By Mwazi Sakala and Maureen Mulenga
Published onPage last updated on
This article was originally published in Issue 2 of Southern Africa Digital Rights, an online publication produced under the project "The African Declaration on Internet Rights and Freedoms: Fostering a human rights-centred approach to privacy, data protection and access to the internet in Southern Africa".
As Zambia continues to embrace technology on its quest to promote the Smart Cities Initiative, several pieces of legislation have been drafted including the Closed Circuit Television Public Protection Bill of 2021. This comes in the wake of increased use of technology in the public service and the integration of information technology in the provision of services in the public and private sector.
Closed Circuit TV (CCTV) is a TV system in which signals are not publicly distributed but are monitored, primarily for surveillance and security purposes. CCTV relies on strategic placement of cameras, and observation of the camera’s input on monitors remotely.
In Zambia, CCTV is increasingly being used by individuals in private spaces as a means of security to either monitor premises or provide a deterrent to would be criminals. They have also been deployed alongside road infrastructure as a component of remote road traffic management and speed monitoring.
Such public use of CCTV is able to identify and record additional data apart from just video. The use of CCTV for face recognition or tracking of motor vehicles based on their number plate registration has raised the important question about a person’s right to privacy and as such a suitable legislation is required to ensure Zambia falls within the universally accepted parameters.
Background
Zambia adopted a Smart City initiative in 2015, implemented in three phases. The first step in this initiative is establishing a national cloud data centre. The second is installing a national broadband network. The third involves building cloud platforms in a smart grid.
The government through then Chief Government Spokesperson Dora Siliya said that they had decided to introduce a bill on CCTV because there was no legal framework to regulate the use of CCTV in private and public premises in the country despite the fact that the technology is becoming affordable and has been widely used.
In the absence of appropriate safeguards, data and CCTV acquire a distinct sensitivity and vulnerability, as compared with paper documents, to risks arising from available means of unauthorised access, use, misappropriation, alteration, and destruction. Zambia, as a party to several international charters, endeavours to domesticate international and regional agreements with the Zambia Law Development Commission (ZLDC), a statutory body created under Chapter 32 of the laws of Zambia, primarily mandated to implement law reform.
In the ZLDC report [1] submitted to the Minister of Home Affairs and Internal Security, the Zambia Law Development Commission chairperson Mrs. Justice Roydah Kaoma said the use of Closed-Circuit Television (CCTV) has gained high importance in numerous sectors due to its efficiency and working benefits.
Legal landscape
Zambia currently lacks a legal framework regulating the use of CCTV. There’s a noticeable rise in individuals and businesses adopting CCTV systems without any governing regulations. This situation poses potential threats to both national security and individual privacy.
Numerous countries have effectively implemented public surveillance systems, aiding in crime reduction and offender prosecution. Law enforcement agencies globally utilize CCTV footage from private installations in their investigations. Encouraging and supporting the installation of CCTV in private spaces accessible to the public and in public areas across Zambia is crucial. However, this should be accompanied by a comprehensive legal framework. Such regulations are imperative to prevent abuse, safeguard privacy, and uphold national security standards.
The Ministry of Home Affairs and Internal Security engaged the Zambia Law Development Commission (ZLDC) to develop a legislative framework which ensures clarity and certainty in the use of CCTV and which also provides for uniformity of rights and obligations and redress where arising rights and duties are violated.
On Monday 17 June 2019, at the Cabinet Meeting at State House the introduction of a Bill that would regulate the use of Closed-Circuit Television (CCTV) in private and public premises was approved. [2] According to a report published in the Zambia Daily Mail newspaper on 18 June 2019, then Minister of Information and Broadcasting Services Dora Siliya, who was Government Chief spokesperson, disclosed that there had not been sufficient legislation in place to regulate the use of such technology.
According to a Montreal AI Ethics report [3] submitted by Sarah Chiumbu, not only are civilians unaware of such practices, but they also are not encouraged to be informed. Chiumbu notes that Zambian civilians would see CCTV cameras being erected but not know their purpose. There was no public consultation on the Smart City initiative the CCTV cameras facilitate. Even if there was a consultation, surveillance technology would need to be expressed in accessible language rather than general political jargon.
