What Happened to Our Privacy? Police Access to Our Personal Data

Some members of the public have recently raised concerns about amendments to the Criminal Procedure Act enacted last year without much attention from the press – perhaps because this amending act was part of the flurry of bills enacted in an unsuccessful attempt to avert Namibia being greylisted by the Financial Action Task Force (FATF), the international watchdog on money laundering and terrorist financing.

Namibia has international obligations to address money laundering and terrorist financing, which will contribute to the stability of the country’s financial system as well as to international safety and security.

However, some new provisions added to the Criminal Procedure Act to advance these aims raise important questions about personal privacy.

What are the worrying new provisions?

Three new provisions were added to the Criminal Procedure Act by the Criminal Procedure Amendment Act 7 of 2023.

New section 26A gives police officials power to require any person, or any public or private institution, to disclose any information relating to an investigation. This includes digital data.

The information can be demanded through a written notice from the police without any court involvement. The only requirement is that the information must “relate” to a police investigation.

The person or institution holding the data does not have to be suspected of any involvement in the crime, and there does not even have to be a reasonable suspicion that any specific crime has actually been committed.

There is also no exception for confidential information, such as information covered by attorney-client privilege or doctor-patient privilege, or information that might reveal the identity of confidential journalistic sources or whistleblowers.

New section 26B empowers the inspector general or a senior police officer to make a written request to a bank or other financial institution (or any other type of institution) to provide any information relating to the affairs or accounts of any of its customers if this “may assist the Namibian police in investigating an alleged offence”.

Again, no judicial authorisation is required and the customer whose information is requested need not be suspected of any criminal activity themselves.

In terms of new section 27A, failure to comply with any of these demands for information is a crime punishable by a fine of up to N$100 000 or imprisonment for up to five years.

What is the problem?

These amendments to the Criminal Procedure Act are extremely broad. As a point of comparison, consider the legal requirements for other searches for evidence in criminal matters.

In most circumstances, police must approach a judicial officer to get a search warrant, which requires an explanation of why the search is necessary.

The warrant will say precisely what people and places can be searched.

Searches can take place without search warrants in only limited circumstances: Where the relevant person gives consent or where the delay involved in seeking a warrant would defeat the purpose of the search, such as by giving the suspect time to hide or destroy evidence.

Police also have the power to search people without warrants if they have been arrested on a reasonable suspicion of committing a crime.

The involvement of judicial officers in issuing search warrants is an important safeguard against abuses of power.

In the absence of this safeguard, unscrupulous police officers could use trumped-up “investigations” as a way to access personal data for improper motives.

Also, even where police act with good intentions, the new provisions allow them to cast their net very wide.

Are these new provisions constitutional?

The question is whether these sweeping police powers violate the constitutional right to privacy.

Article 13 of the Namibian Constitution protects people against interference with the privacy of their homes, correspondence or communications.

This right is not absolute. It can be overcome on several grounds – “in the interests of national security, public safety or the country’s economic well-being, for the protection of health or morals, for preventing disorder or crime or for the protection of the rights or freedoms of others”.

However, Namibian case law holds that any permissible limitation of a constitutional right must impair the right as minimally as possible.

The interference with the right must also be proportional – meaning it must serve an objective that is important enough to justify overriding a protected right, without going beyond what is necessary to achieve that objective.

Section 26A provides for access to any documents by any police officer from any person for the investigation of any crime and so can hardly be described as a narrow infringement of the right to privacy.

This new power to demand data is not limited to crimes related to money laundering and terrorism financing, or even to a list of serious crimes – meaning it could be applied disproportionately.

Section 26B can be used only by senior police officers, but the bar to invoke it is very low, allowing access to any financial data that “may” assist with the investigation of any criminal offence.

Article 22 of the Constitution requires that limitations of any fundamental right must be narrow enough not to negate the right entirely.
It also says laws limiting fundamental rights must specify the extent of the limitation and identify the articles of the Constitution that authorise the limitation.

The 2023 amendments appear to fail on both of these counts.

The fight against money laundering and other criminal activity is undoubtedly important, but crime-fighting must not become a pretext for watering down important constitutional rights.

• – Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.