Liapeng Raliengoane
Citizens, including journalists, are waiting for a landmark court ruling that will decide how much power the state has to seize information on citizens’ mobile phones without a court order, which will be delivered on November 17.
The Constitutional Court has already ruled that the current law gives the state too much power and is unconstitutional.
However, Prime Minister Samuel Matekane disagrees and has asked the Appeal Court to overturn this decision.
This appeal case, which was heard on October 23, followed an order by the Constitutional Court for the National Security Service (NSS) to return cell phones it confiscated from two opposition party politicians.
While the court also ordered the NSS to delete all information copied from the phones, it declared Section 26(2) of the National Security Act, under which the phones had been seized, unconstitutional.
“The warrant to seize and search the applicant’s cell phones and/or those in his possession violates his right to privacy and freedom from arbitrary seizure of property and is hereby declared unconstitutional,” stated the June 2023 Constitutional Court judgment, which Matekane and his government have now asked the Appeal Court of Lesotho to overturn.
The phones in question belong to Machesetsa Mofomobe, leader of the Basotho National Party (BNP), and Moeketsi Shale, the Democratic Congress (DC) deputy spokesperson. The NSS confiscated the devices alleging criminal activities.
Critics of the National Security Act point out how it is not just the power to confiscate devices that makes it problematic, that its dangers have to be seen in conjunction with the powers afforded to the NSS by the National Security Services Act. This empowers the minister to intercept communications without having to ask a judge for this permission, as is the internationally recognised standard.
MNN Centre for Investigative Journalism found out that the grounds on which the government is appealing the High Court judgment are, among others, as follows:
“The appellants are dissatisfied with the unanimous judgment by the High Court on the grounds that the Court erred and misdirected itself in holding that Section 26 (2) of the NSS Act is unconstitutional because it does not set out safeguards to guard against the abuse of power to issue warrants.”
“That the Court failed to construe the imperative of Section 26(2) that the Minister as an independent authority is vested with the power to consider the application made by NSS officials and make a determination on whether to issue a warrant.”
“The Court erred in holding that Minister Tau was not designated by the Prime Minister, yet 1st Applicant, Machesetsa, does not contest in his pleadings any issue of designation, instead based his case on the allegation that the Minister of Defence was not justified to seize the cellphones of Machesetsa without a court order.”
“The 2nd respondent, Shale, pleaded that Section 26 of the NSS Act is very clear, a warrant shall only be issued by the Minister of Defence.”
Attorney General (AG) Advocate Rapelang Motsieloa KC told MNN that he was not in a position to discuss this matter as it was before the courts.
This situation not only raises fears about the potential for the violation of citizens’ human rights and its ability to undermine democracy, if the Appeal Court agrees with Matekane and overturns the High Court ruling, it would have significant consequences for independent journalism.
Mohloai Mpesi, a local journalist said the government appealing the mentioned judgment shows that the Prime Minister does not care about the fundamental human rights and will at any length infringe on them.
“It says if he wins the appeal case, then our job as journalists is also in great danger as we will be prone to surveillance, which also means our duty of investigating news will be limited. They can come to you as a journalist, take all your gadgets and search what you have been investigating. It is scary,” he added.
Freelance journalist Motsamai Mokotjo expressed the view that the Prime Minister and his government are opposed to freedom of speech and the right to privacy.
Mokotjo emphasized: “The government’s appeal makes no sense; it is illogical and absurd. There must be a balance between security and privacy invasion.”
“From a journalist’s perspective, this is a worrisome issue, as it may lead to the criminalization of our work, compromising our sources and limiting our capabilities.”
The Media Institute of Southern Africa (MISA) Lesotho Chapter Chairperson, Kananelo Boloetse, highlighted that the case of Mofomobe and Shale versus the government underscores the delicate balance between national security concerns and journalists’ fundamental rights to protect their sources and information.
It also emphasizes the need for continued advocacy for press freedom, the right to access information and legal protections for journalists in the country.
Boloetse added: “The issuance of executive warrants for seizure poses a significant threat to journalists’ ability to protect their sources, as they rely on source confidentiality to gather information.
“The Constitutional Court ruling, despite being appealed, emphasizes the importance of privacy rights for all individuals, including journalists. Any intrusion into personal communications must be legally justified.”
He continued, “The government’s appeal suggests that this issue may remain a legal battleground, potentially chilling journalism as journalists become hesitant to report on sensitive or controversial topics due to privacy concerns and potential legal consequences.”
