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May 17

2021

Londa – Digital Rights and Inclusion in Botswana

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May 17

2021

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Londa – Digital Rights and Inclusion in Botswana

Table of Contents

Introduction

Botswana’s population is estimated at 2.3 million as of 2020, based on the Worldometer elaboration of the latest United Nations data.[1] With a 4 million increase in mobile phone subscribers and a 1.3 million increase in mobile money subscriptions as of March 2020.[2] Mobile money is used by many consumers as a cheaper way to transfer money and to bridge existing financial gaps.[3] Although the government has made considerable progress and investment in rolling out fiber optic cable, Botswana’s broadband demand has seen a significant rise in the user market, with a high volume of mobile broadband traffic reported at 242 percent between 2017 and 2018.[4]

While the number of internet users was over 1.1 million[5] in September 2020 according to Internet World Stats, there was a slight increase of 23,000 users (+2.1 percent) between 2019 and 2020.[6] Access to digital skills, affordable and quality internet connectivity remains unevenly distributed in Botswana. Due to a lack of statistical evidence, there seem to be no precise figures measuring the country’s digital divide. The cost of 1GB is USD 5.84 (BWP64,34)[7], considered to be high, which means that many people continue to be excluded from the internet space.[8]

ICT Infrastructure and Policy Landscape

Botswana Communication Regulatory Authority (BOCRA) is the country’s communications regulator, formerly known as the Botswana Telecommunication Authority (BTA). Botswana’s communications sector consists of five divisions: telecommunications, Internet and ICTs, radio communications, broadcasting and postal services. The sector has four network operators, three of which operate under a Public Telecommunications Operator (PTO) license (BTC, Mascom, and Orange).[9] BoFiNet, the fourth entrant, focuses primarily on the distribution of wholesale telecommunications services to customers. In contrast, the rest of the operators focus on converging network telephony services, such as mobile data. Launched in 2007, Botswana’s first blueprint, the Maitlamo National Strategy for ICT Development, directs the country to use ICTs while driving national development efforts.[10] It is expected that this policy will transform Botswana from a manufacturing economy to an innovation-driven, and accelerated digital economy.[11] Although digital literacy and data protection were key concerns regarding internet use in Botswana that lacked a policy response, both were recognised in the ICT Policy (2007) and in the Broadband National Strategy (BNS) launched in 2018 as crucial issues needing policy guidance.[12] Section 5 of the BNS, for example, discussed the effect of these policies on digital rights and addressed concerns related to data privacy and internet security.[13] Striving to reach its development agenda to become one of the leading regional ICT hubs in the Southern Africa region, Botswana has invested in its futuristic innovation centre (Botswana Innovation Hub).[14]  Such advances in ICT and internet technology have driven the government to implement policies for e-governance and led citizens in the digital transition of public service delivery.[15]

Botswana also notes the importance of ICT infrastructure development and technology as an essential factor in implementing its e-governance policy. Embracing projects driven through Public-Private Partnerships (PPP) have shown great success in achieving digital transformation government goals. For instance, Botswana Telecommunications Corporation (BTC) and Mascom Wireless Nteletsa’s flagship project targeted villages linked to telephony and internet networks. Moreover, in 2010, Botswana Post also founded Kitsong Centres (rural telecommunications development programme).[16] For economic acceleration, this PPP model and projects have transformed citizens’ lives in rural areas and the government to carry out its e-governance mandate to this day.[17]  While available data shows that the overall level of electrical connectivity in rural areas of Botswana is 12%, this remains one of Botswana’s key challenges in improving its ICT infrastructure and connectivity.[18]

While new creative concepts for increased internet access continue to be embraced by the telecommunications industry, the market rivalry remains unchallenged and one-sided. Other competitors do not actively contest the status quo; telecom service providers such as Mascom appear to dominate the market share. Mascom’s market ownership was 55 percent from 2014 to 2016, while Orange retained 28 percent and BeMobile had an overall percentage of 17 percent. Botswana is ranked 21 in a total of 49 countries across Africa providing the cheapest prepaid mobile voice products (Voice/SMS basket) (30 Calls/100 SMS) at USD5.88 (BWP 64.90) in Q2 2020, according to Research ICT Africa Mobile Pricing (RAMP) index. Botswana ranks 7th as compared with other countries in the Southern Africa region.[19]

