‘Spy Bill’ violates the Constitution, says Ombudsman Walters

THE controversial ‘spy’ clause in the Communications Bill in its current form does not conform with the Bill of Rights enshrined in Chapter Three of the Namibian Constitution, Ombudsman John Walters told a parliamentary hearing in Windhoek last week.

‘Chapter Three protects the fundamental rights and freedoms of the people in Namibia, including the right to privacy, and these rights represent the minimum standards of justice in this country,’ Walters told the public hearing on the bill, organised by the National Council. State interference in the privacy of citizens is permissible only under exceptional circumstances like threats to national security, but on reasonable grounds, Walters said.The Communications Bill, as it stands, does not define clearly when communications would be intercepted and for how long.’TOO MUCH POWER”My understanding of Part 6 of the Bill (providing for interception) is that law enforcement agencies will be entirely free to decide whether circumstances will justify recourse and being allowed unlimited discretion in determining the scope and duration of the surveillance. If Part 6 of the Bill is left unamended, it will result in our courts being called upon to decide whether the risk of warrantless surveillance may be imposed on the Namibian people. This will no longer strike a reasonable balance between the citizen’s right to privacy and the right of the State to interfere in that right,’ he elaborated.’In my humble view, Part 6 of the Bill does not conform to the minimum standards of justice articulated in Chapter Three of the Constitution.’Norman Tjombe, Director of the Legal Assistance Centre (LAC), argued along similar lines.He called for a clear definition of the length of interception of people’s communication, what exactly would be intercepted and how long it would be stored before being deleted. In its present form the interception clauses of part 6 of the Bill would not stand up to a constitutional challenge in a court, Tjombe told the committee, since the stipulations of the bill are ‘too wide’, giving Government officials ‘too much power with regard to interception’. ‘It also a known fact that once a bill is passed by Parliament, regulations are worked out and these are not seen by Parliament. The devil, however, lies in the detail of regulations added to a new law once passed,’ Tjombe said. It would be better if lawmakers could oversee regulations, especially those still to be worked out for the Communications Bill.The Director of the Institute for Public Policy Research (IPPR), Graham Hopwood, said the Information and Communications Minister had too much power in determining the appointment of board members of the envisaged Communications Regulatory Authority of Namibia (CRAN) and the functions of the authority. ‘The bill also mixes powers of regulators and policymakers. The Minister should provide policy guidelines and should not regulate,’ Hopwood said on Wednesday. For instance, the bill gives the ICT Minister the power to determine the tariffs that communication operators may charge customers. On the interception clauses of Part 6 of the Bill, Hopwood said: ‘This part does not belong in the Communications Bill but should rather be added to the existing Namibia Central Intelligence Service (NCIS) Act of 1997.’DONE DEAL?A representative of the organisation Citizens for an Accountable and Transparent Society (CATS), Carola Engelbrecht, alerted the Parliamentary committee to an advertisement that appeared in the Government newspaper New Era on August 14 2009. According to the advertisement, CRAN is looking for a Chief Executive Officer.’The advertisement already refers to the Communications Act, while we are sitting here in a pubic hearing on the bill, this draft legislation has not even been enacted yet and CRAN has not even been established. Surely this advertisement flies in the face of the lawmaking procedures,’ Engelbrecht said.The National Council will debate the bill later this month and might recommend amendments before referring it back to the National Assembly.brigitte@namibian.com.na