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Communication bill adopted by National Assembly

(MISA/IFEX) - The controversial Information and Communication Bill was adopted by the National Assembly on 16 July 2009 and will soon undergo legislative review by the National Council. The bill provides for an interception of, among others, e-mail, short messaging services (SMS), Internet banking and telephone calls.

The bill sailed through parliament despite strong opposition by both the media and opposition political parties which felt the bill does not provide proper mechanisms
that would prevent it from being abused by political figures. Unless strict control is exerted on those with access to intercept, they felt it is in for abuse.

Information and Communication Technology Minister Joel Kaapanda defended the bill by stating that the bill only creates the ability to intercept through appropriate infrastructures, but does not create the right to intercept. An amendment was also proposed that the staff appointed to the interception centre be compelled to take an oath of secrecy. Below are submissions made to the government of Namibia, by MISA-Namibia expressing its concerns on this bill.

- The bill does not spell out the person / persons who shall be empowered to issue interceptions warrants. This is unlike Zimbabwe's Interception of Communications Act (Chapter 11:20) which empowers (Section 6) the Minister of Transport and
Communications to issue the warrants.

- Whilst the Zimbabwean statute is more specific in pointing out the person who
may issue the warrants, the proposal here is not for Namibia to adopt the
Zimbabwean position. The likelihood of abuse of power or unfair conduct in the
issuance of warrants by the Minister is too high.

- Where a warrant has been issued, the bill does not impose an obligation on the interceptor to report to a court or the issuer of a warrant or to tell whose telecommunication has been intercepted, what the interceptor has done.

- The Namibian bill also does not specify the duration of each warrant, nor the scope of each warrant. The Zimbabwean interception law for instance provides for (Section 7) tenure of three months for each warrant.

- A better check-and-balance system would be one where an interception warrant is issued by a court of law, subject to the target's right to appeal.

- The right to appeal can be problematic in that sometimes the targeted person
might not be aware of the existence of a warrant issued against him / her due to the nature of the warrant. All the same, the authorisation of a judicial officer for the issuance of a warrant would be better than non-specification as is the case with the Namibian bill, or the specification of non-judicial persons as is the case with the Zimbabwean law.

- Requirements for the issuing of a warrant must be specifically spelled out for use by the issuing authority. Such requirements would include identification of the object of the interception, and proof that the particular information or communication to be acquired is relevant to the object of the application. A standard of proof, such as proof on a balance of probabilities would also enhance the quality of the bill.

- The costs of carrying out an interception exercise should be borne by the
intercepting authority, not by business, since interception is not part of the
profit-making or business sustenance function.

- The law should also have strict guidelines about the use of information gathered from interception activities in prosecutions. For instance, if interception was related to terrorism activities, information from the interception could not be admissible in prosecutions not related to terrorist activity.

- A provision should be included to require law enforcement and the intelligence service to submit annual reports to parliament so that reviews on the effectiveness and continued need of the interception measures are possible.

- The bill should include a specific list of crimes, for which a warrant may be issued.

- Interception legislation should be limited in its tenure. For instance, most of the surveillance portions of the USA Patriot Act of 2001 lasted until 31 December 2005. The sponsor of the Namibian Communications Bill would have to justify any length of life of the surveillance provisions.

- The best authority to issue interception warrants would be courts of law, either ordinary and existing courts, or special courts that may have to be specifically established in respect of telecommunication legislation. These courts would also be
empowered to exercise oversight in respect of the implementation of the
surveillance laws.

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