Botswana pushes warrantless surveillance bill, threatening press freedom

The IPI urges the government to withdraw the legislation and engage in wider stakeholder consultation

IPI Contributor Kelsey Carolan

February 1, 2022

The global IPI network today urged Botswana to withdraw a bill that would allow warrantless surveillance of communications. The bill has been strongly criticized by media representatives in Botswana and Africa.

The government of Botswana is currently pushing the Criminal Procedure and Evidence Bill through Parliament. If passed, the bill will have a chilling effect on press freedom, warned Spencer Magopi, president of the Botswana Editors Forum.

A review of the bill, a copy of which was obtained by the IPI, shows that it would allow authorities to intercept communications without a warrant if the head of an investigating authority “believes on reasonable grounds that the delay in obtaining an interception warrant would defeat the purpose of the investigations”. Alarmingly, this would apply to investigations into the commission of any offense and could be allowed for up to 14 days.

Magopi said this would effectively ban the practice of anonymous sources as journalists would not be able to guarantee anonymity since authorities could intercept communication between the journalist and their source if they deemed it necessary.

The bill also imposes a disclosure obligation on persons suspected of having information relevant to an investigation.

“The law is that they can force this information and extract it from a journalist,” Magopi told IPI. “Journalism is as if dead.” He added that most sources want anonymity for fear of government reprisals.

Additionally, the law would require telecommunications service providers to ensure that their systems are “technically capable of sustaining lawful interception at all times”, implying that service providers would have to provide access to encrypted communications. Providers would also be required to install hardware and software to facilitate interception and monitoring as needed. Service providers who fail to comply with the law would face fines and their administrators could face up to 10 years in prison.

“This bill contains a nightmarish list of provisions that threaten press freedom and independent journalism in Botswana,” said IPI Deputy Director Scott Griffen. “It would seriously compromise the protection of sources and expand the power of government oversight and, without proper safeguards, could be misused against the media. The ability of journalists to protect the identity of their sources is a necessary condition for the role of the press in holding power accountable. Investigative journalism in particular would be seriously threatened by this law.

“Such ambitious legislation must be subject to public scrutiny and debate and must comply with international human rights standards. We urge Botswana to withdraw this Bill in its current form and engage in meaningful consultation with all relevant stakeholders, including members of the media community and civil society. Given its potential serious consequences for press freedom and privacy, it is imperative that this bill is not rushed through Parliament.

Heavy criticism in Botswana and abroad

Magopi told IPI that the Botswana government is citing the fight against money laundering to pass this bill, saying it will close security gaps. Last October, the Financial Action Task Force (FATF), a global money laundering and terrorist financing monitoring agency administered by the G7 group, removed Botswana from its gray list. Countries on the gray list have limited access to international loans. The government claimed that it had to put in place some reforms to stay off the list, which is why it classified this bill as urgent.

The manner in which the government chose to implement the reforms, however, caused widespread concern.

“This is by far the worst legislation to come to light in Botswana, the Southern Africa region and the rest of the continent in recent history. The government of Botswana must lower its head in shame and withdraw the bill immediately,” Jovial Rantao, president of the African Editors Forum, wrote in a January 27 statement.

Mixed press freedom record

Press freedom in Botswana is considered to have improved since 2018, when President Mokgweetsi Masisi took office, succeeding President Ian Khama. Journalists came under more pressure under the Khama administration, as investigative journalists were arrested and a news site suffered a major cyberattack. However, the government is still undermining journalists, Tefo Phatshwane of the Media Institute of Southern Africa said in a January 31 TV interview.

Phatshwane said that although there have been no cases of journalists being imprisoned in recent years, draconian laws restricting journalists are still in place. The Media Professionals Act 2008 created an oversight body to regulate journalists, with the aim of “safeguarding the maintenance of high professional standards”. It also makes registration compulsory for all media workers and bodies.

“We cannot allow the government to be part of our regulation,” Phatshawne said. “We should take the lead. The government should put in place a law that gives us the power to regulate ourselves and to correct, to prosecute and to suspend, or whatever, in cases where we need to do so.

In addition, Botswana still lacks freedom of information, which gives the public access to government records. Phatshwane said journalists had urged parliament to pass this type of bill.

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