Category: Civil Rights

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Correspondent’s misapplication of law does struggle for human rights a disservice

IN the annual search for a silver bullet solution to the Middle East problem, activists are rushed into reductionist conclusions. In the process open intellectual inquiry, debate and analysis about the conflict closes down. The resulting dogma and political correctness undermines the struggle for human rights.

In a recent piece, published by IOL, correspondent Azad Essa claims: “Not everyone agrees with the Israeli apartheid terminology, despite its rising legitimacy among many academics and scholars in the field. As a contentious analogy, the UN had never – until last week – officially called it apartheid.”

The statement by Essa is only partially true, since in 1975 the UN did in fact issue a resolution 3379 equating Zionism with racism. However after the end of the Cold War, the same UN general assembly issued a resolution 46/86, (adopted on 16 December 1991), reversing its earlier resolution. Thus in 1991 “the United Nations General Assembly voted overwhelmingly … to revoke the bitterly contested statement it approved in 1975 that said: “Zionism is a form of racism and racial discrimination.””

The official count found 111 nations in favor of repealing the statement and 25 nations, mostly Islamic and hard-line Communists, voting against. Thirteen nations abstained. Seventeen other countries, including Egypt, which recognizes Israel, and Kuwait and China, did not take part in the voting.”

That news-hounds can’t be bothered to do their homework, verifying the facts, can be seen by the persistent belief amongst many activists that resolution 3379 is still in force. A 2015 piece by Ben Norton of Mondoweiss, for example, a news outlet exposed as a purveyor of ‘alternative facts’, (i.e. facts which are not true), proceeded to ignore the revocation, and myopically accuses both the United States and Israel of wanting to rewrite history of a resolution which in any event, is null and void.

Until last week, the equation of Israel’s existence with ‘racism and racial domination’, was considered a foregone conclusion, an emerging fact of international law. This week, things were no longer so certain. The problem arose when a controversial report by a UN agency, the Economic and Social Commission for Western Asia (ESCWA) equating Zionism with apartheid, and touted by IOL as definitive of the problem, was suddenly shelved, albeit from intense political pressure. Continue reading

Stop the draconian Cybercrime Bill

IN OCTOBER of 2015, I warned readers of the many dangers inherent to the deeply flawed and draconian Cybercrime Bill, Medialternatives was one of the first publications in the country to break the story, followed by an opinion piece written by myself and published by the Cape Times, I therefore feel obligated to respond to the latest round of publicity on the subject.

The bill continues to threaten the ‘fundamental democratic spirit of the Internet and increases the state’s surveillance powers.’ The allegations have been denied (but not refuted) by deputy minister of justice and constitutional development, John Jeffery, at a media briefing on the Bill in Pretoria last week.

Although the latest version of the bill that will be introduced to Parliament is ‘considerably different in many respects to the Bill that was issued for public comment,’ it still contains provisions which are highly problematic from a civil rights perspective, in particular the erosion of the communications rights in our Constitution which favour individual data gathering and information sharing.

Advocacy group Right2Know Campaign (R2K), which is opposed to the Cyber Security Bill and has called for it to be scrapped, says via ITWeb, that despite the revisions, the fundamental fatal flaws of the Bill are still there.

R2K advocacy coordinator Murray Hunter says the organisation recognises the Department of Justice has made some important revisions in the Bill:  “But as far as we can see, the fundamental, fatal flaw of the Bill is still there − it would hand over the keys of the Internet to state security minister David Mahlobo.”

Particularly worrying is the bill criminalises the modification of computer programmes by users, in effect open intellectual inquiry is outlawed by a presumption that any curiosity for instance, is evidence of an ulterior motive. Why would users want to gain access to their operating systems, if only to engage in crime?

The bill is thus an amalgamation of paranoid and securocratic concerns about potential, online criminal activities, From hacking to interception of data, from forgery and uttering, to  extortion and even terrorist activity. And most certainly there are very real reasons to be afraid these days of unwanted intrusions such as identity theft, fraud and surveillance, but should modifying computer data be grounds for the presumption of criminality?

Similarly, the use of common network tools, such as ping, finger, netstat and so on, would under the current version of the bill, also incur the legislators wrath.  Why would anyone wish to analyse network traffic if only to commit crime? The mind boggles at the scope and sheer over-reach of the contemplated new statute.

Removing bloatware, adware and other unwanted intrusions by software companies, will not surprisingly, also run the risk of offending the new proposed law. There are many articles available online, on the issue of whether computer software users do have or ought to have the right to modify legally-obtained software, either themselves or through the services of another party.