Online Freedom of Expression

Freedom of speech is protected by section 12 (1) of the Constitution of Botswana.[20] The country has been described as having an outstanding record for its long-standing democracy and political tolerance in Africa,[21] but in June 2020, Botswana security agents detained two Weekend Post journalists accusing them of “common nuisance” for photographing a building connected to the Directorate of Intelligence and Security Services (DISS), the country’s domestic and international intelligence agency.[22] Although these journalists have been released after spending a night in a police cell, this act reflects an increasing press freedom violation in Botswana and targets media freedom.[23]

Civil society has since expressed questions about the misuse of authority by state security and the use of diverse strategies and regulations that stifle press freedom. After de-campaigning against the Chief Justice for infringing their freedom of speech and demanding the independence of the judiciary, judges were dismissed in 2015.[24] There was also a 2015 case in which, according to Section 16 (2) (a) of the Cybercrime and Associated Crimes Act,[25] journalist Daniel Kenosi was charged with “unlawful distribution of obscene material”. Since then, the Directorate of Public Prosecutions (DPP) indicated that they were hindered from investigating the matter and sought specialist support from abroad, this investigation was suspended thereafter.[26]

To tackle misinformation and disinformation in Botswana, the publication of false information is punishable by law under Section 59 of the Penal Code, which specifies that: “Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of an offence”.[27] Latest media reports have accused the Botswana government of arresting opposition members and journalists for their online activities[28], a British journalist was also convicted with the same statute, and even though the allegations were subsequently dismissed.[29]  These cases illustrate how Section 59 can be used ruthlessly to threaten, but with little intention of equal trial and prosecution. The Botswana government should recognise the Declaration of Principles on Freedom of Speech in order to uphold the freedom of expression clause.[30]  Principle 3 and 37 describe “freedom of expression and access to information on the Internet” as an individual human right, and pillar of democracy. Botswana does not have existing regulations towards fake news, but strict liability provisions are imposed, it is the duty of the convicted party to show that what they have published is not false news.[31]

Data Protection and Digital Identity

The 2014 African Convention on Cyber Security and Personal Data Protection imposes signatories’ commitments to developing legal, political and legislative mechanisms to facilitate cyber-security governance and cybercrime regulation[32], and Botswana is one of the 14 African Union (AU) member states that have signed the convention. However, the Data Protection Act (2018) was passed by the Parliament of Botswana, but it is not yet applied to protect the data and privacy of people in Botswana.[33]

Sections 48(1) and 49(1) of the Data Protection Act 2018 (DPA) on the transborder flow of personal data says: “the transfer of personal data to other countries is prohibited” and, without prejudice to Section 48, “the transfer of personal data that is undergoing processing or intended processing, to a third country may only take place if the third country to which the data is transferred ensures an adequate level of protection”.[34] Legislation and regulation are critical in ensuring the rights of citizens online are protected from cybercrime and the unauthorised use of personal data. Both the Botswana Electronic Communications and Transactions Act, 2014 and the Data Protection Act 2018 (DPA) require a compromise to ensure that they are adequately enforced without violating citizens’ freedoms online and discouraging state apparatus from silencing dissent or spying on citizens.

 The launch of a new multi-biometric ID platform in Botswana that operates all identification operations for various government ministries came into effect in 2017. The Government of Botswana signed a new agreement between the Botswana Police Service (BPS) and Safran Identity & Security, a giant leader in identity and security solutions, through its division Morpho South Africa. The system upgrade comes as the government’s legacy system AFIS (Automated Fingerprint Identification System) was retired to a new one offering fingerprint and facial recognition features.[35]

Botswana recently deployed smart CCTV cameras with facial recognition features and capabilities to alert the police and make it easy to identify those that commit crime [36]. Although it is arguably possible to classify this surveillance network as more advanced, both the technology sector and the government are the main drivers of its technological deployments in the county. In 2018, the Botswana Police Service signed a Memorandum of Understanding (MoU) with Huawei to deploy CCTV surveillance cameras through the Safe City projects.[37] Botswana has no general laws to regulate the use of data gathered from CCTV surveillance by state agencies and now with a tainted private-partnership contract with Huawei — a global technology company known for its questionable record towards privacy and human rights.[38] Such advances can only have chilling implications on the future of Botswana’s digital rights, online freedom and personal privacy.

 Media sources reported that under the leadership of then-President Ian Khama, DISS and the Military Intelligence Unit (MIU) were alleged to have acquired state-of-the-art surveillance equipment, including spying capabilities from an Israeli based company on the internet and telephone in the run-up to the 2014 general election.[39] In February 2015, leaks disclosed that DISS had invested USD 64.7 million to a German corporation, classified documents revealed that DISS had installed FinSpy Mobile and FinSpy PC to track opposition political rivals, journalists and government critics.[40] Subsequently, due to a lack of oversight and responsibility, these actions have potential and daring consequences of violating human rights, personal privacy and freedom of information.

