Optics play an essential role in
Southern African governments’
approach to digital rights —
particularly around protection of
personal data and surveillance.
Governments in the region
want to be seen as being
democratic and progressive,
by passing data protection
and cybercrime laws that may
outwardly seem to be in line
with regional standards.
However, the laws are being
crafted with little distinction
between their intended purpose
and their actual consequence.
Cybercrime laws, which are
meant to protect against online
threats include hacking, identity
theft, fraud, phishing, pharming,
spoofing, profiling, spyware,
tracking cookies, online witch
hunting, bullying and stalking,
tend to include “backdoor
clauses” that allow countries
to spy on their citizens without
protective judicial oversight
mechanisms
to
determine
whether the surveillance is in
the interests of national security
or is unwarranted.
The timing of the passage of
these laws and their selective
application against journalists
and human rights defenders in
particular is also indicative of
the intent behind the use of the
regulations.
An analysis of Zimbabwe’s
Data Protection Act 2021 by
MISA highlights: “that the
government is operating under
a very misled presumption that
cybersecurity equals national
security.”
The Zambian government
passed the contentious Cyber
Security and Cyber Crimes Act
2021 just a few months before
the scheduled August 2021

elections despite vehement
opposition from civil society
organisations.
Alongside
South
Africa,
Botswana is one of the
countries known in recent
times to have requested user
data from global technology
company, Facebook.
Journalists and other media
practitioners
in
Botswana
have also reported suspected
phone tapping and other
communication surveillance by
the Directorate of Intelligence
and Security (DIS).
Newsrooms have been turned
from being bastions of freedom
of expression to closed and
tension-filled spaces dominated
by fear and suspicion of
infiltration.
At the end of 2021, Botswana
seemed to be frantically pushing
to pass what was described as
one of the most contentious
surveillance laws in the region.
The
amendment
of
the
Criminal Procedure and Evidence
(Controlled Investigations) Act
was due to be brought before
the country’s legislature in early
2022.
The Botswana government
argued that the law was being
amended to comply with
the recommendations of the
Financial Action Task Force
(FATF).
South Africa, in this respect,
leads its regional peers through
its Regulation of Interception of
Communications and Provision
of Communications Related
Information Act (RICA), which
requires a judge’s assessment
to allow for surveillance. (15)
But even with its robust law,
the Constitutional Court found
that sections of RICA violated
the Constitution, in a case
brought by journalist Sam Sole
of AmaBhungane, who was
being spied on by the state
without his knowledge. (16)

Save for the Comoros and
Namibia, all other SADC
countries have strict laws which
make SIM card registration
mandatory. (17)
While SIM card registration
is said to aid the fight against
crime, which is yet to be proven,
this registration actually violates
people’s right to communicate
online anonymously, particularly
because
telecommunications
providers,
depending
on
their licensing conditions, are
compelled to give information
about certain subscribers, if
ordered by the State.
For example in the Democratic
Republic of Congo Article 7 of
a 2015 Ministerial Order 15
empowers the government
to have unlimited access
to
subscribers
information
held by telecommunications
companies. (18)

INTERNET ACCESS
Accessing
the
internet
is
gradually
becoming
inexpensive, but it is still out
of the reach of many Africans.
Internet access is hindered by
taxation of internet services,
the licensing of online users,
such as YouTubers and news
sites, and infrastructure such
as electricity supply and base
stations.
It is estimated that nearly 45
percent of Africa’s population
are 10 kilometres away from
network infrastructure. (19)
The vast majority of citizens
in Southern Africa access
the internet through mobile
network operators.
Base stations are sparsely
distributed in rural areas
compared to urban areas,
which means that rural areas
do not have access to internet
services.

STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 9

SURVEILLANCE AND
PRIVACY OF ONLINE
COMMUNICATION

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