A Balance Of Rights

IN his book ‘The Art of War’, the great strategist Sun Tzu said: ‘Every matter requires prior knowledge’. He adds: ‘It will not do for the army (country) to act without the opponent’s conditions, and to know the opponent’s condition is impossible without espionage.’

The fact is that in every society there will always be people who will threaten its security, public order, safety, health, morals, economic well-being as well as the fundamental rights and freedoms of individual people. Another terrifying fact is that these people who pose a security threat are increasingly grouping, while using very sophisticated means of communication, and they are elusive.Much has been said in the media about the Communications Bill currently before the National Assembly. It is indeed a tragedy that the Communications Bill is seen by some as a tool that would warrant wholesale interference with the communications of citizens. The fundamental issue with some provisions in the Communication Bill relates to its unavoidable conflict with the Constitution in the regulation of interception of communications. Article 13 of the Namibian Constitution provides for the right to privacy, it also provides for certain conditions or limitations within which the right conferred upon will be enjoyed.The Constitution recognises certain requirements for a democratic society with regard to the right of privacy aimed at creating a conducive environment for all people to exercise their rights and freedoms. These requirements or values are the promotion of interests of national security, public safety, the protection of the economic well-being of the country, the protection of health or morals, the prevention of disorder or crime as well as the protection of the rights and freedoms of persons.There is an irreconcilable difference between interception of communications and the right to privacy. However, interception of communication is necessary for national security, public safety, public order and the protection of the rights and freedoms of the people. It is an inevitable Constitutional conflict. The Constitution, which provides for the right to privacy, puts a corresponding duty on the State to safeguard the rights of the people to safety and security.The law which provides for the interception of communications is applied in South Africa and the European Union just to name a few. In an attempt to balance the two conflicting rights, i.e. the right to privacy and the right to security, Parliament needs to make provisions for judicial oversight and limiting interception of communication to cases where serious crime is involved, and this is exactly the case with the Communications Bill.Gathering, analysing and sharing of intelligence between the state security agencies is vital to the security of our country, it is also vital in the prevention of crime. Individuals that have access to sites, facilities or areas reasonably expected to be targeted by those who engage in activities constituting threats to the security of Namibia need to be put under communications surveillance if there is a reasonable belief that they pose a threat or are about to commit a crime, provided of course that other legal provisions are complied with. Interception of communications could be used to prevent a crime, for example when a group of robbers under a cellphone surveillance is planning a robbery anywhere in Namibia, the Police could thwart the robbery very easily.The 21st century security threats from transnational organised crime, human and narcotics trafficking, money laundering and terrorism could only be dealt with if intelligence is gathered quickly and efficiently. To deal with these threats, the State obliged to protect its citizens must have access to the communication means of organised crime groups and terrorists. Criminals are unable to carry out their activities without modern communication infrastructure. Let it also be known that criminals may already be spying and intercepting our communications. This cannot be ruled out due to the availability of sophisticated software obtainable anywhere in the world.We thus need additional provisions in the Communication Bill which provide that it is an offence to acquire, procure or buy interception of communications software and hardware without authorisation from the State. As Namibia becomes increasingly a digital nation, there is a need for changes in our laws to enable the State to protect our economy from sabotage, national security and public safety interests, which largely depend on the communication infrastructure. This can only be done if the State is afforded access to intercepted communications within the framework of the law which has taken into account the limitation clause of the Constitution. To do that requires a vision that goes beyond absolutism. It also requires effective leadership to ensure that the rights of citizens are not unduly interfered with.O’Linn Kamati Windhoek