The Convention on the Organisation for Economic Co-operation and Development (OECD) urged Governments, the public sector and the private sector to take steps to protect information systems and to provide for their security, and established Guidelines for the Security of Information Systems in 1992. [4] These guidelines were replaced by the 2002 OECD Guidelines for the Security of Information Systems and Networks: Towards a Culture of Security and again in 2015 by the OECDs high level recommendations on Digital Security Risk Management for Economic and Social Prosperity. [5]
The Universal Declaration on Human Rights, [6] as agreed to by member states which include Zambia, pledges to achieve the promotion of universal respect for and observance of human rights and fundamental freedoms.
The Declaration is not legally binding, however, it forms part of customary international law, and has been the basis of the development of numerous human rights treaties.
Article 5 provides “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Article 15 of the Constitution of Zambia is premised on this provision. The right to protection from inhumane and degrading treatment is one of the four non-derogable rights. If the use of covert cameras is to be allowed in the development of the proposed legislation, this should be done in a manner which does not result in degrading treatment particularly to data subjects such as prisoners in correctional facilities. In addition, where covert cameras are to be used, they must comply with principles and standards set out in this instrument.
Article 7 stipulates that, “All are equal before the law and are entitled without any discrimination to equal protection of the law”. Therefore, all human beings are entitled to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination.
Article 12 provides that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. This section speaks to Article 17 of our Constitution, which protects the right to privacy, however, this may be derogated from if it is in public interest.
Article 20 provides that “everyone has the right to freedom of peaceful assembly and association”.
If the use of mobile surveillance cameras at public gatherings, among others, is to be provided for in the proposed law, this is to be done in a manner which does not hinder the aforementioned right, and such provision must have safeguards, such as limitations on the period of time such footage may be kept by law enforcement officers.
All Member States are required to ensure all of the aforementioned provisions are brought into fruition as stipulated in Article 28 which reads “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”
In a situation where Government authorities are conducting surveillance of an individual, they could easily harvest data from systems outside of their mandate by tapping into footage of street cameras, hospital facilities or even private shopping areas.
The African Charter on Human and Peoples’ Rights [7] (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. Zambia is a party to this instrument and has since ratified it.
Article 1 of the Banjul Charter provides that “The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them”.
This article speaks to Article 13 and 18 of the Constitution of Zambia which provides for protection of the rights to personal liberty and secure protection of the law respectively.
Further the Africa Union Charter on Cyber Security and Personal Data Protection [8] provides a guideline for establishing a credible framework for personal data protection in Africa through the protection of personal data and e-governance among others.
Conclusion
As Zambia has continued to roll out various technology centred pieces of legislation, the capacity to implement these has been brought into question, especially in view of some conflicting clauses in terms of enforcement or regulation.
CCTV is commonplace in many shops and there are no guidelines on storage of data or even consideration of individuals’ privacy.
Love of Home shop manager Liyah Chabala shared that CCTV has been very helpful in the management of stock at the shop, because they were able to detect suspicious behaviour and even capture footage of thefts which protected the store from losses.
However, when asked if the use of CCTV in the shop should be regulated, it was her opinion that in the same way a Trade Licence was issued, trade entities should also be compelled to have CCTV because it would help in monitoring activities and providing evidence in case of wrongdoing or false reporting.
A customer, who opted to remain anonymous shared how the CCTV footage was helpful because it helped resolve an issue she had faced when she had discovered that an item she had paid for, was not packed.
It would appear that the use of CCTV has been embraced as a norm and the adoption of regulation would easily be assimilated. However, the capacity to monitor or even back up data garnered from public and private CCTV systems remains in doubt.
As technology continues to advance and artificial intelligence begins to be the main engine behind systems, it opens up the possibility of illegal surveillance being undertaken based on face recognition technology or personal identification that could be seen as a breach of privacy and an encroachment on personal rights.
Notes
1 REPORT ON CLOSED-CIRCUIT TELEVISION PUBLIC PROTECTION BILL, 2021 – Zambia Law Development Commission
2 CABINET NODS CCTV BILL (znbc.co.zm)
4 Recommendation of the Council of the OECD concerning guidelines for the security of information systems 26 November 1992: https://www.oecd.org/digital/ieconomy/oecdguidelinesforthesecurityofinformationsystems1992.htm
5 OECD Guidelines for the Security of Information Systems and Networks / Lignes directrices de l’OCDE r.gissant la s.curit. des syst.mes et r.seaux d’information
6 udhr_booklet_en_web.pdf (un.org)
7 36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf (au.int)
8 29560-treaty-0048_-_african_union_convention_on_cyber_security_and_personal_data_protection_e.pdf (au.int)
