Surveillance within the Law: A Critique of the Legal Framework for Surveillance of Digital Communications by Law Enforcement Authorities in Botswana

Abstract Surveillance of digital communications invokes both commendation and criticism. Whereas it may serve justifiable and legitimate purposes, it is also susceptible to abuse if it is undertaken in the absence of adequate safeguards. In 2022, Botswana enacted the Criminal Procedure and Evidence (Controlled Investigations) Act. The Act is intended to regulate the surveillance of digital communications for law enforcement purposes. This article assesses whether the Act provides adequate procedural safeguards to protect against undue infringement of fundamental rights, particularly, the right to privacy. In this regard, the article examines how the constitutionally entrenched right to privacy has been interpreted and applied by the courts in Botswana. Consequently, the article interrogates whether the surveillance of digital communications under the auspices of the Criminal Procedure and Evidence (Controlled Investigations) Act falls within the parameters of justifiable inroads into the right to privacy. The analysis of the Act is undertaken drawing inspiration from international jurisprudence on how to balance the necessity for surveillance with respect for fundamental rights.