President Ramaphosa Refers RICA Bill Back to National Assembly Over Constitutional Concerns

In a written communication to National Assembly Speaker Thoko Didiza, the President outlined potential constitutional vulnerabilities in the Bill, which could render it susceptible to legal challenges.

President Seeks Revisions to Safeguard Constitutional Compliance

President Cyril Ramaphosa has sent the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (RICA) Bill back to the National Assembly, citing concerns about its constitutionality.

In a written communication to National Assembly Speaker Thoko Didiza, the President outlined potential constitutional vulnerabilities in the Bill, which could render it susceptible to legal challenges.

Constitutional Obligations and Concerns

Under Section 79(1) of the Constitution, the President is required to either assent to a Bill or refer it back to Parliament if there are reservations regarding its compliance with the Constitution. While the National Assembly has passed the RICA Bill and submitted it for the President's assent, Ramaphosa believes the legislation contains provisions that require further refinement.

Key Constitutional Issues Identified

The President's reservations draw on the 2021 Constitutional Court judgment in the case of Amabhungane Centre for Investigative Journalism and Others v Minister of Justice and Correctional Services and Others, which highlighted critical safeguards needed to uphold privacy and due process in surveillance activities.

Specific concerns raised include:

Notification of Surveillance:The President noted that Section 25A(2)(b) of the Bill allows for the indefinite suspension of post-surveillance notification, meaning individuals subjected to surveillance may never be informed, potentially violating their rights to privacy and fair treatment.

Lack of Judicial Review:The absence of provisions for reviewing decisions to indefinitely suspend notifications further undermines transparency and accountability in the surveillance process.

Ex Parte Applications:The reliance on ex parte applications for interception directions and notification suspensions poses a challenge, as such decisions are made without the involvement or knowledge of the subject, potentially compromising their constitutional rights.

Call for Revisions

President Ramaphosa has urged the National Assembly to reconsider the Bill and address these deficiencies to ensure it meets constitutional requirements. This will enable the legislation to achieve its goal of regulating surveillance while safeguarding individual rights and avoiding the risk of legal invalidation.

Importance of RICA in Surveillance and Privacy

The RICA Bill seeks to amend existing laws governing the interception of communications in South Africa. It is a critical piece of legislation aimed at balancing national security interests with the constitutional right to privacy. The proposed amendments intend to strengthen oversight mechanisms and address loopholes identified in previous legal challenges.

Next Steps and Broader Implications

The referral is expected to prompt thorough deliberation in Parliament, involving legal experts, privacy advocates, and government stakeholders. The amendments to the Bill must address the identified issues while maintaining the balance between surveillance for national security and protection of citizens’ rights.

This development underscores the importance of ensuring legislative compliance with constitutional standards to foster public trust and avoid judicial setbacks.