‘Quality of Namibian democracy’ threatened

Just after 09h00 on 3 May the Namibian Presidency issued a statement to mark the country’s retaking of first position on the African continent on the 2023 World Press Freedom Index.

Pride dripped from a World Press Freedom Day (WPFD) statement, saying: “The Presidency is delighted with Namibia reclaiming the number-one position in press freedom in Africa.”

The State House release gushed that Namibians “should be assured that president Geingob will guarantee freedom of the fourth estate”, and that this was because of “the fact that the strength of Namibia in press freedom is a function of the commitment of president Geingob and the government he leads to upholding the values of the Constitution of the Republic of Namibia”.

However, the self-congratulatory and celebratory tone of the statement masks the fact that as the Geingob Presidency winds down it is overseeing the establishment of systems that could undermine both press freedom and “the quality of Namibian democracy” over years to come.

This is because it is under the Geingob Presidency that state mass surveillance powers are being greatly enhanced and privacy being threatened with the implementation of clearly problematic regulatory mechanisms and emergent law proposals.

VIOLATIONS LOADING

Chief among these new regulatory systems is the implementation of regulations gazetted in March 2021 under Part 6 of the Communications Act of 2009.

These regulations make provision for mandatory SIM card registration and data retention measures that come into full effect as from 1 January 2024.

Of special concern is the data retention regime, which would force telecommunications and internet service providers to collect all communications data of customers and subscribers and to store such data for five years.

In response to public and media concerns, the Communications Regulatory Authority of Namibia (Cran) has come out stating that telecommunications and internet service providers will only be collecting and storing metadata – meaning information such as when, how long and with whom someone communicated digitally, and not what was actually communicated.

However, an unpublished legal analysis from mid-2022 by South Africa based ALT Advisory of the data retention scheme found that “in the reality of modern digital communications, there is often no clear technical distinction between ‘content’ and ‘metadata’ …”.

The analysis continues that it “is now widely established that communications metadata is extremely sensitive and requires similar levels of protection against interference as the content of communications”.

This position already became clear in 2014 when the United Nations high commissioner for human rights at the time found that the “aggregation of information commonly referred to as ‘metadata’ may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication”.

Similarly, in 2018, the European Court of Human Rights, in a case concerning metadata retention in the United Kingdom, found that “[i]n bulk, the degree of intrusion is magnified . . . “.

Compounding the threat posed by this emergent regulatory system are problematic communications interception proposals in a draft cybercrime bill from 2020 and weak data protections proposed in a draft data protection bill from 2022.

In short, ALT Advisory’s analysis of the interception sections of the cybercrime bill found that the “grounds for exercising intrusive powers should be much more clearly and narrowly defined and should not be subject to the nebulous (vague) concept of the ‘national interest’.”

It adds: “Rather, these should be restricted to a necessity for the investigations of serious offences, and where necessary to prevent serious imminent danger or death.”

An analysis also done by ALT Advisory for the Action Coalition in November last year found that protections for data subjects had been severely watered down from the initial draft that appeared in 2020.

The analysis found that: “Dissimilar to the 2020 version of the bill, the [2022] bill does not clearly and cogently identify the rights of data subjects, and removes Part III of the 2020 version of the bill in its entirety.”

The ‘Part III’ being referred to in the 2020 version of the bill dealt extensively with the rights of data subjects.

At the same time, the bill also does not recognise and exempt journalists as valid data processors, and in this regard the analysis calls for the insertion: “The act does not apply to the processing of personal data solely for the purpose of journalistic, literary, or artistic expression to the extent that such an exclusion is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression, including press freedom.”

DAMPENING EFFECT

Taken together these almost established and proposed regulatory measures could potentially severely undermine journalists’ ability to keep their sources secret, which is an integral aspect of media freedom.

This has a bearing on whistleblower protection too, as well as the confidentiality of lawyer-client engagements.
The same goes for civil society researchers and their sources of information.

The SIM card registration and data retention regulations, as well as what appears to be coming down the pipeline in terms of cybercrime law and data protection law, could acutely limit the ability of the Institute for Public Policy Research to offer its sources confidentiality as well.

The ALT Advisory analysis from mid-2022 concludes in this regard:

“Considering the significant gaps and challenges in Namibia’s framework for communications surveillance, a full reform process is recommended to provide better protections and safeguards for communications and communication data, drawing on developing standards and best practice internationally and in the region.”

In the end, while the Geingob Presidency has expressed commitment to “upholding the values of the Constitution of the Republic of Namibia” it is unclear what comes next, and whether what comes next is interested in “shaping a future of rights”.

• Frederico Links is a Namibian journalist and researcher. This article was commissioned by the Media Policy and Democracy Project, an initiative of the University of Johannesburg’s department of journalism, film and TV, and Unisa’s department of communication science.