“Botswana” by Shaund from Wikimedia Commons. Used under a CC BY-SA 4.0 license.

This piece was written as part of  Advox's partnership with the Small Media Foundation to bring you the UPROAR initiative, a collection of essays highlighting challenges in digital rights in countries undergoing the UN's Universal Periodic Review process.

In 2020, the government of Botswana was exposed as one of several African states that used Circles, a spyware firm based in Cyprus, to spy on journalists and media personnel from the country. Botswana’s Directorate of Intelligence and Security Services was quoted as having used Circles’ spyware to hack into people’s communications devices from as early as 2015. The Directorate of Intelligence and Security Services, under the Office of the President, gathers and assesses internal and external intelligence, offering security to top government figures, and advising on national security matters.

Botswana is regarded as one of the more mature and stable constitutional and multiparty democracies in Africa — however, the digital realm in Botswana presents a double-edged sword, both a conduit for progress and a breeding ground for potential human rights violations. As technology's embrace tightens, concerns loom over data privacy, surveillance, and online freedom.

Targeting journalists as criminals

In mid-2021, Botswana’s police was reported to be using the Universal Forensic Extraction Device manufactured by Cellebrite, a phone-hacking technology vendor. This was to extract data from phones of journalists once again as a crackdown on the country’s media. According to a report by the Committee to Protect Journalists (CPJ), the technology is used to “trace individuals who are willing to share information to the media.”

Jonathan Rozen, CPJ’s Senior African Researcher, has highlighted a troubling trend of increased criminalization of journalists since 2020, coinciding with the global crisis triggered by the COVID-19 pandemic. This distressing development has been accompanied by the unwarranted seizure of journalists’ devices under the guise of digital forensics, with the ulterior motive of uncovering their sources, often at the behest of security agencies.

The rising incidents of journalists facing criminal charges represent a disturbing threat to press freedom, an essential pillar of democratic societies. Journalists perform a critical role in holding governments and institutions accountable, and their ability to do so should be safeguarded rather than criminalized.

The confiscation of journalists’ equipment and the invasive practice of digital forensics not only violate their fundamental rights but also undermine the very essence of journalism. Protecting the confidentiality of sources is a cornerstone of responsible journalism, and any attempts to breach this sacred trust can have a chilling effect on investigative reporting and the public's right to know.

In October 2021, according to a Freedom House report, the UN Human Rights Committee expressed concern over an increase in the “scale and scope” of intrusive surveillance methods used against Botswana citizenry by the authorities, through the Directorate of Intelligence and Security Services (DISS). The Freedom House report gives Botswana a 72/100 on the Global Freedom Score for 2022.

The government’s failed attempt to introduce warrantless surveillance provisions into the Criminal Procedure and Evidence (Controlled Investigations) Act 2022 heightened concerns about the government’s perception of free-expression rights.

It is imperative for governments and authorities to uphold the principles of press freedom, even in times of crisis such as the COVID-19 pandemic. A free and independent press is indispensable for disseminating accurate information to the public, especially during global emergencies. Efforts to stifle journalism and compromise journalists’ ability to report on vital matters should be resolutely condemned and addressed by the international community.

Civil rights and legislation, who wins?

On January 24, 2022, the Minister of Defence, Justice and Security, Kagiso Mmusi tabled the Criminal Procedures and Evidence (Controlled Investigations) Bill in the country’s parliament. Two days later, Botswana’s press freedom organizations, including the Media Institute of Southern Africa (MISA) Botswana chapter, issued a statement stating that the proposed law amounted to “nothing short of criminalizing journalism, and with that, the freedom of expression.”

Other human rights organizations, including the Universal Periodic Review (UPR) NGO Working Group — consisting of six organizations and led by the Botswana Centre for Human Rights (Ditshwanelo) — also released statements shining the spotlight on the country’s legislative body. Media organizations, including the Southern African Editors Forum (SAEF), the African Editors Forum, and the Campaign for Freedom of Expression (CFE), joined in condemning the bill.

When the bill was tabled in the National Assembly, there was public outcry on the invasion of privacy and the infringement of freedoms of expression and the media. Eventually the bill was withdrawn and amended. A new bill was passed and introduced new clauses such as Clause 7, “Protection of privacy in controlled investigations” — which, among other things, “prohibits investigators from intercepting communications without a warrant,” where previously the bill provided for authorities to conduct warrantless interception of a person’s communications for up to 14 days.

The challenges above indicate the digital rights landscape in Botswana remains a cause for concern within local civil society. In the age of digital transformation, Botswana faces a complex conundrum: the promise of progress tangled with potential threats to fundamental human rights. As technology's footprint deepens, concerns arise over digital privacy, surveillance, and the delicate balance between innovation and individual liberties.

Digital rights violations

In mid-2020, Botswana's security agents detained two journalists from the Weekend Post newspaper, alleging they took photos of an unmarked building linked to the Directorate on Intelligence Services (DIS).

The arrests raised concerns about media intimidation in a country commonly praised for its democracy. The detained journalists faced “common nuisance” charges and a night in a holding cell. Their arrest was part of a pattern of increased harassment against private media in Botswana. Despite President Masisi's leadership, access to information and media legislation remained unchanged.

Botswana enforces data privacy through its Constitution's Section 9 and the Data Protection Act, 2018 (DPA). The DPA's primary aim is to safeguard personal data and privacy rights. It outlines lawful data processing principles, appoints a Data Protection Commissioner for enforcement, sets limits for sensitive data processing, and grants rights to data subjects. This act was developed for “cyber-security governance and cybercrime regulation.”

Remedies and recommendations for individuals and organizations

Canadian-based interdisciplinary lab The Citizen Lab focuses on research, development and high-level strategic policy and legal engagement on Information and Communication Technologies, human rights and global security. It recommends that for individuals like journalists, activists, or government staff, telecommunication network vulnerabilities pose risks of interception and account compromise. It also advises migrating from SMS-based two-factor authentication if facing threats due to location, and recommends using security keys and enabling security PINs/passwords for apps like Signal, WhatsApp, and Telegram for enhanced protection.

Botswana’s digital rights and inclusion report of 2020, Londa, as published by Paradigm Initiative, notes the deployment of CCTV surveillance networks by Botswana’s government, and the absence of transparency and legislation to regulate surveillance activities. There is a need to continue pressing for transparency including how CCTV surveillance networks operate and manage data.

Data protection laws and regulatory standards for accountability and transparency, such as those outlined here, may be able to mitigate some of the worst known privacy violations today, but, as surveillance technology becomes more advanced and spreads into other fields, more work is required to protect human rights.

The absence of robust regulations exposes citizens to vulnerabilities, from data exploitation to curtailed online expression. As Botswana charts its course into the digital frontier, the challenge lies in crafting policies that harness technological potential while safeguarding human rights, striking a delicate equilibrium between connectivity and preserving the democratic fabric of society.

Botswana, like any other country, should recognize the vital role that a free press plays in fostering transparency, promoting civic engagement, and ensuring the well-being of its citizens. Safeguarding the rights and safety of journalists is a crucial step toward building a more open and democratic society where the free exchange of information thrives.