Durban: The Council for the Advancement of the South African Constitution (Casac) has urged Parliament to ensure that the protections contained in the RICA amendment Bill remain when it is reviewed by the National Assembly.
President Cyril Ramaphosa has sent the Regulation of Interception of Communications and Provision of Communication-related Information Amendment (RICA) Bill back to Parliament for review.
The new RICA Bill follows a 2021 Constitutional Court judgment that ruled that RICA is unconstitutional as it fails to provide sufficient safeguards to protect the right to privacy, including with regard to the surveillance of journalists and lawyers.
The Presidency yesterday said that Ramaphosa is concerned that a number of constitutional matters in the Bill passed by Parliament, “require reconsideration so that this important statute achieves its intended purpose without the risk of being set aside by the courts”.
“In the President’s view, the Bill remains unconstitutional insofar as decisions in terms of section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified of the surveillance.”
The amendments to the Bill give greater independence to RICA Judges who approve of surveillance warrants by changing how judges are appointed, establishing acceptable procedures to ensure interception of communications is done lawfully, and creating methods for handling data.
Casac’s executive secretary Lawson Naidoo said the Constitutional Court had implemented protections that it had found were necessary in its 2021 judgment.
“With regard to surveillance, those protections are critical.
“If the president has concerns as to whether the amendment covers the issues determined by the Constitutional Court, then he has a right to send it for review,” Naidoo said.
Ramaphosa’s spokesperson Vincent Magwenya said according to the Constitution, the president must either assent to and sign a Bill referred to him or her by the National Assembly or, if he or she has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.
“The president also believes the legislation is deficient insofar as no review is possible of a decision in terms of section 25A(2)(b) to indefinitely suspend postsurveillance notification obligations.
“The president also wishes to see the legislation provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained in the interests of one side or party only.”
William Bird, director of Media Monitoring Africa, said he believed the amendments have not met with adequate support and there may be sufficient concerns to result in Ramaphosa sending it back to parliament.
“We saw with the SABC Bill how Parliament was upset that it had been withdrawn, when in reality they should have sent it back as it was plainly unconstitutional.”
Minister of Communications Solly Malatsi withdrew the bill, saying it did not adequately address the most important element regarding the SABC’s sustainability, which is a credible funding model that will steer the public broadcaster to success.
“In the current instance with the RICA amendment it seems we may be dealing with yet another failure by parliament to act in the public interest and instead act in the interest of the party they serve,” Bird said.
Kgothatso Mampa, chair of the legal advocacy sub committee at the SOS Support Public Broadcasting Coalition, said they championed and promoted the well being of journalists.
“Now more than ever journalists seem to be in the spotlight or centre of harassment, other online harms and disinformation campaigns.
“We will take any protection for journalists from a legislative point of view but this is democracy at play and we are happy to see that the Constitutional project has been a resounding success.”