South Africa's Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) is going to be constitutionally challenged by the amaBhungane Centre for Investigative Journalism.

amaBhungane argue hat the fundamental problem with RICA, among other problems, is that the target of the interception order is never informed of the order, even after the period of interception has ended and even after any investigation has been concluded.

"It is like a search warrant that is executed at your home while you are away, but you are never informed and everything is put back very carefully so you never know it happened. Because of this, we argue, the target of an interception order is never granted the opportunity to test whether the intrusion was lawfully approved – and on the basis of a reasonable suspicion." said amaBhungane in a statement announcing their intention to constitutionally challenge RICA.

They say that the founding papers have already been served on South Africa's ministers of justice, police, state security and communications.

The five constitutional RICA problems as identified by amaBhungane are:

  • The target of the interception order is never informed of the order – even after the period of interception has ended and an investigation concluded.

  • RICA is silent about the procedure state officials should follow when examining, copying, sharing, and storing the intercepted data. Where the interception is found to be irrelevant, there is no certifiable procedure for the data to be destroyed.

  • RICA requires private companies to store certain information, but does not provide oversight mechanisms.

  • There are deficiencies in the regime for oversight by the retired judge nominated to rule on interception applications.

  • RICA fails to protect targets of interception who have a legal duty to protect the confidentiality of communications and sources, such as lawyers and journalists.

"We are going to court, starting with the high court in Pretoria, so as to strengthen the protection of journalists and the public against the abuse of this arguably necessary, but intrusive legislation." said amaBhungane.

You can read the full application to the North Gauteng High Court in Pretoria here.

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