“Private software consumers should have those same modification rights under intellectual property law that are recognized when the government is a consumer of software” says Pamela Samuelson of Berkeley Law Review. The Free Software Foundation has long campaigned for user rights to modify and alter computer programmes. The entire open source movement is predicated on the rights contained in the GNU/Linux General Public License (GPL), which expressly allows such modifications.

One of the novelties inside the bill is the new delict of “theft of an incorporeal”. One can only presume this is meant to convey the idea of virtual objects, which may be copied without permission and thus also “stolen”. In legal tradition the crime of theft usually deprives the owner of property, not simply by leaving behind the original and making a digital copy, which has lead many internet rights activists to point out the inherent contradiction.*

The overly-broad definition of “computer” by the bill, leaves much to be desired, and opens up users to unwanted litigation merely for possession of a personal computer, and thus an unnecessary attack against general purpose, personal computing. In today’s interconnected and networked world, it is often difficult to determine where an intrusion or ‘cyberattack’ originates, and what exactly is being conveyed by the noughts and ones of machine code.

Turning victims into criminals isn’t the solution.

You can read more about this debate on  Itweb, with an excellent contribution by Simnikiwe Mzekandaba

See my separate article on how internet rights were included in South Africa’s Constitution.

(*NOTE: In 1991 South Press carried a pioneering article by myself, pointing out the problem of defining property in the computer age, the M&G refused to run a follow-up citing concerns to do with property-ownership. I later participated in the campaign to include Internet rights in the Constitution)

Links

Smash the Apartheid State #FeesMustFall

IN AN admittedly hard-hitting piece, former anti-apartheid activist Jay Naidoo tackles issues of good governance, which he says is our right, not a privilege.

“Our demands for fundamental liberties, encompassing  human, labour, gender, sexual orientation, community and land rights” he says “are met by political elites’ concerted push to strangle citizen action through laws, policies, financial restrictions, intimidation and outright violence.”

Typically, Naidoo, like so many activists drawn into the fold of the African National Congress —  a party formation which has failed miserably to transform South Africa into an exemplar of good governance — resorts to homilies on the simplistic return to the “rule of law”. The self-same mantra deployed by the security establishment and party insiders targeting students, unleashing violence which he notably criticises, as does commentator Eusebius McKaiser, who warns of the abuse of state security against overzealous students.

Coming twenty years in the aftermath and the anniversary year of the signing into law of the foundation document of the nation — our Bill of Rights — the ‘rule of law’ is anything but. Rather law, and by that I don’t mean all law, has turned into the ‘law of rules’, and thus constitutionalism, has produced nothing more valuable than legal contortionism — a byzantine, professional and well-heeled legal bureaucracy dependent on a superabundance of legal fees, has acted to deny us ordinary citizens our rights — impinging on access to the law, whilst also curbing fundamental freedoms, such as the right to assembly.

As I write this, and speaking as an active participant in the 1987 student revolt against apartheid, I have yet to receive any recognition from Minister Michael Masutha of my right to an attorney at state expense in a TRC-related case (EC19/2015). I therefore have no hesitation in endorsing the campus unrest, reminiscent as it is of the spirit of 1987.

Martin Luther King’s “Letter from a Birmingham Jail” explains why civil disobedience is sometimes necessary to bring light to an unjust law. Similarly, our founder, Nelson Mandela advocated civil disobedience against the unjust laws of the apartheid state. He would probably look on in horror at the growing militarisation of our nation’s campuses, and unlike Naidoo, exhort students to continue their protest action.

So no Mr Naidoo, your easy prescriptions and reliance on NGO statistics are better left to former apartheid functionaries. After twenty years of abuse, we really don’t want your ‘rule of law’, any more than an alcoholic desires a hangover, and surely not each and every law out there.

What we do want, rather and better formulated here, is a citizen’s law. A common legal dispensation which distances itself from the apartheid codex and racist decrees of the past. A common law which recognises that the Bill of Rights is not some ‘carrot on a stick’, nor a two decade long entitlement programme for legal professionals.

And certainly not a mere document serving the sole purpose of cappuccino drinking, robed solicitors earning inflated fees at the Cape bar, nor a get rich quick scheme for portly barristers paying off their third mortgages on holiday homes at Plettenberg Bay, while dining fatuously on sushi and kobe beef, reading De Rebus in the Mall. No Mr Naidoo, the Bill of Rights should rather be considered the very beginning of our law.

