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.]
FOR A DEPUTY-PRESIDENT who likes to claim responsibility for drafting a Secular Constitution and Bill of Rights that includes Gay Rights and other freedoms associated with the LGBT community, a visit to Iran must present a number of awkward problems. Chief of which is the Iranian Penal Code.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Iran face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity is illegal. “Homosexuality is a crime punishable by imprisonment, corporal punishment, or by execution. The punishment for lesbianism (mosahegheh) involving persons who are mature, of sound mind, and consenting, is 50 lashes. If the act is repeated three times and punishment is enforced each time, the death sentence will apply on the fourth occasion” — Iranian Penal Code.
On January 23, 2008, Hamzeh Chavi, 18, and Loghman Hamzehpour, 19, were arrested in Sardasht, in Iranian Azerbaijan for homosexuality. An on-line petition for their release began to circulate around the internet. “They apparently confessed to the authorities that they were in a relationship and in love, prompting a court to charge them with Moharebeh (“waging war against God”) and Lavat (sodomy).”
At least 146 cases of executions of individuals charged with a “homosexual act” have been documented since 1979. A leading Iranian actor was forced to apologise earlier this year, after coming under pressure over a tweet he posted in support of an historic US supreme court ruling on gay marriage.
Bahram Radan, who is known as the ‘Iranian Brad Pitt’, created controversy in the country “when his tweet hailed a verdict, which made same-sex marriage a legal right across the entirety of the USA.” Same-sex marriage has been legal in South Africa since the Civil Union Act came into force on 30 November 2006. This year’s US ruling thus arrived nearly a decade late.
Iranian High Council for Human Rights Secretary-General Mohammad Javad Larijani has slammed homosexuality as a disease. Former President Mahmoud Ahmadinejad famously said “there were no homosexuals” in Iran in response to a question from a student.
Ramaphosa’s visit comes as secularism remains under threat in his home country, South Africa. If it isn’t the ANC’s Mathole Motshekga disputing the entire scientific theory of evolution, and implicitly endorsing the “super-natural, “creationist” view of our origins”, then it is Halton Cheadle, attacking Progressive Jews for not conforming to the Orthodox version of the Talmud.
Several tracts issued by alliance partners have put paid to the notion that the ANC is on a secular path. The party recently hosted Hamas leader Khalid Misha’al — the leader of an organisation that is involved in an armed struggle to reclaim Jerusalem and the Levant on behalf of an Islamic State.
On June 6 1995, South Africa abolished the death penalty. Capital punishment was rejected by the late Nelson Mandela’s government, as a “cruel and unusual form of punishment”. The twenty-year anniversary of the first constituent assembly which drafted the Bill of Rights, guaranteeing freedom of sexual orientation, will be next year.
The party has no plans to celebrate. The Zuma administration considers the Bill of Rights, an embarrassment, since the foundation document accords artists freedom of expression. Ramaphosa’s visit could therefore signal the return of apartheid-era prohibitions. The end of the ruling party’s experiment in personal freedom. A number of left-wing parties, including the EFF are campaigning for the end of individual rights in South Africa.
[Published in Cape Times, Op-ed 10 November 2015]
THE Films and Publications Board has mooted a proposal for the classification of online content that could result in the removal of free speech and communications freedoms guaranteed by South Africa’s constitution.
The proposal would also seriously compromise the principle of net neutrality.
The draconian and ill-considered plan forces all distributors of online content to register with the board, resulting in a funding regime that would result in government censorship of online communication. In effect we will be paying to be classified, as social media and the Internet itself becomes subject to government fiat in the form of an Internet Tax, followed by an inappropriate ratings scheme borrowed from the countries current television dispensation.
A fee of R450 is proposed for each and every film or online publication distributed over the Internet.
The main concern of the board appears to be the impact of content on children, but there is no reason why adult supervision and caveat emptor should now be supplanted by government controls. The usual scare stories about child pornographers have also been raised.
Unlike television which is programmed and available via terrestrial and satellite channels, the Internet is not live programming as such.
Users have to actively search out sites, in an activity known as surfing.
Most plans to censor online content around the world have failed, since the Internet itself is not controlled by anyone, and historically routes around such obstacles.
Users would simply deploy encryption technology, making it impossible for the board to monitor online content. This is the reason why an earlier proposal by Minister Gigaba for a national firewall was quietly dropped.
In terms of the new regulations, Medialternatives and other online blogs hosted outside the country, could be subject to a government classification committee, in a step which is reminiscent of previous attempts to regulate and censor the press.
Under the ANC ruling party and also during the period of apartheid, various plans have emerged which are nothing less than motions to stifle press freedom and the right of access to information.
In the event of the policy being enacted as law, Medialternatives will refuse to participate in such a scheme, and will not comply with any government request to rate or classify content.
The apartheid state routinely banned publications and periodicals, gagging journalists critical of the regime.
Medialternatives has been publishing free content since 2005.
You can read the policy proposal here
Adam Habib is the man at the centre of a storm surrounding United States’ government ideological exclusions resulting from the Patriot Act and continued onslaught by the Bush administration on academic and intellectual freedom. As a blogger who believes strongly in these rights as well as the right to freedom of association — an important ingredient behind the democratic process, — and also somebody who is affected ( I have had the opportunity to shake hands with Habib, — what Condeleeza Rice calls the enemy), I urge readers to support the present application before the US justice system.
NEW YORK – A leading US civil liberties group mounted a legal challenge against the US government on Wednesday over its refusal to grant a visa to a leading South African Muslim academic.
The American Civil Liberties Union filed the case in Boston challenging the US Departments of State and Homeland Security, who refused scholar Adam Habib a visa accusing him of engaging in terrorist activities.
government failed to explain the basis for its accusation, let alone provide any evidence to prove it,” the group said in a statement.
“The ACLU, in today’s legal complaint, is now demanding that the government substantiate its ban on Habib or grant him a visa.”