Advocacy Release: Concourt to hear amaBhungane’s Rica challenge

On Tuesday 25 February, the Constitutional Court will hear argument in amaBhungane’s landmark challenge against South Africa’s surveillance law, Rica.

The Constitutional Court must decide whether to uphold the high court’s September 2019 ruling that found in amaBhungane’s favour and declared several provisions of Rica to be unconstitutional.

As we unpack below, the high court’s ruling was a major victory against the abuse of the state’s surveillance capacity – Judge Roland Sutherland ordered several immediate changes to how Rica surveillance operations must be conducted going forward, and flagged a number of key flaws that must be fixed through a parliamentary process in the next two years.

The Constitutional Court will also hear counter-argument from two entities whose spying powers were curbed by the high court’s ruling: the police and the State Security Agency (SSA).

The high court case
AmaBhungane launched its challenge to Rica – the Regulation of Interception of Communications and Provision of Communication Related Information Act – in 2017 after learning that state security operatives had listened in on the phone communication of Sam Sole, one of our managing partners.

This followed a wider pattern of evidence that state spies routinely snoop on journalists, among many others. The information we secured about Sam’s spying served as scaffolding for a long overdue challenge to the reckless spying that Rica had enabled.

The September 2019 ruling by Judge Sutherland (available here) was a victory for journalists’ right to communicate securely with their sources, and against the politicised abuse of the state’s surveillance capacity in general.

• (Read Sam’s analysis of the judgment here.)

Most notably, Sutherland struck down Rica’s system of total secrecy that prohibits people whose communications have been targeted for surveillance from ever being notified of it, even long after an investigation has been concluded.

The high court’s ruling would require authorities to notify those they have spied on within 90 days, unless a judge can be persuaded to postpone such notification to protect an ongoing investigation.

Secondly, he declared the SSA’s “bulk interception” activities to be unlawful and invalid. This would end the agency’s practice – which it finally acknowledged in this court case – of tapping into communication networks to collect vast amounts of sensitive digital data from untold numbers of unsuspecting people.

As the high court found, this untargeted “dragnet” surveillance has occurred with no legal mandate.

Judge Sutherland’s other orders included boosting the independence of the judge who oversees Rica interceptions, by providing that they should be appointed by the chief justice instead of the executive.

Among the flaws he left to Parliament to fix was the need to add more checks and balances in the process of deciding whether a person should be targeted for interception, and to add safeguards for how officials should handle, store or dispose of any sensitive communication that has been intercepted.

Now to the Constitutional Court
All this comes before the Constitutional Court on Tuesday. The two agencies most accused of abusing their surveillance powers – the police and the SSA – are opposing the high court’s ruling: in the police’s case, they wish only to overturn the ruling on surveillance notification; the SSA has asked the Constitutional Court to overturn the entire thing.

In the high court, the police argued that post-surveillance notification would be fatal to any crime-fighting efforts – even though such notification is a feature of many countries’ surveillance laws, and would by definition only apply when an investigation is concluded or at a non-sensitive stage.

Having failed to persuade the high court, the police minister has doubled down for the constitutional court, declaring in his appeal that “the very purpose of the RICA [combatting crime] can only be achieved if there is a total ban on notification”.

The SSA on the other hand has sought to convince the Constitutional Court to throw out the entire judgment. In a woefully late filing, the SSA declares that every aspect of the high court’s findings are deficient and should be set aside.

Friends of the court
The court will also hear from parties who have been admitted as friends of the court to make independent submissions. The first submission is made jointly by the Right2Know Campaign and Privacy International, and the second is by Media Monitoring Africa.

What is at stake
We do not deny that the state may at times be required to intercept a person’s communication. However, what we have seen in South Africa – mirrored across the globe – is that this power has routinely been abused to target people whose work threatens the interests of corrupt individuals and institutions.

In South Africa, we believe the Rica law has helped enable such abuses. The lack of safeguards in Rica have helped corruption and politicisation to thrive in our security agencies, and have turned the state’s security powers against journalists, whistleblowers, and other perceived troublemakers.

Our hearing on 25 February marks the next step in a long-overdue process to roll back the state’s unchecked powers to spy, and the corrosive effect this has on the constitutional right to privacy, and freedom of expression.

• Download our court papers, as well as those of the other parties, here.