international agreements on human rights
protect the right of individuals from unwarranted invasive surveillance.
We therefore submit that the proposed law will infringe on the
rights and civil liberties of Namibian citizens:
1. Infringement on freedom of expression and right to information
The provision constitutes a gross infringement on the fundamental
and constitutional rights of Namibians to freedom of expression
and right to information, as per Chapter 3 of the Namibian Constitution.
Citizens should freely express themselves and receive information
without fear of eavesdropping and interception. Citizens have
the right to private, confidential and personal information which
should not come under the domain of the state.
2. Infringement on Privacy
The proposed law is a violation of the constitutional right to
privacy as guaranteed in Article 13 of the Namibian Constitution
that “no person shall be subject to interference with the
privacy of their homes, correspondence or communications”.
The Namibian government has a constitutional mandate and obligation
to uphold the fundamental right to privacy. The setting up of
a centre to intercept electronic communications through the enactment
of a law that does not meet constitutional provisions will be
a gross violation of privacy.
3. Blanket interception of communication
The bill states that interception is meant to combat crime and
for national security. This is wide, vague and open to abuse.
The proposed law mandates service providers to ensure that telecommunications
is provided in a manner that enables interception. We submit
that interception of communications should be an exception rather
than the rule. The bill should narrowly define which type of
communication can be intercepted. In other international jurisdictions
an exception is made to target activities such as money laundering,
terrorism, child pornography or human trafficking.
4. Sweeping powers for interception
The bill gives sweeping powers to individual staff members at
any level to monitor and intercept communication. This is frightening
and clearly open to abuse. Private, confidential and personal
information may be intercepted and abused by the system. Lawyer-client
confidentiality, banker-customer confidentiality, husband-wife
confidentiality, doctor-patient confidentiality and all other
forms of confidentiality will be breached under the proposed
law. There should be a system of checks and balances and judicial
review of any warrant for interception.
5. Financial burden on the communications industry
The proposed law compels service providers in the communications
industry to bear the costs of equipment for interception. MISA
believes this financial obligation is unfair and the costs will
ultimately be passed on to the consumer. This will consequently
render services inaccessible to the poor and disadvantaged who
are already burdened with inhibitive communication costs such
as the imposition of VAT on pre-paid mobile telecommunications.
6. A retrogressive and repressive law
Overall MISA Namibia views the interception of communications
provision as a retrogressive and repressive piece of law that
has no place in a democratic society. We therefore urge Parliament
to refrain from passing a law that clearly violates the rights
of citizens.
7. Recommendations
The Namibian government should develop a policy to:
Ensure that privacy protection is a core consideration in all
activities;
Ensure that accountability for privacy issues is clearly incorporated
into the duties of all institutions, jurisdictions and sub-sectors;
Provide decision-makers with the information necessary to make
fully-informed policy decisions based on an understanding of
the privacy implications and risks and the options available
for avoiding and/or mitigating those risks.
Ngamane Karuaihe-Upi
Broadcasting and ICT Research Officer
Cell: 081 2792332
Tel: 236069
E-mail: broadcast@misanamibia.org.na
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