Monday, July 22, 2024

Botswana uses Israeli inspired digital surveillance on journalists?

The world’s leading diamond producer by value and wildlife-endowed Botswana has long been considered one of Africa’s most stable countries and the continent’s longest multi-party democracy. 

Compared to its regional and continental peers, it is relatively free of corruption and the economic indicators have been good for a long time.

But the real picture is probably not as pretty and glowing is if often portrayed especially in view of growing concerns that the state is increasingly deploying digital surveillance to snoop on journalists in contravention of cherished principles of press freedom and fundamental rights to privacy and freedom of expression among others.

The use of sophisticated technology to hack into journalists’ phones, the confiscation of their communication devices and their harassment for what the government considers  “alarming publications is prevalent. 

According to the 2023 World Press Freedom (WPF) Index, Botswana had a significant rise as the Reporters Without Borders (RSF) report placed it at number 65 out of 180 countries, rising 35 places up.

Journalists under siege

Despite such stated gains, Botswana Editors Forum (BEF) Chairperson, Emang Bokhutlo-Mutapati, says journalists remain under siege from the state.

In an interview, Bokhutlo-Mutapati, who doubles up as editor of, The Voice newspaper, says journalists under her stable have become victims of state surveillance and repression.

“I have had one of my own journalist’s phones confiscated and are still with the Serious Crime Department for an investigation. He was working on a story involving a diamond company. A female journalist from another publication lost her phone to the Directorate of Intelligence Services (DIS). Apparently the country uses the Cellebrite system to hack phones,” she noted.

In 2021, an investigation by the Committee to Protect Journalists (CPJ) revealed that Authorities in Botswana are using Israeli phone-hacking technology to sweep the phones of journalists.

The CPJ report disclosed that a Mmegi political reporter, Tsaone Basimanebotlhe, said she surrendered her phone and password to the agents after they presented a warrant when they could not find her computer. CPJ said a senior officer then used technology sold by the Israel-based company Cellebrite to extract and analyze thousands of her messages, call logs, and emails, and her web browsing history, according to an affidavit from the police forensics laboratory. 

Part of the company’s mission statement on their website reads, Cellebrite technology helps convict bad actors and bring justice to victims of crimes, including child exploitation, exploitation, homicide and sexual assault, drug and human trafficking, fraud and financial crime.

According to an article published by The Guardian in 2021, the CEO of the messaging app Signal claimed Cellebrite products have often been linked to the persecution of imprisoned journalists and activists around the world and that less has been written about what their software actually does or how it works.

Bokhutlo-Mutapati says police confiscated a citizen journalist’s laptops and cellphones including passwords to access his devices in 2022 (Moeladilothoko) and Editors Forum had to write a statement condemning the repressive act.

Moeladilotlhoko News Boiler (MNB), Tshepo Sethibe was charged with spreading “alarming publications” after he published several posts about a missing child in Lobatse since the boy disappeared in March 2022.

The BEF Chairperson says it is unquestionable that although the country has improved tremendously from a state of fear and the opaqueness that characterized the previous administration, the potential for the current government to curtail freedom of the media which is still lurking around is demonstrated by the government’s reluctance to repeal some of the laws that could have a chilling effect on Freedom of the Press, and Freedom of Expression like the Sedition law for example which is still in the country’s statutes. 

Bathusi Brown, a Managing Partner at Brown and Company Attorneys says citizens, journalists and lawyers are under surveillance by the police, intelligence and other security agencies even though he cannot prove it. “The reality is that the above-mentioned people are under surveillance,” said Brown.

He noted that surveillance is necessary for the prevention of certain crimes but that it’s susceptible to abuse. “It is too general. It seems to give unfettered powers to law enforcement. It is likely going to contravene attorney-client privileges among others,” he added.

The State of Media Freedom in Southern Africa MISA report of 2023 says, with the proliferation of the use of technology surveillance the targeting of journalists increases. However, the nature and extent of surveillance targeted at journalists in Southern Africa is not well documented. The UN Special Rapporteur on Freedom of Expression and Opinion raised it as a concern across the world.

Last year, the government of Botswana came under heavy scrutiny as the Minister of Defence, Justice and Security, Kagiso Mmusi brought a Criminal Procedure and Evidence (Controlled Investigations) Bill of 2022 for debate in  parliament under a certificate of urgency explaining that fast-tracking the legislation was needed to adhere to the recommendations of the Financial Action Task Force (FATF), a global money laundering and terrorist financing watchdog. This was during a time when Botswana was greylisted by the European Union.

Some of the provisions in the bill ruffled the feathers of members of the civic community, media and the legal fraternity as they voiced their concerns. Clauses that would allow authorities to keep citizens under surveillance and conduct undercover operations without a warrant for up to 14 days were removed and provided for an establishment of a Controlled Investigations Coordination Committee to coordinate such investigations and also, “protect the interests of interception subjects and targets.” 

