PM case throws spotlight on phones privacy

KANANELO BOLOETSE

MASERU – An increasingly intriguing debate is developing in Lesotho over call records confidentiality. This is after police revealed publicly in January that Prime Minister Motsoahae Thabane’s cell phone was used to make a call to a person at the scene of the crime at the time of the assassination of his estranged wife Lipolelo Thabane in June 2017. Following the revelation, some people have become nervous about whether their call records are safe in the hands of telecommunications service providers and if their right to privacy still respected.

The right to privacy and family life is recognised and protected under the constitution. “Every person shall be entitled to respect for his private and family life and his home,” reads Section 11(1) of the Constitution. Call records can reveal so much about a person’s private life and some people can try to obtain such records for sinister purposes; either to sell the data to third parties or to conduct surveillance for personal reasons.

Fortunately, there are laws in place preventing law enforcement agencies or any persons from intercepting communications or seizing people’s call records. However, there are exceptions to the privacy requirement and under certain circumstances, any person’s call records could be perused. Section 44(1) of the Communications Act of 2012 states that “a person shall not engage in interception or tracing of communications operations or messages unless authorised by a court of competent jurisdiction”.

A person who contravenes this law commits an offence and is liable on conviction to a fine not exceeding M50 000 or to imprisonment for a term not exceeding five years or both.

Regulation 32(1)(c) of the Telecommunications Authority Regulations of 2001 prohibits disclosure of a customer’s call information by employees of the telecommunications service providers unless disclosure is required in connection with the investigation of a criminal offence or for the purpose of criminal proceedings.

The regulation states: “No person may intentionally or negligently, while engaged in the operation of public telecommunication system or the provision of a telecommunication service, disclose, to any person, information about a customer obtained in the course of performing his or her duty.”

These mean, provided they have a court order, law enforcement agencies have the legal authority to require any telecommunications service provider to intercept or disclose individual customer communications or messages.

Police spokesperson, Superintendent Mpiti Mopeli, on Monday refused to disclose to Public Eye how police obtained Thabane’s call data records.

Mpiti said he cannot say how they obtained the records because “it involves an ongoing investigation” and may affect the presentation of evidence against the suspects in the murder of former First Lady Lipolelo.

Speculation has been rife that Vodacom Lesotho handed over Thabane’s call information to police but the company on Wednesday declined to comment on this matter.

Public Eye did not find any law that makes it illegal for the telecommunications services provider to make it publicly known or even discuss the fact that they had delivered call records to the police.

This paper has, however, found that time after time, police legally compel both Vodacom and Econet Telecom Lesotho (ETL) to hand over hundreds of customer call records.

The call records play a vital role in criminal investigations and police use them to trace stolen mobile phones.

Public Eye also found some of the laws that could be used by the law enforcement agencies: police, Directorate on Corruption and Economic Offences (DCEO), National Security Service (NSS) and the Ombudsman, among others, to either intercept your communications or get hold of your communication content.

 

Prevention of Corruption and Economic Offences Act of 1999

The Prevention of Corruption and Economic Offences Act provides for the disclosure of information in connection with the investigation or prevention of corruption and economic offences.

Section 8 of the Act provides that the director of DCEO may by notice in writing require any person to furnish, notwithstanding the provisions of any other enactment to the contrary, all information in their possession relating to the affairs of any suspected person.

This means the DCEO director when investigation a corruption case, can summon either Econet or Vodacom to furnish call records relating to the affairs of any person suspected of corruption.

In 2014, the then Deputy Prime Minister Mothetjoa Metsing filed an application at Constitutional Court seeking an order declaring some sections of this law, including Section 8, unconstitutional.

Metsing contended that the disclosure of his bank statements was not permissible because such action violated his right to privacy.

While the court accepted that Metsing’s right to privacy was infringed when a bank handed over his banking information to the DCEO, it ruled that that was a justifiable infringement.

“It would be very difficult to investigate and prosecute corruption if the investigatory authority does not have access to records of persons who might be implicated in the investigation or who might give information relating to the investigation,” the court ruled.

Metsing’s application was dismissed but he took an appeal. In 2015, the Court of Appeal noted that DCEO legislation, although intrusive of personal privacy, was not uncommon.

The appeal court said where this kind of law of was enacted, it was generally directed at uncovering financial irregularities that are difficult to detect without access to the knowledge of insiders. Metsing’s appeal was dismissed.

 Ombudsman Act of 1996

Section 9(1)(e) of the Ombudsman Act 1996 provides that in the performance of his functions, the Ombudsman shall have the power “to summon and subpoena in writing any person to produce any records in the custody, possession or control of that person, which the Ombudsman may deem necessary in connection with any inquiry before him”.

And for such purpose, according to the law, the Ombudsman “shall have similar powers to those of a High Court Judge but subject to the same rules relating to immunity and privilege from disclosure as apply in High Court”.

 National Security Services Act of 1998

Section 26(2) of the NSS Act provides that: “The Minister may, on an application made by a member of or above the rank of Higher Intelligence Officer, issue a warrant authorizing the taking of such action in respect of any property specified in the warrant as the Minister thinks is necessary to be taken in order to obtain information which (a) is likely to be of substantial value in assisting national security services in discharging any of its function; and (b) cannot be reasonable obtained by any other means”.

 

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