Regulating and Legislating Surveillance

Abstract

This chapter examines the laws and policies governing surveillance practices in selected southern African countries. It critically explores various forms of permissible surveillance practices and cultures enshrined in national constitutions and legislative frameworks. We also foreground the controversies of South Africa’s surveillance laws that have spilled into the courts. We trace this controversy from the promulgation of the legislation, the exclusion of meaningful participation for interested parties including CSOs and the ultimate litigation. We then demonstrate the inadequacies of these laws in safeguarding human rights, like the right to privacy and in providing adequate protection for post targets of surveillance post-facto. In this chapter, we critically analyse the extent to which existing legislation, safeguards and oversight mechanisms of selected southern African countries measure up to international best practices such as the Necessary and Proportionate Principles. We also look at how existing legislation and frameworks compare against international frameworks such as the International Principles on the Application of Human Rights to Communications Surveillance, the UN Draft Instrument on Government-led Surveillance and Privacy and the African Commission Declaration of Principles of Freedom of Expression and Access to Information in Africa.