Spy clause short on detail

NAMIBIA’S controversial Communications Bill requires more precise definitions when it comes to interception activities in special circumstances, a law professor told a public hearing on the draft law yesterday.

The Bill provides for two types of interception – communications like e-mail, phone, fax and Internet with a warrant; and interception without a warrant in a matter of urgency in the interest of national security.The second scenario requires more clarity, Professor Nico Horn of the University of Namibia (Unam) told National Council members, who yesterday started a series of public hearings on the Bill.Clause 70 of the Bill allows the National Central Intelligence Service (NCIS) to conduct interceptions, albeit with a warrant, from a High Court judge. The Bill was passed in the National Assembly amidst controversy as opposition MPs walked out after their request to change the wording ‘may issue a warrant’ to ‘shall issue’ was refused by the Swapo majority. According to Horn, the urgent and exceptional circumstances under which the NCIS would be able to intercept communications without a warrant from a judge are not detailed in the current form of the Bill. Horn proposed an affidavit from a top civil servant like a permanent secretary or a top Police or defence officer to motivate the urgency of the matter.’What should also be detailed in the Bill is when an interception has to be stopped in such urgent and exceptional circumstances,’ Horn said.The National Society for Human Rights (NSHR) submitted that the Bill does not mention and thus acknowledge the Namibian Constitution as the supreme law of the country. A sentence or two about this should be included, said NSHR Executive Director Phil ya Nangoloh. He referred to Article 13 of the Constitution, which stipulates that ‘no person shall be subject to interference with the privacy of their homes, correspondence or communications’ except in accordance with law and if necessitated due to national security. ‘We also would like to see an addition in the Bill that defines and explains the term ‘interception’ and what is all going to be done by way of interception,’ ya Nangoloh recommended. He further said the independence of the regulatory authority and its board members for the communications sector should also be defined and spelt out. He proposed the following paragraph: ‘The regulatory authority is independent, and subject only to the Namibian Constitution and the law, and must be impartial and must perform its functions and powers without fear, favour or prejudice, as well as without any political or commercial interference from any quarter’.