Until students return to classes, until citizens themselves are returned to the legal system, as equal partners, fully emancipated and possessed of equal rights, and until the role of lay assessors is expanded, there will be calls to either reform the judiciary, or remove its stifling and overbearing colonial influence from society altogether. One has merely to examine South Africa’s corrupt proxy judge system in which any sizeable law firm is able to dish up an attorney to act on the bench in favour of his or her client, to realise that something is rotten in the state of Denmark, to use a bardic phrase.

In its special hearings into the role of the legal community the TRC found: “part of the reason for the longevity of apartheid was the superficial adherence to ‘rule by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice.”

The crisis of legitimacy in which South Africa’s legal institutions find themselves today, where ordinary citizens are for the most part excluded, disempowered, often ignored, is both a tragedy and a farce, with the result that law libraries burn on a regular basis, while persons such as Naidoo resort to the self-same platitudes and pseudo-scientific aphorisms associated with the apartheid regime.

Now is the time to revisit our nation’s foundation stone, the Bill of Rights and its democratic values. To reboot the TRC process, to put an end to impunity and to examine the struggle record, and to free students from the scourge of fees once and for all. It is not the time for ideological dissertations that lead nowhere except back to PW Botha, BJ Vorster and HF Verwoerd.

Senior MK Commanders petition

Memorandum from Senior Commanders and Commissars of the former military wing of the ANC, Umkhonto we Sizwe.

1. We, the undersigned, are all committed cadres of the African National Congress, having served our glorious movement for many decades. Throughout our lives, and whenever the need arose, we did not hesitate to raise our hands to be counted among those who could be deployed by the ANC in the service of our country. Whatever the challenges we faced, whatever the risks we had to endure, we gave our all. In responding to the call of duty, we never strove for personal benefit, status or power. We executed our tasks as commanded to us by the leadership of the ANC, comfortable in the knowledge that the decisions of the leadership were based solely on the selfless pursuit of the well-being of our people. As such, we did not hesitate to shed our quota of blood.

2. We responded to the call of duty, because we correctly believed, as we still do, in the centrality of the ANC in the people’s struggle against apartheid, and in the democratic transformation of our society to achieve a better life for the people of our country.

[ … ]

11. Further, over the years we have witnessed, amongst other things, the rise of factions and slates, the diminishing quality of ANC cadreship, the rise of antagonisms within the Alliance, the breakaway of Unions from Cosatu, the break-up of the ANC youth League, the marginalization of committed ANC comrades, the rise of vulgar and unsophisticated politics within the ANC, the silencing of critical but necessary voices within the ANC, the wanton destabilization of critical state institutions, the wasteful expenditure of state resources, the devaluing of the critical institution of Parliament, the erosion of trust within the various arms of the State, the unprecedented rise of patronage and cronyism, the Juniorization of the State and the ANC and most alarming of them all, the use of the State machinery for the private interest of the few.

READ THE PETITION HERE

Signed by General Siphiwe Nyanda

on behalf of the following

Brig Gen Damian de Lange

Mongezi India

Amb Mzuvukile Maqetuka

Mavuso Msimang

Jabu Moleketi

Sindiso Mfenyana

Bob Mhlanga

Dipuo Mvelase

Amb George Nene

Amb Welile Nhlapo

Greg Ntha

Gen Nhlanhla Ngwenya

James Ngculu

Gibson Njenje

Brig Gen Ngqose

Dr. Ayanda Ntsaluba

Zukile Nomvete

Commissioner George Rasegatla

Johnny Sexwale

Brig gen Sejake

Ka Shabangu

Amb Moe Shaik

Sipho Twala

Mike Thusi

Dr. Snuki Zikalala

Ambassador Super Moloi – supermoloi@gmail.co.com

Colonel Mafa Scelo Ngeleza – mafa1.ngeleza@yahoo.com

Terrence Tryon – terencetryon@gmail.coom

Mandla Langa – mlanga7@gmail.com

Nehru “Banda” Mali – nehrum@webmail.co.za

Molefe “Sugar” ntlhengmolefe@gmail.com

Brig Joseph Maselele Jongile – jmjongile@gmail.com

George Mnisi – sam_mnisi@hotmail.com

Meshack Mei – smokey.anc@gmail.com

Jabu Sithole – jabusithole499@gmail.com

Reports of the death of communications privacy are greatly exaggerated

This is a guest post by Jane Duncan who is a member the Right 2 Know Campaign, a South African campaigns group that is a member of the Privacy International Network.

On 23rd March the United Nations Human Rights Committee released its assessment on South Africa’s compliance with the International Covenant on Civil and Political Rights (ICCPR). The report includes a blistering attack on the Government for failing to respect the privacy of the communications of users and makes recommendations to reform the laws and practice of surveillance in the country.

