The first area that needs to be fixed is around communication surveillance. President Cyril Ramaphosa needs to address the deficiencies in South Africa’s targeted lawful interception regime, which is governed by Rica (the Regulation of Interception and Provision of Communication Related Information Act). Otherwise, his government may be forced by the courts to introduce reforms.
Currently, the amaBhungane Centre for Investigative Journalism is challenging the constitutionality of Rica and it is possible that the law will be found constitutionally deficient.
The background to this case is that state spies intercepted communications between journalist Sam Sole and the National Prosecuting Authority’s Billy Downer. The centre is arguing that not only does this violate their right to protect their confidential sources of information, but it also raises a whole series of constitutional problems with Rica.
The Department of Justice and Correctional Services, on the other hand, has argued that there is nothing wrong with Rica, as it strikes an appropriate balance between the right to privacy on the one hand, and the interests of justice on the other. The department is wrong, and I will explain why.
The main problem with Rica is that the process of granting interception directions (or warrants) to the spy agencies takes place in a closed circle. It relies overwhelmingly on an affidavit that the agencies provide to the Rica judge warranting that the information they’ve provided in their applications is correct. But it is too easy to falsify the affidavit and these lies will almost certainly not come to light.
In effect, the Rica judge has to take the information provided to him or her in the applications at face value and on trust. In turn, the oversight bodies – the Inspector-General of Intelligence and the Joint Standing Committee on Intelligence (JSCI) – rely on the judge to highlight abuses of process.
The cases of abuse that are known have come to light in spite of, and not because of, these oversight bodies, which suggests that they are ineffective watchdogs of the process.
The main guarantor against abuse is user notification. In other words, within a specified period of time after a direction lapses, or once an investigation reaches a non-sensitive stage, the person whose communications have been intercepted should be informed.
Needless to say, user notification should be delayed if it may prejudice the interests of justice. But it is essential that as a general principal, those who have been spied on through their communications should know, so that they can contest the directions if there was no basis for them being spied on. The department has opposed user notification, which is unfortunate.
The Rica judge is in a vulnerable position in that s/he is the only pair of eyes on the spy agencies’ applications. This is not to impugn the integrity of the Rica judge, but the entire Rica system does the judge no favours. The office of the Rica judge is desperately under-resourced, and the problem is getting worse as the number of applications is increasing. Rightfully, these applications should be considered by a panel of judges.
Furthermore, the judges should be assisted by public advocates who represent the broad interests of communications users; this innovation would introduce a more adversarial component to the process. The current system goes against the most basic legal principle of hearing the other side before deciding on a case.
The job of the Rica judge is difficult and stressful. The judge operates knowing that his or her reputation could be ruined by an incorrect decision. The experience of former Rica judge Joshua Khumalo – who was duped into granting directions against former police Commissioner Bheki Cele and two Sunday Times journalists – has cast a dark shadow on this office.
The department has argued that introducing more people into the Rica process could pose security and privacy threats. They are wrong. In fact, the threats are much more severe in the current system. This is because opportunities to scrutinise the applications are so limited, and in fact the entire system turns on one person, who can too easily be lied to.
The department has made a much more substantial argument against the public advocate, namely that introducing one will slow the process down, as an additional person will be scrutinising the applications. But courts expedite urgent applications all the time, so there is no reason why a new system could not be devised that is both fast and thorough.
All that is needed is some ingenuity, open-mindedness and the political will to devise a new system. In any event, during my research I learnt that owing to the lack of resources in the existing system, the judge’s decision can take between three to five days, which is hardly fast.
I do not think that it is a coincidence that the entire Rica system was under-resourced under Jacob Zuma’s presidency. In fact, the JSCI has been complaining about a related problem, which is that the entity that undertakes the Rica interceptions, the Office for Interception Centres (OIC), operates with outdated equipment.
Furthermore, the OIC concentrates on voice intercepts, not the internet, which means that its capabilities are frozen in time and even antediluvian. Add this to the under-resourcing of the Rica judge’s office, and it would seem that the Rica process has been run down deliberately to allow the criminal networks around the former president to flourish. The predictable result has been a rise in organised crime, including corruption.
In this regard, the department claims that Rica plays a significant role in bringing down serious crime. But there is no empirical evidence to prove this claim. In the US system, the public is provided with annual reports including information on the number of intercepts that resulted in arrests and convictions.
There is no reason why the Rica judge and the JSCI cannot do the same, and this information would most likely suggest that Rica has become fairly marginal to fighting crime. On the other hand, if the entire Rica process were taken more seriously than it is, there is little doubt it could play a much more significant role.
The process could even have helped prevent the kinds of grand corruption we saw under Zuma’s presidency. But it didn’t, and it didn’t because the system was set up to fail.
And that is what Ramaphosa needs to fix.
The department really does need to rethink its positions on Rica. After all, none other than Chief Justice Mogoeng Mogoeng has expressed concern about his phones being tapped, although by who and on behalf of whom is not known.
If South Africa’s most senior judges have concerns about communication surveillance being under-regulated for accountability and transparency, how likely is it that the department will receive a sympathetic hearing on the constitutional issues?
If there are problems with the Rica system, though, these are small when compared to the problems around the spy agencies’ uses of strategic mass surveillance and tactical surveillance.
In my next article, I will explain why the State Security Agency (SSA) is wrong to argue that these forms of surveillance are regulated appropriately, and what President Ramaphosa needs to do to bring them under greater democratic control. DM
Jane Duncan is a professor in the Department of Journalism, Film and Television at the University of Johannesburg. Her new book is titled Stopping the spies: constructing and resisting the surveillance state in South Africa (forthcoming from Wits University Press)
"Man is by nature a political animal" ~ Aristotle