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

This article examines Botswana's Criminal Procedure and Evidence (Controlled Investigations) Act, 2022 (CPE Act, 2022), focusing on whether it provides adequate procedural safeguards and oversight to protect the constitutionally entrenched right to privacy during digital communications surveillance by law enforcement. It outlines Botswana's constitutional right to privacy, interpreted broadly and influenced by international human rights instruments, and applies a three-part constitutional test requiring that any interference with privacy be lawful, pursue a legitimate purpose, and be reasonably justifiable in a democratic society. While the CPE Act mandates that interception of communications requires a High Court-issued warrant and specifies application requirements, the article identifies shortcomings including the absence of limits on warrant duration in some cases, inadequate procedures for managing intercepted data, and lack of post-surveillance notification to individuals. These gaps may undermine protections against abuse and the effectiveness of oversight mechanisms such as the Controlled Investigations Coordination Committee, suggesting the need for legislative amendments to align the Act with constitutional and international privacy standards.