Laurie Nathan, director at the Centre for Mediation at the University of Pretoria.
Laurie Nathan, director at the Centre for Mediation at the University of Pretoria.

THE revelations of fugitive former Central Intelligence Agency employee Edward Snowden that the British spied on South Africa at a meeting of the Group of 20 in 2009 has brought the practice of eavesdropping by governments into sharp focus.

It has to be said that it came as no surprise that the British and Americans were interested in what was going on within the South African delegation. After all, president Thabo Mbeki had been ousted in what was effectively a coup and South Africa had elected Jacob Zuma, a man alleged to be corrupt, president.

Since it is no surprise that most countries routinely conduct surveillance, it is also not surprising that South Africa is processing a law — the Intelligence Laws Amendment Bill — that will allow unfettered monitoring of communications entering the country from abroad.

Given that neither of the above was a surprise, what is surprising is the apparent ease with which the surveillance was executed.

Apparently the South Africans were lured into specially monitored internet cafes where e-mails and cellphone communications were monitored — even though it is common knowledge that you do not even do your banking there, let alone deal with state secrets.

But the biggest problem with all of this is that such surveillance of foreigners is palpably illegal in terms of both international law and domestic law. In SA the Regulation of Interception of Communications Act requires judicial sanction for any surveillance.

Only in dire cases where the interception is needed to stop a serious crime or to save a life are agents allowed to make the interception, then retrospectively apply for judicial sanction.

But the General Intelligence Laws Amendment Bill allows for what is known as foreign signals intelligence to be gathered. This involves the interception of communications originating from outside of South Africa’s borders and includes communications that pass through the country or end up in South Africa.

So clearly a South African in London could very easily have communications with his or her family intercepted because this qualifies as foreign signals intelligence. This would be an infringement of the constitutional right to privacy.

The Mail & Guardian also made the observation that "even where communication is entirely domestic — a Skype call or a Yahoo e-mail between two individuals on South African soil — the bill may still regard it as a ‘foreign’ communication. This is because such communication passes through a foreign server and is therefore, by definition, a foreign signal".

Then there is the small matter of international law.

South Africa is a signatory to the United Nations (UN) Universal Declaration of Human Rights.

University of Pretoria Centre for Mediation director Laurie Nathan says in a critique of the bill that the constitution says " the Republic is bound by international agreements that were binding on South Africa when the constitution took effect, and that customary international law is law in the republic unless it is inconsistent with the constitution or an Act of Parliament".

Mr Nathan further argues that the interception would infringe the right to privacy where the communication is sent by a South African who is outside the country, since citizens do not forfeit their rights in relation to the state when they are abroad.

In addition, article 12 of the Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence … Everyone has the right to the protection of the law against such interference."

This right is repeated in article 17 of the International Covenant on Civil and Political Rights, to which South Africa is a signatory.

In short, says Mr Nathan, the right to privacy is a universal human right that is protected by the constitution and applies as much to people outside the country as to people inside.

"The Constitutional Court has emphasised the necessity for adequate safeguards where legislation permits infringements of the right to privacy. The General Intelligence Laws Amendment Bill does not contain any such safeguards," he concludes.

So, unfettered foreign signals intelligence would infringe the rights of foreigners as well because the UN declaration also guarantees the privacy of the individual.

Securocrat culture has grown significantly in South Africa. Indeed, State Security Minister Siyabonga Cwele, in arguing for the General Intelligence Laws Amendment Bill and the Protection of State Information Bill, often spoke as if South Africa was awash with foreign spies.

Mr Snowden’s revelations create the danger that securocrats will feel even more paranoid than they clearly do now. The spying on South Africans in London and the unfettered power to intercept foreign signals intelligence could have the perverse effect of more and more surveillance taking place without judicial sanction and that is the last thing South Africa needs.