The obscurest state agency is handed a most powerful ‘instrument’ with only presidential scrutiny
IN his ministerial statement of 29 December 2023, extending the SIM card registration period to the end of March 2024, Information and Communication Technology minister Peya Mushelenga made it a point to start off by extolling the virtues of SIM card registration.
He mentioned, among other benefits, that SIM card registration is “an instrument that eases and enables digital surveillance and interception as part of investigations of criminal offences and counter-terrorism efforts”.
However, the way the ministerial statement is framed it sounds as if SIM card registration is principally being implemented to “address crime and enable the application of digital services”, as well as being “a tool for e-service rollout”.
This framing is arguably meant to downplay the fact that SIM card registration is first and foremost about easing and enabling digital surveillance and interception, according to Part 6 of Chapter 5 of the Communications Act 8 of 2009.
With mandatory SIM card registration, the law, through regulations gazetted in 2021, “eases and enables” indiscriminate mass surveillance of the digital communications of everyone operating a SIM card or internet connection in Namibia.
The primary beneficiary of this “instrument” is of course the Namibia Central Intelligence Service (NCIS), embedded in the Office of the President.
The NCIS is responsible for gathering crime intelligence and spearheading the Namibian state’s “counter-terrorism efforts”.
Disproportionate power
In Namibia, indiscriminate mass surveillance is the logical consequence of mandatory SIM card registration and bulk data retention – every packet of telecommunications data has to be stored for a period of five years and can be linked to a verified and traceable telecommunications service user.
The “idea of bulk surveillance is problematic as it violates peoples’ right to privacy on a massive scale,” states Professor Jane Duncan, of the University of Glasgow, in a December 2023 policy brief for South Africa-based Intel Watch critiquing the South African government’s latest attempt to legalise indiscriminate mass surveillance.
Duncan continues: “The rationale intelligence agencies use for collecting … intelligence on an untargeted basis is that they do not know what they do not know about looming threats … They argue that this problem places them at a major disadvantage in detecting such threats before it is too late. They argue that the possibility of unknown threats means that they need to use the few investigatory methods at their disposal to do so, even if it means collecting huge volumes of information and violating the privacy of large numbers of people, and even whole populations.”
According to Privacy International (PI), an international digital rights advocacy group, a disturbing aspect of indiscriminate mass surveillance, despite what intelligence agencies say, is that “it is neither strictly necessary nor proportionate in a democratic society”.
PI notes that the practice “enables the potential for unchecked state power and control over individuals. Mass surveillance relies on the assumption that all information could be useful to address a hypothetical threat, which is irreconcilable with the fundamental values and principles of democratic societies that seek to limit the information a state knows about its people in order to moderate its power.”
PI questions “whether a democratic society can survive under constant surveillance”.
Unchecked entity
These concerns certainly resonate in Namibia, for as Professor Duncan notes in the South African context, it is also the case in Namibia “that the Presidency will have the most powerful spying capability in existence at its disposal with few meaningful checks and balances”.
The issue of a lack of “meaningful checks and balances” is where concern for Namibia’s democracy arises against the backdrop of the emergent mass surveillance powers vested in the presidency.
On paper, the National Assembly’s Standing Committee on Foreign Affairs, Defence and Security is supposed to exercise oversight over the activities of the NCIS.
However, the Namibian parliament, much less the historically dysfunctional parliamentary committee system, has never been an effective counter-weight to executive power.
Aside from this one parliamentary committee, and a secret court, there really is no independent and transparent oversight mechanism that can hold the intelligence agency, and the presidency, accountable in the public interest for abuses (as there surely will be) of mass surveillance capabilities.
Ultimately, Namibians are confronted with the same burning question facing South Africans, according to Professor Duncan: “Can it ever be acceptable for a government to have a spying capability where no one can have a reasonable expectation of privacy at any point, which risks destroying so much of our social fabric?”
An indication of how Namibians would probably answer this question comes from Afrobarometer’s Round 8, which was conducted in 2019.
When questioned about the state of freedoms in the country, 60% of respondents rejected the proposition that the government “should be able to monitor private communications, for example on mobile phones, to make sure that people are not plotting violence”.
This article was first published in The Namibian on 12 January 2024 under the headline ‘SIM card registration and the spy agency’. This article is an output of a surveillance research project supported by the British Academy’s Global Professorship Programme, through the School of Social and Political Sciences, University of Glasgow.
