While Botswana has introduced judicial oversight after a new law was released earlier this year that allows for unwarranted surveillance, there is still cause for concern, writes Jonathan Rosen.


When the Botswana government tried to pass a new law earlier this year that would allow ruthless surveillance, local opposition was swift. Authorities eventually imposed judicial oversight, which local media groups considered successful, but the history of Botswana police searching for journalists’ devices and accessing their telecommunications information remains a cause for concern.

“We certainly do not welcome the law. We welcome the changes that have been made to it, ”Spencer Mogapi, chairman of the Botswana Editors’ Forum, said in a recent telephone interview with the Committee to Protect Journalists (CPJ).

We could rather be left without this law.

The original Bill on Criminal Procedure and Evidence (Controlled Investigations), which was presented in January and considered by the CPJ, offered law enforcement access to messages “in any way” without a warrant. This, among other problems with the proposed legislation, has provoked opposition from the regions a coalition of media groups led by the Botswana Editors Forum, local politicians, labor collectives and the CPJ.

Within days, the government amended the bill by introducing a committee chaired by a judge to oversee secret law enforcement operations and banning wireless interception, according to statements on coalition and media reports of the time.

“It was relentless pressure,” Magapi said after the amendments reviewed by the CPJ, and others in the coalition media also welcomed it. “There were people here that we called to come and see what was happening on earth, and I think it worked.”

The amended bill became law in late February, according to a copy of the government bulletin reviewed by the CPJ.

Intentions are still problematic

John Moretti, a clerk in the Botswana president’s office, told CPJ by phone that feedback, including from media groups, had been included in the amendments, but passed on additional questions to Bottlehael McGekgenen, permanent secretary of the Ministry of Defense, Justice and Security. CPJ calls to McGeggene and contact numbers listed on the ministry’s website went unanswered.

During a meeting in early March between Botswana officials and members of the South African Media Institute (MISA), the regional press freedom group, Defense, Justice and Security Minister Thomas Kagisa Mmusi said the government had taken public concerns into account.

Tabani Moyo, MISA’s regional director, told CPJ that it was nice to see the Botswana government listen, but even with the addition of judicial oversight the bill’s intentions were problematic and it did not properly protect whistleblowers and privacy rights.

“The government is already trying to monitor its citizens,” Moyo said. “They come up with a law that makes it legitimate to justify [their] appetite to watch ”.

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CPJ called a mobile phone owned by Mmusi, but no one answered.

The CPJ contacted President’s spokesman Bathalefi Leagajanga by phone and in a messaging program, who passed the questions to government spokesman John-Thomas Dipov. CPJ asked Dipowe over the phone and a news exchange program about the privacy of journalists and reports from the Toronto-based Citizen Lab research group that Botswana’s intelligence service had acquired the technology from Surveillance Circles. Dipove said he would call back twice, but did not.

Long-standing laws requiring court orders to monitor investigations do not prevent Botswana police from extracting private content from journalists’ devices or accessing information from telecommunications.

Fees for Facebook posts

Earlier, police gained access to Mogapi’s “subscriber report” through its mobile provider Orange Botswana, a subsidiary of the French telecommunications company, and provided him with a printout detailing his exchanges with the now-former a spokesman for the political opposition under investigation. Police have also asked Orange for an “activity log” for a mobile account owned by local editor Oratile Dikologang, who continues to face charges for Facebook posts, and a forensic review of his phone, accessing thousands of messages and files on his device. None of the journalists knew that the police had contacted Orange until this was revealed in court documents from 2020, which the CPJ reviewed, citing court rulings for their telecommunications information.

Since then, the CPJ has identified at least four other journalists named in the 2020 documents, details of which were obtained by police at another local mobile company, Mascom Wireless. Mmegi newspaper reporter Caone Basimonebotle, Sunday standard Kagkgale newspaper reporter Job Makati, Parrot co-founder of the online news platform Coquetso Masvetti and Oarabile Sonny Sente, a freelancer who left the profession. The documents say that Mascom Wireless confirms to the police the connection between the journalists and their phone numbers, as well as their active accounts. The documents also noted that this telecommunications information was requested in accordance with the court ruling, but it was not clear whether the police knew they were investigating the journalists. Like Magapi, all journalists told the CPJ that they had been in contact with the same former political spokesman, Justice Motlhabani.

Botswana police spokesman Difeka Motube had previously told the CPJ that he could not comment on the case in which officers gained access to journalists’ telecommunications information because it was in court. He also did not respond to a CPJ request for comment on police investigations conducted through Mascom Wireless.

Controlled

Masvetti said he was “surprised” when CPJ told him that Mascom Wireless had provided police with information about his mobile account, and was concerned about whether sources would continue to trust him. In a recent interview, he told CPJ that his close relatives and friends still suspect that his phone is being monitored and they only talk on the phone using encrypted programs. Masveti expressed mixed feelings about the new law on controlled investigations, but praised how the government amended after the public outcry.

READ | Jane Duncan: Unfinished business of correcting state espionage and protecting journalists

Mascom Wireless confirmed receiving CPJ questions in May 2021 and February 2022, but gave no further answer. Orange Botswana told the CPJ in April 2021 that they were unable to provide details of the court’s rulings and did not answer questions in early February about the implications of the proposed law.

“We always knew there was an interception, but we were reassured that they were [security agencies] will do so by court order, not just on their own, ”Magapi told CPJ, stressing the value of courts and telecommunications companies as a buffer against overly diligent security agents.

They hate all this supervision.

Botswana’s law on intelligence and security services requires law enforcement to obtain a court order to conduct a “search or interception of mail, e-mail, computer or telephone”. Similarly, investigators can search a computer or phone and request information from telecommunications companies about their subscribers under the cybercrime law, but this requires a court order.

It is difficult to use the phone anonymously in Botswana: SIM card registration has been required since 2009, according to the local telecommunications regulator, which has troubled journalists for years. Orange Botswana, for example, requires customers to present a national identity card or passport to purchase a SIM card.

Prison time

The new law on controlled investigations complements these rules, including requiring service providers to “install hardware and software tools and devices that allow interception of communications at any time.” Local media have called these wiretapping duties a “new job” for telecommunications, and directors of companies that do not comply with them face imprisonment. Under the law, anyone who refuses to give the authorities access to encrypted information may also be imprisoned.

When the law was proposed in January, Minister Mmusi said it was urgently conditioned by standards set by the Financial Action Task Force (FATF), an intergovernmental body mandated to combat money laundering and terrorist financing in the world. to local messages and government posts on social media. Responding to e-mails, FATF media relations manager Duncan Crawford told CPJ that the body could not comment on the legislation outside of official estimates.

“We know it’s dangerous,” Magapi said of the amended bill. “We will be very vigilant in the future.”

– Jonathan Rosen is a senior researcher in Africa at CPJ.

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