Boloetse disclosed that MISA Lesotho is advocating for a constitutional amendment to explicitly guarantee press freedom, which was initially included in the Omnibus Bill drafted by the National Reforms Authority (NRA) but was later removed by the tenth Parliament of Lesotho.
He added that they are closely monitoring the Mofomobe and Shale case and eagerly await its conclusion by the Court of Appeal.
When the Ministry responsible for journalists was reached for comment, the Minister of Information, Communications, Science, Technology and Innovation, Nthati Moorosi first told MNN that she did not remember this case of two politicians and their phones, but asked to be called later as she was in the Senate meeting.
When called later, she asked for the questions to be written down so she could reply as she was in a meeting. However, further efforts to get her response to those questions have proved futile as she did not pick up phone calls and ignored short text messages sent to her mobile number.
Cyber Researcher Rethabile Tšephe indicated that for many, the thought of surveillance especially in public places is a comfort. For others, it’s the opposite. Some people have mixed feelings of being watched, even if committing crime is not on their mind. And of course, for criminals, surveillance cameras are the last thing they want.
In her words Tšephe explained that mobile surveillance is usually a targeted attack, with the objectives of the surveillance preselected. Top executives and politicians, for instance, are often targeted because they manage strategic plans that have a great economic impact.
“Attacks of this kind tend to include social engineering strategies and are very often associated with advanced persistent threats,” she said.
“One cannot put a single finger on the subject of surveillance or how ethical it is. However, the peace and security of states are created by a number of factors, which I assume are put in place to ensure the public is safe from any life-threatening events. Again, I believe that as the public, we also need to look at the subject of surveillance from different perspectives and not just based on fear. We also need to acknowledge that, as the public, we all have our own agendas in the states we belong to, the peace and security of states is everyone’s responsibility,” Tšephe remarked.
The State of Press Freedom in Southern Africa Report (2022) released in May 2023 by MISA Regional discloses that while there have been no reported cases of the state spying on citizens, Lesotho is at high risk of state surveillance, as the government can legally circumvent freedom of expression using a so-called claw-back clause in the Constitution, Section 14(2), which offers situations like public interest and national security as reasons to limit freedom of expression.
This State of Press Freedom report further draws attention to the fact that in 2012, Lesotho enacted the Data Protection Act meant to regulate the collection of personal information in line with international standards.
The National Security Services Act appears to contradict the aim of the Data Protection Act.
The story of Mofomobe and Shale’s cellphones and governments’ attempts to get their hands on information on them began in May this year when officers from the NSS attempted to serve Mofomobe with a warrant that authorized NSS officers to seize his phones, conduct an investigation on such mobile phones, make copies of information contained therein and retain possession of such mobile phones for a period of thirty days, but Mofomobe refused to accept it and contested its execution. The officers left.
The following day, he filed a constitutional application, citing urgency. On May 19, a consensual interim order was issued, suspending the execution of the warrant.
On May 18, the NSS served Shale with a similar warrant which sought to seize his mobile phones, make copies of the information contained therein and keep the mobile phones for thirty working days. He complied, following his lawyer’s advice to surrender his three mobile phones.
On May 22, Shale filed an urgent application seeking interim orders for the return of his cell phones and a stay on their search.
The pair not only asked the court to return their devices, they asked it to rule on the constitutionality of Section 26 of the National Security Services Act under which authorities could justify the seizure as being part of a criminal investigation.
Section 26 (2) of the NSS states that: “The Minister may, on an application made by a member of or above the rank of Higher Intelligence Officer, issue a warrant under this section authorizing the taking of such action in respect of any property specified in the warrant as the Minister thinks is necessary to be taken in order to obtain information which:
(a) is likely to be of substantial value in assisting the Service to discharge any of its functions; and
(b) cannot reasonably be obtained by any other means.”
The constitutional case was heard by Chief Justice Sakoane Sakoane, alongside fellow High Court Judges Fumane Khabo and Moneuoa Kopo.
The judgment declared that Section 26(2) of the National Security Service Act No. 11 of 1998 is unconstitutional, as it violated the right to privacy and freedom from arbitrary property seizure.
Consequently, the Director General of the NSS Pheello Ralenkoane was instructed to promptly return the applicants’ cell phones and delete all copied information from them.
On October 23, the appeal case was heard by five judges: President of the Court of Appeal Justice Kananelo Mosito, Justice Petrus Damaseb, Justice Moses Chinhengo, Justice Johann Van Der Westhuizen and Justice Moroke Mokhesi.
