06 Feb 2022

Following skeptic reactions from some opposition legislators and scores from the society after the initial reading of the Criminal Procedure and Evidence (CP&E) controlled investigations Bill, Justice, Defence and Security Minister, Mr Kagiso Mmusi has assured that amendments have been made to allay fears.

The Bill was initially tabled on January 25 to create a legal framework to regulate the utilisation of specialised intrusive investigation techniques. However, fears were raised that the Bill would result in a repressive law, violating constitutional rights, more so that it was presented on a certificate of urgency, prior to going through the relevant consultative platforms.
“I am aware that the bill has caused uneasiness,” he said.

With that in mind together with concerns raised by legislators, Mr Mmusi said, when presenting the Bill for the second reading on Thursday,  that it had been re-examined and amended to cater for their concerns, adding that there was no intention to diminish the rule of law.
Mr Mmusi said successful investigations of conventional and organised crime required the use of specialised intrusive investigative techniques, while at the same time safeguarding and protecting human rights.

“The Bill, therefore, seeks to ensure that the controls and safeguards as far as possible outweigh the security threats,” he said.
He said court would be a mandatory approval authority for all requests under intrusive investigations without exception.
Minister Mmusi said the Bill would make it unlawful to use specialised investigative techniques without the court warrant and would set parameters and introduce controls on the extent to which investigatory authorities may apply investigative techniques.

“Competent authorities conducting investigations should be able to use a wide range of investigative techniques for cases of money laundering, associated offences and terrorist financing including undercover operations, intercepting communications, excessing computer systems and controlled delivery,” said Mr Mmusi.

He said the current legislative framework authorises intrusive investigative techniques through Terrorism Act, which provides for an investigative officer to apply to court for an order to intercept communications.

Mr Mmusi said the Cybercrime Act at section 23.1 provides for a police officer to apply to a judicial officer for the issue of an order.
He said the acts only concern themselves with the interception of communications and undercover operations.
“The fragmented approach not only possesses a terrorism and money laundering risk to the country and the international financial systems, but also creates an opportunity for abuse and violation of human rights,” he said.

Mr Mmusi noted that the Bill was also intended to address emerging issues such as the use of crypto currency virtual assets to support and finance activities of terrorism, such as money laundering and proliferation financing of weapons of mass destruction.
Additionally, Mr Mmusi said an undercover operation done without a warrant was an offence attracting a fine not exceeding P10 000, or a term of imprisonment not exceeding 12 years or both.
He added that the Bill provides for the granting of a warrant where the court was satisfied with the reasonable grounds for such a request.

Further, Mr Mmusi said intrusive investigative techniques must be utilised as the last resort.
He said the Bill also had a provision for court to issue an authority to acquire an assumed identity for use in an undercover operation.
He said the assumed identity would be cancelled by court after an application or after having satisfied the court on a review that the granting of the authority no longer exists.

He said an amendment to the CP&E would make it an offence attracting a fine of P50 000 or 12 years imprisonment to expose or disclose assumed identities of authorised persons.
Also, Mr Mmusi said misuse of assumed identities would attract life imprisonment for an investigating officer who intentionally or recklessly misuses the assumed identity.
Mr Mmusi said the Bill has a clause that prohibits interception of communication without a warrant and makes it an offence attracting a fine not exceeding P10 000 or imprisonment term not exceeding 12 years or both.

He said details must be provided to the court in an application for an interception warrant and the period for which the warrant was sought.
He added that the Bill provides for controlled interception of communication in order to safeguard the privacy of the citizens, and makes it an offence for a person to intentionally intercept or attempt to intercept or to authorise or procure another person to intercept or attempt to intercept communication in the cause of transmission.

 Mr Mmusi said the Bill provides for installing and removing communication transmission devices in a premises, as well as for communication service providers  to intercept communication.
“Issuance for the interception of communication is a technique to be utilised under most exceptional circumstances and a last resort,” he said.
He said prior to issuance of a warrant, court must establish that there was a threat of national security, that a serious crime related activity was or would be committed or that there was a potential threat to public safety.

Mr Mmusi said the collected evidence would only be admissible with leave of court after the investigators had fully provided the circumstances under which such evidence was obtained.
He added that evidence obtained not per the prescribed procedure would not be admissible in court.
He said a fine not exceeding P100 000 or imprisonment term not exceeding 15 years of both would be imposed on an investigator who abused their power to go beyond the scope of the warrant. ENDS