It has been over a year since the Bill was passed into law and it appears as if the oversight committee has still not been set up yet.  The committee is supposed to be chaired by a judge and populated by people with expertise in human rights, finance, law enforcement, ICT and other related fields. 

Brown says he is not aware of any oversight committee in existence, adding that normally the formulation of such is followed by an official announcement by the ministry. 

MISA Botswana Chairperson, Thomas Nkhoma revealed that the oversight committee has not been put to effect.. He noted that the intention of the Act was for media bodies such as MISA to play a role in its composition and operations. 

Nkhoma says MISA has been dormant for a while and that their key role is to resuscitate it and to start such engagements in the not so distant future.

A questionnaire was sent to the Ministry of Defence and Security to ask about the committee but the response was that the questions have been forwarded to the Ministry of Justice which is a newly formed Ministry. 

Bokhutlo-Mutapadi says that putting journalists under surveillance did not become a problem with the advent of the Criminal Procedure and Evidence controlled Investigations Act of 2022.  

“As the State of Media Freedom in Southern Africa MISA report for 2023 rightly points out Botswana is one of the countries in the region that has been categorically identified as having purchased surveillance technology,” said Bokhutlo-Mutapati.

The MISA report goes on to say police and intelligence have been known to routinely seize reporters’ equipment – including mobile phones, cameras and laptops without any legal basis nor a warrant and that the government also routinely uses digital forensics technology to spy on journalists. 

Brown says since the Act is still new, no cases that they know of have been brought before the high court or the court of appeal under the Act.

He however noted that the only recent case that could be pointed out after this enactment is the Atlholang Mujanji v The State which is a Court of Appeal matter. 

“In the matter, the accused facing murder charges sought an appeal to overturn his conviction, which was based primarily on the evidence provided by the state, of a confession contained in an audio recording. Law enforcement had liaised with the accused’s pastor to use their recording devices to extract a confession from the accused person. Even though the accused person did not raise issues of the constitutionality of the use of this form of surveillance, he did challenge the admissibility of the audio recording. The court held that the evidence was not properly admitted on the ground that the recording was made prior to the enactment of the Electronics Records (Evidence) Act, which provides for admissibility of audio recordings,” Brown explained.

Brown says that over and above the court’s findings, it can be said that the audio recording was made without the accused’s consent and at a moment where the accused was confiding in his pastor. He says the accused was exercising his freedom of expression and association and was divulging the information in private and in confidence, which rights were infringed by law enforcement.

Brown says if the matter was to be brought under the Criminal Procedure and Evidence (Controlled Investigations) Act, it would have been found that that audio recording was obtained  unlawfully.

Asked if the amendment and removal of some of the clauses from the bill was enough and if the law gives full protection to the rights and freedoms of people, Bokhutlo-Mutapati reiterated the statement that was released on this matter by the coalition of Media organizations that were led by the BEF which included the Press Council of Botswana, MISA Botswana, the Southern African Editors’ Forum (SAEF), the Media Institute of Southern Africa, the Campaign for Free Expression (CFE) and the WAN-Ifra Media Freedom Committee to say that, “ Although it is not perfect the media is prepared to live with the amended bill in its current form as part of a trade-off that citizens make in a democratic society to help the state fight modern-day crimes like financial terrorism and money-laundering.” 

Brown says the amendments and removal of some of the clauses to the Act was adequate because prior to the amendments made to the bill, it did not conform to the standards of international law. 

Further explaining that Botswana as a dualist state, which means that for it to be bound by international law treaties, it must domesticate and incorporate the international law into its statute, had to remove some of these clauses which were, in their nature infringing the rights to privacy and freedom of expression and association of its citizens, which rights are protected under international law. 

He says after the removal and amendment of the Bill, the Bill was in compliance with principle 41 of the Declaration of Principles on the Freedom of Expression and access to information in Africa, which is enough to ensure that the citizens’ rights are protected while combating crime and protecting public interest and national security.

Brown however says the law does not give full protection to the rights and freedoms of people. “As any other rights, human rights are not absolute. They are limited, provided that the limitations are contained in or done under the authority of the law, the limitation is legitimate and reasonably justifiable in a democratic society. There will also be a need to carry out a balancing exercise between two competing rights, he added.” 

MISA Botswana Chairperson says at the moment they feel confident that there is generally media freedom in Botswana and journalists in particular enjoy relative freedom in that of late there has not been any reports of harassment of media practitioners by any entity including government, politicians or security agencies. 

Nkhoma did however note that to ensure media freedom and the general respect for rights to privacy, expression and communication in this country there is a need for an Access to Information Act to enhance media freedom in Botswana. 

“We also need media friendly cyber and data protection laws especially for investigative journalists who sometimes have to publish certain information they dig out through their investigations or receive from whistleblowers. The latter also need protection through the Whistleblowers Act,” noted Nkhoma.

Mmapula Molapong is a journalist researching on digital surveillance with the support of the Media Policy & Democracy Project (MPDP), run by the University of Johannesburg, Department of Communication and Media.

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