COVID 19, Privacy and Human Rights

In several African nations, the spread of the COVID-19 pandemic has had a significant socio-economic effect. The Botswana government has adopted radical measures, including social distancing and strict lockdown regulations, to stop the transmission of COVID-19.[41]

In April 2020, the parliament also passed emergency laws that gave the President full authority to govern for six months by decree.[42] These policies pose an immense danger and empower the government to potentially misuse their authority, and this could erode respect for human rights and digital rights.[43]

The United Nations High Commissioner for Human Rights (UNHCR) has called for human rights to be at the forefront of the state’s response to the COVID-19 pandemic.[44] There is a need for the government to take adequate steps to protect human rights while fighting the pandemic. In July, the government launched the first of its kind, BSafe mobile application — a QR code contact tracing tool donated by a local firm, Brastorne Enterprises.[45] — the first of its kind in the region[46]. Without checks and balances on these measures and tools, there are concerns that these may potentially violate personal privacy and other human rights.

Gender and Access to the Internet

The African Declaration on Internet Rights and Freedoms (African Declaration)[47] and the Feminist Principles of the Internet (FPI)[48], provides for the rights of all citizens and calls for affordable and equal access to the internet, free from the oppression of any sort. Despite the number of women in the ICT industry, increasing in Botswana, this sector remains more male-dominated.[49] The full extent of the gender digital divide in Botswana is difficult to ascertain, especially given the lack of gender-disaggregated ICT data.[50] However, the gender digital divide in Botswana is, as the majority of other African countries, a cause for concern.

For example, studies suggest that Africa has seen an increase in the gender disparity amongst internet users.[51] With over 300 million off-line women in the Sub-Saharan region, Botswana appears to be part of this continental pattern.[52] More recent research shows that 14 percent of women in the region are less likely to own a simple mobile phone, and 34 percent are less likely to own a smartphone connected to the internet.[53] In this sense, attempts to widen access and counter-current gender inequality, including the under-representation of women in leadership roles, must also be understood specifically in the field of internet governance.

Conclusion and Recommendations

This study has revealed that the number of policies that regulate the use of digital communications, including the Internet, has been broadened by successive governments in Botswana since 1999. The state has sought to use legislation to legitimize activities that are otherwise unconstitutional to place limits and restraints on digital rights. Although laws in place are touted as important in order to curb cybercrime or enhance cybersecurity in the country, they have also been used to clamp down on opposition and quenching dissent.

While there are some indicators to increased access and use of ICTs in Botswana, the recent outbreak of COVID-19 pandemic could deepen the country’s digital divide. The government’s activities have largely undermined rather than facilitated, greater access to and affordability of digital technologies. In the absence of consistent, accountable and open oversight structures, new technological developments assessed in this study, including the use of COVID-19 contact tracing technology, lack in design data privacy consciousness, the reality that is likely to erode privacy rights, weaken the rule of law, strengthen impunity, and reduce the transparency of the state use of these tools. It may also suggest that these policies’ consequences could continue for years to come unless all relevant stakeholders assess their long term impact.

In particular, this study also notes the deployment of CCTV surveillance networks by Botswana’sgovernment, which lacks transparency and legislation to regulate surveillance activities. Indeed, there is a need to continue pressing for transparency in this regard, including how CCTV surveillance networks operate and manage data. Data protection laws and regulatory standards for accountability and transparency, such as those outlined in this case study, 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.

Civil society organisations need to collaborate by promoting internet freedom by lobbying, and public interest litigations that foster internet privacy for a desirable atmosphere that promotes the awareness and enjoyment of internet freedoms. Ensure that the legislation and regulations geared towards defending the right to privacy and personal data are considered when deploying CCTV surveillance systems for monitoring the movement of citizens which provide adequate protections and values, like ‘privacy by design’.

The Botswana government should establish regulatory and legislative measures to ensure accuracy and integrity in the gathering, storing, and analysing data gathered through the BSafe contact tracing app. Governments should have set in place mechanisms in this respect to ensure that sensitive data is safeguarded and not misused by unscrupulous people during COVID-19 crisis in order to breach human rights or to enforce programs for mass surveillance.

