Is An Amendment to the Police Act Warranted?

JB Tjivikua

The debate in parliament about empowering Namibia’s police chief to share personal information with foreign non-law enforcement entities is a matter of public interest. 

It is related to proposed amendments to the country’s Police Act (1990), which includes the powers of the police inspector general.

This is aimed at compliance with various United Nations (UN) conventions on Anti-Money Laundering and Combating the Financing of Terrorism and Proliferation, and a mandatory UN Security Council Resolution, issued under the UN Charter. 

In September 2022, Namibia was found deficient in a number of areas and was asked to take remedial action.

Amendments to the Police Act are therefore aimed at giving statutory power to the inspector general to share information informally with foreign non-counterparts (non-police agencies).

This involves providing data and information related to combating the financing of terrorism, and money laundering activities by individual targeted subjects.

Information sharing is a key part of international cooperation to protect countries’ strategic interests.

COOPERATION

Strong and effective cooperation with foreign counterparts is a vital component for curbing transnational organised crimes and promoting global peace.

Therefore, strategic government institutions such as the national police would recognise the need to share information with foreign partners, including our allies, as a critical part of its information-sharing strategy.   

This often requires exchanging information on known suspects, criminals and terrorists, for example.

It can also include classified, sensitive diplomatic, law enforcement, and homeland security information.

In addition, information about suspected financial transactions, for example, might yield information on criminal groups or individuals linked to organised criminal groups or terrorist organisations, or that may be linked to a specific potential threat.

Thus, sharing information with foreign non-law enforcement partners is essential and should, in principle, be reciprocal in that such entities should share similar information with Namibia. 

FORMALITIES

Special considerations arise in sharing classified information with foreign non-law enforcement partners.

It should, therefore, continue to occur in a relatively formal context to account for the need to properly secure and limit disclosure of shared information.

Indeed, decisions on whether to share classified information are extraordinarily sensitive and have to be made with utmost care. 

Given the nature of the information, we must, first and foremost, ensure there is appropriate security and confidentiality.

This serves as a record of agreement for both parties.

As a general rule, we must also strive to ensure that safeguarding and handling restrictions of information are calibrated to maximise the quantity and quality of information shared with us.

All in all, due authorisation must be obtained from the highest authority of government, for instance if these entities are non-law enforcement authorities. 

There is also the basic requirement that shared information be appropriately safeguarded and protected from public disclosure.

Governments and foreign partners may, at times, mutually agree to particular restrictions on the dissemination and use of such information.

While it is preferable to avoid restrictions, it may be necessary in certain cases.

How we proceed in such situations will depend on the circumstances and our need to ensure the information is used for the intended purpose only.

As such, it is important we develop policies and directives regulating our practices in an age where sensitive and personal information can spread like wildfire.

It is important that our officials ensure that sharing arrangements do not unintentionally result in compromising personal and national security details.  

DATA PROTECTION 

Namibia has not yet enacted comprehensive data privacy legislation.

However, various sector-specific laws are in place to protect client information, including in the legal and banking sectors.

First and foremost, data protection laws must be in place to ensure everyone’s data is protected and used properly and fairly, including biometric data. 

Compliance with international personal data protection legislation and standards is imperative.

Non-compliance could impede the state from transferring personal data across national borders, thereby hindering the intended objective.
As such, there has to be adequate compliance with the general data protection legislation. 
Personal data protection laws prevent the transfer of personal data to another country unless certain conditions are met. 

IN THE LOOP

Interpol’s global police web-based communication system is used to exchange information for international cooperation in combating crime.
Also, the Southern African Regional Police Chiefs Cooperation Organisation, a SADC organ, is principally responsible for preventing and combating cross-border and transnational organised crime.

This and other such arrangements are internationally accepted norms in exchanging information, including diplomatic contact, which has worked perfectly to date. 

In short, Namibia does not lack effective communication systems with the rest of the world that would necessitate pursuing additional avenues.

However, we must be aware of the theory of power in international relations, seen as a set of attributes which powerful agencies and their governments can use to influence others to obtain information, such as on economic aspects, to gain political control in certain areas or countries. 

The government must ensure the efficiency and effectiveness of existing avenues that facilitate effective communication and compliance with UN conventions before considering the need to amend the Police Act.

  • Major general JB Tjivikua served in the Namibian Police for 27 years

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