by Judith February, Cape Times, 29 July 2003
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Open the land to people! This is the somewhat ambitious motto of the
Immigration Advisory Board (IAB), unveiled in Cape Town recently with an
admirable first "public consultation". The board, chaired by Professor Wilmot
James, is a new creation in terms of the 2002 Immigration Act. The public
consultation examined the constitutional implications of capturing data and
recording movements of both South African citizens and foreigners moving through
"points of entry" at South African borders. The question which the IAB was
interested in examining was whether capturing data of those crossing borders was
a breach of individuals' constitutional right to privacy. On the state side,
director A Z B Gous of the Border Police tried to explain why the captured data
was needed. He argued that "basic data" was needed for the purposes of
maintaining the security of citizens, and that there are some 90 cross-border
crime syndicates in operation. These crime syndicates were operated by, amongst
others, Mozambicans who freely moved across the border with South Africa. Gous
went on to argue that the South African state has an excellent record of
protecting data despite the fact that a South African law on data protection is
about two years away. Citizens should therefore feel reassured that the data,
once captured by the state, would not be abused by the state in other ways. It
would have been surprising if the irony of the old-style South African
bureaucrat defending the democratic state was lost on anyone in the room. But
why the fuss? Why would someone not want the state to capture data recording
their entries and exits if they did not have something to hide, as Robert
McBride, a member of the IAB, put it? Responding to Gous, the executive director
of the Open Democracy Advice Centre, Richard Calland, said that this was to ask
the wrong question and to approach the issue from the wrong angle. Perhaps the
point of departure should instead be, why should the state hold private
information about individuals' movements, and for what purpose? What, precisely,
is the public policy objective of recording or storing personal data? The danger
is that what appears on the face of it to be a relatively harmless law could in
fact lead to an unfair incursion of the right to privacy. Of course, it is to be
accepted that once one crosses a border, one is automatically entering a "public
sphere" which in and of itself results in the limitation of one's right to
privacy.
In addition, there are indeed important human security concerns which need to be
taken into account and balanced against the right to privacy. The crux however,
as with any constitutional right, is whether the limitation is both "reasonable
and justifiable in an open and democratic society". At present, there is no way
of knowing what "basic data" will be captured. All that is known about the
system, the state proposes, is that it may possibly throw up in excess of 100
potential questions, a selection of which individuals may be asked. But when
does one's privacy become invaded to such an extent that it is "unreasonable"
and "unjustifiable"? It is quite easy to envisage a situation in which
information about for instance one's HIV/Aids status is requested by the state
or where information is cobbled together about citizens' lives based on the
answers to such data set questions. The very essence of the right to privacy is
that individual citizens are able to move around freely, without their comings
and goings being recorded somewhere and without the possibility of such
information falling into the wrong hands. Is that not what was one of the most
hateful aspects of apartheid - the ability of the state to infringe on and
control every aspect of citizens' lives? The difficulty comes though when
democratic governments make laws which have the potential to infringe rights in
the future. Tempting as it may be to trust those who will be in power in future,
safeguards have to be built into laws for the maximum protection of rights. The
South African constitution was designed to curb the abuse of state power, so
whatever the noble motives of the state in requesting "basic data" from those
crossing borders, there is no guarantee that a subsequent undemocratic
government will not abuse such a law.Organised crime is on the increase in South
Africa and there is no doubt that South Africa has experienced capacity problems
in patrolling its borders. The emphasis should therefore be on increased
protection of citizens and the resolve to deal with the social problems within
South Africa which an increased crime rate represents.
Yet the myriad of violent crimes committed by South Africans against South Africans also needs to be dealt with decisively. The merging of focus on immigration and security could serve to reinforce the xenophobic tendencies existing in some quarters in South Africa, that crime is committed by those who are foreign and "other" and not by "our own". These problems are societal and need possibly to be addressed in a way which seeks to draw people away from crime. The right to privacy and the concomitant right to protect the content of our lives and move freely is what separates democratic societies from autocracies and overbearing states. Our constitution demands minimal state interference in the private sphere. No matter how well-intentioned, attempts by the state to limit this right need to be approached with caution. Where the difficulty lies, however, is that the state also needs to fulfil its obligations to keep citizens secure. Such a balancing of rights needs a healthy realism - a realism premised on the fact that serious action needs to be taken against escalating crime, whilst simultaneously protecting rights. While the IAB has the unenviable task of attempting to advise on the balancing of rights and interests, they, like us, must be resolute as well as realistic when performing their crucial function.