While Botswana has introduced judicial oversight after a new law was published earlier this year which allows warantless surveillance, there is still cause for concern, writes Jonathan Rozen.
When Botswana's government sought to pass a new law early this year that would have allowed for warrantless surveillance, local opposition was swift. Authorities eventually introduced judicial oversight, which local media groups considered a success, but the Botswana police's history of searching journalists' devices and accessing their telecom information remains a cause for concern.
"We do not, of course, welcome the law. We welcome the changes that were made to it," Spencer Mogapi, the chairperson of the Botswana Editors Forum, told the Committee to Protect Journalists (CPJ) in a recent phone interview.
The original Criminal Procedure and Evidence (Controlled Investigations) Bill, which was tabled in January and reviewed by CPJ, offered law enforcement access to communications by "any means" without a warrant. This, among other concerns with the proposed legislation, rallied opposition from a regional coalition of media groups led by the Botswana Editors Forum, local politicians, labour groups, and CPJ.
Within days, the government amended the bill, introducing a judge-led committee to oversee covert law enforcement operations and prohibiting warrantless interception, according to statements by the coalition and media reports from the time.
"It was relentless pressure," Mogapi said following the amendments, which CPJ reviewed and others in the media coalition also welcomed. "There were people here who we had called to come and see what was unfolding on the ground and I think that worked."
The amended bill became law in late February, according to a copy of the government gazette reviewed by CPJ.
Intentions still problematic
John Moreti, a clerk with the cabinet of Botswana's presidency, told CPJ by phone that feedback, including from media groups, had been incorporated into the amendments, but referred further questions to Botlhale Makgekgenene, a permanent secretary with the Ministry of Defence, Justice and Security. CPJ's calls to Makgekgenene and contact numbers listed on the ministry's website rang unanswered.
During a meeting in early March between Botswana officials and members of the Media Institute of Southern Africa (MISA), a regional press freedom group, Minister of Defence, Justice and Security Thomas Kagiso Mmusi said the government had incorporated public concerns.
Tabani Moyo, MISA's regional director, told CPJ that it was good to see the Botswana government listening, but even with the addition of judicial oversight, the bill's intentions were problematic and it did not adequately protect whistleblowers and privacy rights.
"The government is already keen on snooping on its citizens," Moyo said. "They are coming up with a law that makes it legal, to justify [their] appetite to surveil."
CPJ called a cellphone belonging to Mmusi, but no one answered.
CPJ reached by phone and messaging app presidential press secretary Batlhalefi Leagajang, who referred questions to government spokesperson John-Thomas Dipowe. CPJ asked Dipowe via phone and messaging app about journalists' privacy concerns and reporting by the Toronto-based Citizen Lab research group that Botswana's intelligence agency had acquired technology from the surveillance company Circles. Dipowe said he would call back on two occasions, but did not.
Long-standing laws requiring court orders for surveillance during investigations have not prevented Botswana police from extracting private content from journalists' devices or accessing information from telecoms.
Charges over Facebook posts
Police previously accessed a "subscriber report" on Mogapi through his mobile provider, Orange Botswana, a subsidiary of the French telecom, and presented him with a printout detailing his exchanges with a now former political opposition spokesperson under criminal investigation. Police also asked Orange for an "activity log" for a mobile account owned by local editor Oratile Dikologang, who continues to face charges over Facebook posts, and forensically searched his phone, accessing thousands of messages and files on his device. Neither of the journalists knew police had contacted Orange until it was revealed in court filings from 2020, which CPJ reviewed, referencing court orders for their telecom information.
CPJ has since identified at least four other journalists named in those 2020 filings whose details were obtained by police from another local mobile company, Mascom Wireless — Mmegi newspaper reporter Tsaone Basimanebotlhe, Sunday Standard newspaper reporter Kgakgale Job Makati, The Parrot online news platform co-founder Koketso Moswetsi, and Oarabile Sonny Sente, a freelancer who has left the profession. The documents said Mascom Wireless confirmed to police connections between the journalists and their phone numbers and that their accounts were active. The documents also noted that this telecom information was requested under court orders, but it was not clear whether the police were aware they were investigating journalists. Like Mogapi, all the journalists told CPJ they had been in touch with the same former political spokesperson, Justice Motlhabani.
Botswana police spokesperson Dipheko Motube previously told CPJ that he could not comment on the case for which officers accessed the journalists' telecom information because it was before the court. He also did not respond to CPJ's request for comment on police investigations conducted via Mascom Wireless.
Moswetsi said he was "astonished" when CPJ told him Mascom Wireless had given information about his mobile account to police and worried about whether sources would continue to trust him. In a recent interview he told CPJ that his close family and friends continue to suspect his phone is being monitored and they only speak over the phone using encrypted applications. Moswetsi expressed mixed feelings about the new controlled investigations law, but appreciated how the government made amendments following the public outcry.
Mascom Wireless acknowledged receipt of CPJ's questions in May 2021 and February 2022 but did not give any further response. Orange Botswana told CPJ in April 2021 that they were not able to provide details about court orders, and did not respond to questions in early February about the proposed law's implications.
"We have always known there was interception happening, but we had some solace that they [security agencies] will do it with the court ruling, not just on their own," Mogapi told CPJ, emphasizing the value of courts and telecom companies as buffers against overzealous security agents.
Botswana's Intelligence and Security Services Act requires law enforcement to acquire a court order to conduct "searches or interception of postal mail, electronic mail, computer or telephonic communications." Similarly, investigators can search a computer or phone and request information from telecom companies about their subscribers under the cybercrime law, but they need a judicial order.
It's difficult to use a phone anonymously in Botswana: SIM card registration has been required since 2009, according to the local telecommunications regulator – something journalists have been concerned about for years. Orange Botswana, for example, requires customers to produce a national ID or passport to purchase a SIM card.
The new controlled investigations law adds to these regulations, including by mandating that service providers "install hardware and software facilities and devices which enable the interception of communications at all times." Local media called these wiretapping responsibilities a "new job" for telecoms, and company directors that do not comply could face jail time. Anyone who declines to provide authorities access to encrypted information could also face jail time, according to the law.
When the law was proposed in January, Minister Mmusi said it was driven as a matter of urgency by standards set by the Financial Action Task Force (FATF), an inter-governmental body with a mandate to combat global money laundering and terrorist financing, according to local reports and government social media posts. In response to emailed questions, FATF media relations manager Duncan Crawford told CPJ that the body could not comment on legislation outside of official assessments.
"We know it's not foolproof," Mogapi said of the amended bill. "We will be very vigilant going forward."
- Jonathan Rozen is a Senior Africa Researcher at CPJ.
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