President Cyril Ramaphosa has sent back to Parliament proposed legislation intended to strengthen safeguards against undue or secret surveillance, on the grounds that the protections may not be sufficient.

The Presidency said Ramaphosa was motivated by concerns about the constitutionality of the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (Rica) Bill, which governs state surveillance of telecommunications.

Ramaphosa’s office said in a statement that there were risks that, in its present form, the law could be set aside by the courts.

The amendments to the Rica Act followed an order by the Constitutional Court in 2021 that Parliament address defects in the law within three years. The case was brought by the amaBhungane Centre for Investigative Journalism.

According to BusinessLIVE, Rica was found to be unconstitutional in that it failed to provide adequate safeguards to protect the right to privacy. It failed, among other things, to provide for notifying the subjects of surveillance as soon as notification could be given after the surveillance had been terminated without jeopardising its purpose. 

Also, the act provided for one-sided hearings, in that the designated judge would only hear the party applying for interception, and not the party who would be the subject of the interception.

The court also found the Act failed to adequately prescribe procedures to ensure that data obtained through the interception of communications was managed lawfully, and failed to provide adequate safeguards in cases in which the subject of surveillance was a practising lawyer or journalist.

On Thursday, the Presidency said that, in Ramaphosa’s view, “the bill remains unconstitutional insofar as decisions in terms of section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified of the surveillance”.

“The President also believes the legislation is deficient insofar as no review is possible of a decision in terms of section 25A(2)(b) to indefinitely suspend post­ surveillance notification obligations.

“The President also wishes to see the legislation provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained ex parte (in the interests of one side or party only).”

EWN quotes Presidency spokesperson Vincent Magwenya as saying: “President Cyril Ramaphosa has requested the National Assembly to consider afresh the RICA Bill out of concern that the draft law may be vulnerable to constitutional challenge.”

[Image: Pete Linforth from Pixabay]


author