 

[1] Worldmeter, Botswana Population, https://www.worldometers.info/world-population/botswana-population/

[2] Botswana Communication Regulatory Authority statistics, https://www.bocra.org.bw/telecoms-statistics

[3] Research ICT Africa, After Access Survey (2018),Comparative Report, https://researchictafrica.net/wp/wp-content/uploads/2019/05/2019_After-Access_Africa-Comparative-report.pdf

[4] BOCRA (2020), “Broadband Facts and Figures”, https://www.bocra.org.bw/sites/default/files/documents/Mar%2029%202020%20Final%20BB%20Facts%20and%20Figures.pdf

[5]  https://www.internetworldstats.com/stats1.htm

[6] Digital 2020: Botswana, https://datareportal.com/reports/digital-2020-botswana

[7] Research ICT Africa Mobile Pricing (RAMP), https://researchictafrica.net/ramp_indices_portal/

[8] https://researchictafrica.net/polbrf/Research_ICT_Africa_Policy_Briefs/2017%20Policy%20Brief%201_Botswana%20.pdf

[9] Botswana Communication Regulatory Authority, ICT Licensing Framework in Botswana, https://www.bocra.org.bw/sites/default/files/documents/ICT%20Licensing%20Framework_0.pdf

[10] Republic of Botswana, Ministry of Communications, Science and Technology, Maitlamo:National Policy for ICT Development, https://publicadministration.un.org/unpsa/Portals/0/UNPSA_Submitted_Docs/2019/f912b59f-5963-4335-9dff-194a1a522c49/Maitlamo%20Policy_26112019_083359_d807e512-ea2e-4d56-8fba-60679904b985.pdf?ver=2019-11-26-083359-520

[11] This policy builds into diversification of Botswana’s economy. The policy aims at “diversifying Botswana’s economy from heavy dependence on mining to other sectors.”

[12] Botswana National Broadband Strategy, https://www.bocra.org.bw/sites/default/files/documents/National-Broadband-Strategy-FINAL%28June2018%29.pdf

[13] Communications Regulatory Authority Act of 2012 deals with some aspects of network security (See in this regard section 56 of the Act that seeks to protect networks by outlawing the damaging or obstruction of construction or maintenance of communications networks), it does not provide for a comprehensive framework for network security.

[14] Bloomberg, Africa’s Diamond Capital Invest in a Futuristic Innovation Hub, https://www.bloomberg.com/news/articles/2020-09-18/in-africa-a-silicon-valley-style-tech-hub-emerges

[15] Republic of Botswana, Botswana national e-government strategy, http://staging.nationalplanningcycles.org/sites/default/files/country_docs/Botswana/egovstrategy.pdf

[16] https://media.africaportal.org/documents/technology_and_nature_active_citizenship.pdf

[17] Critical Success Factors For e-Governance Projects: The Case of Botswana,  https://ibimapublishing.com/articles/JEGSBP/2018/335906/335906.pdf

[18] https://inis.iaea.org/search/search.aspx?orig_q=RN:38031492

[19] Research ICT Africa, Botswana Telecommunication limp a decade after policy change, https://researchictafrica.net/2017/02/23/botswana-telecommunications-limp-a-decade-after-policy-changes/

[20] Charles Manga Fombad, “The Protection of Freedom of Expression in the Public Service Media in Southern Africa: A Botswana Perspective”, Vol. 65, No. 5 (Sep., 2002), pp. 649-675, https://www.jstor.org/stable/1097611

[21] Philomena Apiko, “Botswana: One of Africa’s most stable democracies, but where are the women?”,https://ecdpm.org/talking-points/botswana-one-of-africas-most-stable-democracies-where-are-women/

[22] President Masisi and the illusion of change, https://inkjournalism.org/2216/president-masisi-and-the-illusion-of-change/

[23] Committee to Protect Journalist (2020), “Journalists arrested, charged with ‘nuisance’ in Botswana”,https://cpj.org/2020/06/journalists-arrested-charged-with-nuisance-in-botswana/

[24] Amnesty International, ‘Suspension of judges in Botswana potentially threatens freedom of expression and judicial independence’, 10 July 2017, accessible at https://www.amnestyusa.org/press-releases/suspension-of-judges-in-botswana-potentially-threatens-freedom-of-expression-and-judicial-independence/

[25] Freedom House (2017) Freedom of the Press 2016/Botswana https://freedomhouse.org/report/freedom-press/2016/botswana

[26] DPP seeks external help on Daniel Kenosi case, https://www.sundaystandard.info/dpp-seeks-external-help-on-daniel-kenosi-case/

