Statement: R2K and PI calls for RICA reform!

Today, 04 June 2019, the Right2Know Campaign and Privacy International, represented by the Legal Resources Centre, will be joining amaBhungane’s RICA challenge in the Pretoria High Court as amici curiae (friends of the court).  

In April 2017, AmaBhungane filed an application in the North Gauteng High Court, challenging the constitutionality of the Regulation of Interception of Communication and Provision of Communication-Related Information Act or (RICA). This comes after it emerged that amaBhungane journalist Sam Sole’s communications were intercepted while he was reporting on the corruption investigation against former president, Jacob Zuma.

Sole’s case was not an isolated incident.  In July last year, R2K  launched a report on surveillance of journalists in South Africa, which highlighted growing evidence of systemic surveillance abuses in the country. R2K has long maintained that surveillance in South Africa affects all members of society, but especially whistleblowers and activists.  This was confirmed by the High-Level Review Panel report on the State Security Agency and related matters released earlier in March this year.  

Already in 2016, the United Nations Human Rights Committee issued a strong condemnation of South Africa’s surveillance capabilities and its regulatory framework, especially the RICA law. According to the Committee, South Africa’s communications surveillance capabilities were opaque, open to abuse and a major threat to human rights in South Africa. Not much has changed in the 3 years since that report. For this reason, we argue that RICA has been inadequate and the wholesale flouting of its provisions by the state security apparatus has constituted a serious breach of the State’s duty to protect citizens’ constitutional right to privacy.

Among our core arguments are:

• That people have a right to be notified when their communications have been intercepted so that they can take action when they believe their privacy has been unlawfully breached. Currently, RICA prevents such notification, unlike equivalent laws in other countries, which require a targeted person to be notified that they had been spied on after an appropriate lapse of time.

• That RICA’s requirement that telecommunication users’ metadata – information about when, where, how and with whom they communicate – be stored for years is a massive and systemic violation of the rights of all South Africans who use digital communication. In this case, the state has asserted that it has the power to mandate telecommunications providers to store metadata about South Africans’ phone calls, SMSes, emails, and internet activity for up to five years. This includes the location from which those communications were made and the subject lines of emails which often indicate the content of the message. 

• That mass surveillance is inherently unconstitutional and we demand an end to such practice. RICA does not regulate or make provision for mass surveillance, making this practice unlawful.

We will place comparative information before the court to prove that RICA falls far short of international best practice.

In summary, the gaps in the regulatory framework provided by RICA has allowed the violation of basic rights and it must be re-drafted, the oversight mechanisms strengthened and be brought in line with our Constitution. We believe the amaBhungane challenge represents a critical opportunity to protect millions of people’s right to privacy and to help bring an end to surveillance abuses.

Note to editor: See court papers here.

For more information please contact:

Thami Nkosi, Secrecy and Surveillance Organiser: 062 624 5992

Karabo Rajuli, Secrecy and Surveillance Focus Member: 082 365 6553

Ghalib Galant, R2K Dep National Coordinator: 084 959 1912