PI’s response on proposed draft RICA Bill

On 6th October 2023, we submitted our comments on the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill (the Rica Bill), published in Government Gazette 49189, August 25th, 2023, in response to a call for comments issued by the Portfolio Committee on Justice and Correctional Services – a committee of the Parliament of South Africa responsible for overseeing responsible the Department of Justice and Constitutional Development.
In our submission, we suggested amendments pertaining to several crucial issues where we think the proposed drafts fall short of international human rights standards. In particular:

1. Post-surveillance notification requirements: There are concerns about the broad exception of "potential national security risk" in Section 25A (2) of the Rica Amendment. It is suggested that this exception be more precisely defined to prevent arbitrary exceptions. Furthermore, we recommend incorporating a maximum duration for notification delays within the law to prevent indefinite postponements. Additionally, there is a proposal to introduce a well-defined procedure to guide individuals in effectively addressing grievances arising from surveillance.
2. Enhancing the independence and accountability of designated judges: The importance of preserving the independence and integrity of designated judges in surveillance decisions is stressed. To achieve this, the recommendation is to implement a joint appointment process involving the Minister of Justice and the Chief Justice. This process is seen as a means to emphasize mutual accountability. Furthermore, we made a suggestion to consider a panel of judges to distribute the workload, ensuring that decisions are made in a timely and impartial manner.
3. Closing the Section 205 loophole: An issue highlighted is the need to address the Section 205 loophole, which permits access to sensitive communication data without adequate oversight. To rectify this, we emphasized that measures should be incorporated into the Rica Bill framework to eliminate such loopholes, thereby ensuring robust safeguards.
4. Enhancing safeguards for journalists, lawyers, and civil society: We raised concerns about the need for additional safeguards to protect the rights and confidentiality of journalists, lawyers, and civil society organizations. The omission of a critical clause from the Bill is highlighted, with an emphasis on the importance of reinstating it. Additionally, there is an argument for extending enhanced protections to civil society organizations to align them with the safeguards enjoyed by journalists and lawyers.
5. Addressing the issue of ex-parte decision-making in surveillance: The inadequacy of having only a review judge in the context of ex-parte decision-making is discussed. Advocates propose the introduction of public defenders to represent the interests of individuals subject to surveillance as a means to enhance fairness and transparency in the process. We emphasize that relying solely on confidential evidence without the opposing side undermines oversight and the fundamental principle of audi alteram partem.

You can find a comprehensive explanation of our concerns in the full document attached here.