Political Perspective

AND so the controversial Communications Bill is almost a reality, despite serious concerns from various quarters and the walkout by the entire political opposition in Parliament this week over the refusal of the ruling party to change the word ‘may’ to ‘shall’ with regard to the necessity for a warrant to intercept communications, generally known as the ‘spy’ clause. Of course I would agree with the opposition on this point, more particularly because I believe that the clause is in conflict with Article 21 of our Constitution.

THE media may be perceived to be unduly sensitive about things like ‘interception’ but that’s because, more often than not, they’re one of the main the targets. Those who are OK with the Bill as it stands justify it by saying that Namibia is not the first, or last, country to have such legislation in place and that it’s not such a big deal.They’re right that we’re not the first and won’t be the last, and there are a variety of reasons cited by those various countries as to rationale behind interception of communications. Of late, it’s mostly to do with ‘international terrorism’ especially in the wake of the bombing of the World Trade Centre in the US in 2001. Or cyber crime.Many of those of us who worked during the apartheid era were the subject of interception of telephonic communications and mail, among others, and I still have a fairly historic document in my possession in which the head of the Security Police in Pretoria authorised the interception of my mail in the 1980s ‘for reasons of state security’. After I in turn revealed this document to the rest of the press corps, I was arrested in terms of the Official Secrets and Internal Security Act, and after jail time was forced to live uncomfortably for the next few months being restricted to Windhoek magisterial district, my passport confiscated and having to report to the police station several times a week. The charges against me were, of course, later dropped.Way back then the apartheid authorities denied tapping ‘phones and intercepting mail, although it was an open secret that they did so, and the document that then accidentally came into my possession was proof of this.I won’t necessarily argue the fact that at times it may be necessary, and hopefully this would always be for criminal and not political reasons, to intercept communications of some kind. But they must, as a consultant reviewing our Communications Bill recently said, ‘proceed from the pro-human rights paradigm on freedom’. Legislation like this does infringe on individual rights to freedom of expression, speech and communication, as well as the right to privacy and other fundamental freedoms, and obviously needs to be embarked upon (if at all) with great care and circumspection.Our Constitution also provides under Article 13 that: ‘no persons shall be subject to interference with the privacy of their homes, correspondence or communications …’ and so the interception clause of the Bill clearly goes against the letter and spirit.The big question of course is why they want to intercept, and the Bill should spell this out. Criminal activity perhaps, but I’ve always had a problem with ‘national security’ because the term is widely abused to target political opponents, civil society and media.I doubt Government needs this clause at all, and if they do, why won’t the ruling party agree to the word ‘shall’ rather than ‘may’ in regard to the necessity for a warrant in such cases. Clearly this is wide open to abuse if the word ‘may’ is unchanged and it is unacceptable because an interception of any communication should only be allowed in cases where the authorities are required to give a judge, for example, ample evidence that such spy tactics are warranted.What is also important in considering the ‘spy bill’ as it has already become known, is the nature of our society, where witch-hunts are already the order of the day even with regard a legitimate political opposition party! And ironically, in a democracy where one’s vote is supposed to be secret, our people are still obsessed with the political allegiances of others. So putting the wrong tools in the wrong hands in an environment like this could spell even more disaster.At the end of the day though, a suspicious and undemocratic government will intercept even if they don’t have the legal authority to do so! They did it in the apartheid era, and I’m pretty convinced they’re still doing it right now in independent Namibia, bill or no bill!At the end of the day, in my view, interception simply isn’t on except in the most exceptional of cases to be preceded by rigorous interrogation of whether it would be justified on grounds of clear criminal activity or threats to the national interests.