The Committee’s findings repudiated the Government’s claims that its surveillance practices, based on the Regulation of Interception of Communications and Provision of Communications-related Information Act(or, RICA, as it’s commonly called in South Africa), are justifiable, given the country’s extremely high crime rate and the global terrorist threat.

RICA makes it illegal to intercept communications without a warrant from a designated judge (the “RICA” judge). Law enforcement and intelligence agencies are authorised to use the Act to assist investigations, providing they follow the procedures in the Act.

South Africa’s Parliament passed RICA into law along with other anti-terrorist laws in the wake of the September 11, 2001 attacks on the US. The world was in shock at the brutality of the attacks, and in South Africa, citizens were also crime-weary after a massive crime spike in the late 1990’s. As a result, many were more open to rights-reducing laws like RICA. But more people are realising that, in their freedom, they may have given an important element of their freedom away, namely the privacy of their communications.

In the past, when there has been political ferment in the ruling party, different factions have abused their access to the communications surveillance capacities of the state to spy on their perceived opponents. The full extent of these problems came to light in 2008 when a ministerial report into these abuses was leaked to the press (known as the Matthews Commission report).

The Matthews Commission proposed wide-ranging reforms to prevent similar abuses from occurring again. However, there is little reason to believe that these reforms have been implemented. One of the practices the Matthews Commission criticised was that mass surveillance did not fall under RICA. The UN Committee has amplified this criticism in its report.

There are two interception centres in South Africa: The Office for Interception Centres (OIC), which is established by RICA to undertake communication interception, and The National Communications Centre (NCC), which undertakes mass surveillance, and which isn’t established or regulated by any law. This lack of regulation and oversight renders such mass surveillance unlawful and unconstitutional. After the Matthews Commission report was released, the-then Ministry of Intelligence developed two Bills to regulate the activities of the NCC. However, once the Jacob Zuma Presidency assumed office, both Bills were shelved.

This means that the most powerful mass surveillance machine of the state is the one that is least regulated: an issue that should concern South Africans greatly, as the Government has a track record of abusing such power.

Other abuses have come to light, despite of the lack of transparency around government spying. Sunday Times journalist Mzilikazi wa Afrika, had his communications intercepted by members of the Crime Intelligence Division of the police, on suspicion that his frequent trips to neighbouring Mozambique meant that he was gun-running. Yet in fact, he was pursuing a story for the paper.

Perversely, the Inspector-General of Intelligence – tasked with oversight of South Africa’s intelligence services – declared the interception of wa Afrika’s communications legal, as the police had followed the RICA process. This situation arose because the grounds for the issuing of interception warrants in RICA are vague and speculative. This was another concern in the UN Committee report.

The Committee also expressed concern over weak safeguards, lack of oversight, and lack of remedies against unlawful interference. The RICA judge marks his or her own homework, in that s/he signs off on interception applications, while also being the sole party responsible to report on such decisions in an annual report to Parliament’s intelligence committee.

The Committee also noted that RICA is also weak on metadata protections. RICA requires communications service providers to retain all metadata (or what it calls communications-related information) for 3 to 5 years.

Blanket retention of metadata has become a hugely controversial issue. In 2014, the European Court of Justice struck down the European Union Data Retention Directive saying such retention was  disproportionate to the aim it sought to achieve. South Africa remains out of step with this important development, and blanket retention of metadata persists.

Another controversial feature of RICA is the requirement of Subscriber Information Module (SIM) card registration. This is a de-facto violation of privacy because it limits the ability of mobile phone users to communicate anonymously. A growing body of international research also suggests that this measure is useless as a crime-fighting tool, which raises the question of why such a requirement persists in South Africa. More worrying, mass surveillance technologies can also be bolted onto the SIM registration database.

While the Committee did not pronounce on all issues of concerns, such as South Africa’s possible use of IMSI Catchers, and RICA’s lack of user notification, the Committee’s recommendations are a major advancement in the struggle for privacy of communications in South Africa. It is now up to civil society and popular movements to pick up the cudgels and ensure that abuses – to the extent that they exist – are stopped.

Many have argued that in the age of the internet of everything, privacy is dead. Those who make this argument, including in South Africa, appear not to be aware that the struggle for privacy is, in fact, alive and well, and even gaining ground.  Happily, the Committee’s report on South Africa shows that reports on the death of privacy are greatly exaggerated, to paraphrase Mark Twain.

[Ed note: This piece first appeared as: Reports of the death of communications privacy are greatly exaggerated: reflections on recent UN Human Rights Committee’s findings on South Africa, by Privacy International.]