[27] https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/61336/92021/F138317428/BWA61336.pdf

[28] Botswana government accused of arresting opposition members and journalists, https://www.enca.com/news/botswanas-govt-accused-arresting-opposition-members-journalists

[29] Botswana drops case against british journalist, https://www.independent.co.uk/news/botswana-drops-case-against-british-journalist-1157355.html

[30] https://africaninternetrights.org/en/declaration

[31] Media Institute of Southern Africa, https://zimbabwe.misa.org/2020/06/01/covid-19-fake-news-laws-being-used-to-stifle-free-speech/

[32] African Union convention on cyber security and personal data protection, https://au.int/en/treaties/african-union-convention-cyber-security-and-personal-data-protection

[33] https://www.endcode.org/post/does-botswana-have-a-data-privacy-law

[34] Data Protection Act 2018, https://www.bocra.org.bw/sites/default/files/documents/32%20Act%2010-08-2018-Data%20Protection.pdf

[35] IDEMIA (2017), “Government of Botswana selects Morpho South Africa to provide a single multi-biometric platform for all the identification requirements of various government departments”, https://www.idemia.com/press-release/government-botswana-selects-morpho-south-africa-provide-single-multi-biometric-platform-all-identification-requirements-various-government-departments-2017-05-02

[36] The Patriot,”F/town gets crime-monitoring cameras”, http://www.thepatriot.co.bw/news/item/7315-f-town-gets-crime-monitoring-cameras.html

[37]Xinhuanet (2019), “Huawei project in Botswana to help reduce crime incidents: official”, http://www.xinhuanet.com/english/2019-08/27/c_138340372.htm

[38] Samuel Woodhams (2020), “Huawei says its surveillance tech will keep African cities safe but activists worry it’ll be misused”, https://qz.com/africa/1822312/huaweis-surveillance-tech-in-africa-worries-activists/

[39] Khama/Kgosi network of shady intelligence security big shots has DISS over a barrel, https://www.sundaystandard.info/khama-kgosi-network-of-shady-intelligence-security-big-shots-has-diss-over-a-barrel/

[40]  Botswana Guardian (2015), ‘DIS launches massive surveillance operation’, http://www.botswanaguardian.co.bw/news/item/1284-dis-launches-massive-surveillance-programme.html

[41] Democracy Works Foundation, “Assessing COVID-19 Response Measures – Botswana”, https://democracyworks.org.za/assessing-the-measures-at-country-level-case-of-botswana/

[42] Censorship, the unexpected side-effect of COVID-19, https://mg.co.za/africa/2020-05-11-censorship-the-unexpected-side-effect-of-covid-19/

[43] Extraordinary powers need extraordinary protections

https://privacyinternational.org/news-analysis/3461/extraordinary-powers-need-extraordinary-protections

[44] Office of the High Commissioner for Human Rights. (2020, 6 March). Coronavirus: Human rights need to be front and centre in response, says Bachelet. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25668&LangID=E

[45] African Countries Growing App-etite for Coronavirus Apps get Mixed Results, https://thecorrespondent.com/598/african-countries-growing-app-etite-for-coronavirus-apps-gets-mixed-results/78359490924-b6a9fec3

[46] Morgan Meaker, “African Countries Growing Appetite for Coronavirus gets mixed results”, The Correspondent, 20 July 2020, https://thecorrespondent.com/598/african-countries-growing-app-etite-for-coronavirus-apps-gets-mixed-results/78359490924-b6a9fec3

[47] https://africaninternetrights.org/declaration

[48] https://feministinternet.org/en/principles

[49] Botswana Daily News, http://www.dailynews.gov.bw/news-details.php?nid=19997

[50] Sey, A., & Hafkin, N. (2019). Op. cit.; see also APC. (2017). Op. cit., where it is noted that “representative and gender-disaggregated data should be gathered in a consistent and rigorous manner to reach a better understanding of the factors shaping women’s access to and ability to benefit from meaningful internet access in diverse contexts.”

[51] Sey, A., & Hafkin, N. (2019). Op cit.

[52] Mlambo-Ngcuka, P. & Albrectsen, A. (2020, 6 May). Op-ed: We cannot allow COVID-19 to reinforce the digital gender divide. UN Women. https://www.unwomen.org/en/news/stories/2020/5/op-ed-ed-phumzile-covid-19-and-the-digital-gender-divide

[53] OECD. (2018). Op. cit.

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