Graphic: DOROTHY KGOSI/123RF/MARKUS MANKA
Graphic: DOROTHY KGOSI/123RF/MARKUS MANKA

Last week the Constitutional Court rejected the idea that for the state to keep South Africans safe, it has no choice but to put each and every one of us under the microscope of its vast, unchecked surveillance programme.

There was no law authorising such a trade off, the apex court ruled.

The ruling endorses an earlier Pretoria high court judgment that delivered a scathing rebuke on the so-called bulk surveillance programme, under which the spy agency, in the name of national security, is a dragnet for virtually all internet traffic, video calls and e-mail communications in the country. 

Needless to say the apex court ruling  is a victory for personal privacy, even for those who see nothing wrong with the state collecting everything about personal and professional lives  because they have nothing to hide. 

Beyond that it removes one of the biggest threats to freedom of expression, the foundation of any democratic society, as unrestrained mass snooping could potentially make millions of people, especially whistle-blowers, wary of what they say.

“This unregulated, untargeted surveillance of all information is an extreme violation of the right to privacy,” the court said in a majority judgment penned by judge Mbuyiseli Madlanga, who evoked painful memories of SA’s racist past in which the apartheid regime used a skewed notion of national security as a weapon to subvert the dignity of the majority of South Africans.

The court confirmed that such intrusive powers have no legal basis as there’s no law authorising it. Such powers must be explicitly stated in law so they can be considered and debated.

The court joins other countries including those in the EU, whose top court ruled a few months ago that treating everyone as a suspect through bulk data collection was at odds with guaranteed fundamental rights to privacy, data protection and freedom of expressions.

Bulk surveillance programmes have been in the spotlight across the world for much of the past eight years after US National Security Agency (NSA) contractor Edward Snowden leaked a trove of secret files to news organisations that revealed the vast domestic and international surveillance operations carried out by the NSA.

Though many countries did not acknowledge the existence of such unchecked powers in the wake of Snowden’s sensational leaks, SA was among the first to admit to bulk monitoring when it came up in the government legal defence against amaBhungane, a non-profit journalism group, and its managing partner Sam Sole.

The duo launched a legal challenge in 2015 after learning through court papers that state spies had been recording Sole’s phone communications with state prosecutor Billy Downer for at least six months in 2008.

Sole and amaBhungane had taken the government to court to have the legal framework governing the interception of communication, or Regulation of Interception of Communications & Provision of Communication-Related Information Act (Rica), declared unconstitutional.

The court declared parts of Rica unconstitutional for a number of reasons, including that it does not provide for safeguards to ensure the independence of the judge tasked with giving permission for the surveillance or any post-surveillance notification.

If one will never know that they had been spied on, there’s nothing stopping spy agencies from abusing such powers and the person who has been violated is denied an opportunity to seek legal redress. 

While parliament has been given 36 months to fix the defects in the legislation, and there are many, the court has done a reading into the current version of the act to ensure there is immediate recourse for egregious issues.

The state will now have to notify people after 90 days following the expiry of an instruction to surveil them, unless it cannot be given without jeopardising the purpose of the surveillance.

While journalists may be monitored, such monitoring should not undermine the basic conditions of the freedom of the press and the cornerstone of watchdog journalism: protection of the confidentiality of whistle-blowers.

Last week’s judgment is a powerful rebuke of years of secret and unchecked surveillance, and it would raise greater awareness to the broader public that giving too much power to the state not only infringes on the right to privacy but also undermines freedom of speech — a pillar of our democracy.

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