Compulsory GPS tracking of vehicles unconstitutional

In the wake of the assassination attempt on Gen Katumba Wamala, President Museveni recently suggested that there should be compulsory GPS tracking of vehicles and boda bodas in order to easily track down criminals.

WHAT IS THE GPS TRACKING?

Global Positioning System (GPS) technology allows a person to monitor, remotely and simultaneously, the movement of multiple individuals for limitless periods or to determine their precise location at the moment.

According to the Uganda Bureau of Statistics 2020 statistical abstract, by 2019 the overall number of motor vehicles and motor cycles was 38,182 and 107,273 respectively registered over the past year.

This clearly shows that most people who use them will succumb to privacy encroachment as proposed by government, which is unreasonable since we already have CCTV cameras in place to serve the same purpose of supporting law enforcement.

When used properly, advanced surveillance technologies significantly enhance the ability of law enforcement to maintain order and public safety. However, there is need to examine the government’s collection and use of this technology along with the impact on an individual’s privacy.

According to the latest statistical abstract published by the Uganda Bureau of Statistics (2020), it is estimated that there are 26.7 million mobile Sim card users, all of whom are likely targets for this GPS tracking since the GPS system is sim-card enabled.

This is the same device that government proposes to install in vehicles and boda bodas. It is, therefore, clear that technological advancements now enable substantial encroachments into zones formerly deemed personal.

GPS vehicle navigation raises heightened concerns about encroachment on individual privacy as third parties can easily access vehicle tracking information, and pry into hitherto concealed facets of our private lives.

Imagine a situation where the government can at any time track the whereabouts of any person. Is there a guarantee that government will not use this technology to oppress citizens?

HOW IS GPS TRACKING UNLAWFUL?

Privacy is a fundamental right enshrined in the 1995 Constitution and numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society.

It also supports and reinforces other rights, such as freedom of expression, information and association. The 1995 Constitution explicitly provides the right to privacy and calls for its protection.

Article 27 provides that “No person shall be subject to unlawful search of the person, home or other property of that person; or unlawful entry by others of the premises of that person and that no person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.”

In addition, Section 10 of the Data Protection and Privacy Act 2019 provides that a data collector, processor or controller shall not collect, hold or process personal data in a manner which infringes on the privacy of a subject.

Full-time GPS tracking of all road users, without any authorization and the knowledge of the person as to their location is an extreme interference to the privacy and is not justifiable even with the excuse of catching criminals.

This unfettered discretion of the government in using the GPS surveillance will have a great effect on the privacy of the citizens.

THE MULENGA DOCTRINE

We are alive to the provision of limitation on the rights and freedoms enshrined in the Constitution of Uganda. While Article 43 of the Constitution permits some limitations on the enjoyment of freedoms, no limitation can go beyond what is “accept-able and demonstrably justifiable in a free and democratic society.”

This was well articulated in Charles Onyango-Obbo and Another v. Attorney General, Supreme Court Constitutional Appeal No. 2 0f 2002.

Justice Mulenga (RIP) stated that “The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society, which I have referred to as ‘a limitation upon the limitation’.

The limitation on the enjoyment of a protected right in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however rationalized, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society.

Writing for the full court, the learned jurist added: “The protection of the guaranteed rights is a primary objective of the Constitution. Limiting their enjoyment is an exception to their protection and, is therefore, a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can only be overridden in the exceptional circumstances that give rise to the secondary objective.”

The introduction of any technology that is capable of tracking people’s vehicles is a clear invasion of one’s privacy and can only be justified when it has been prescribed by law, necessary to achieve a legitimate aim, proportionate to the aim pursued, and subject to periodic review.

RIGHT TO PRIVACY

The right of privacy which has been universally accepted is fundamental in a free and democratic society as the primary objective of the Constitution.

According to the National Information Technology Survey 2017/18 report, ministries, departments and agencies experienced 6.5 per cent unauthorised access to their computer system or data. This is not a small percentage to be ignored.

The proposed full-time GPS surveillance of a person’s location does not meet the legal test exhibited in the Constitution. Where there is no privacy, there is no freedom of expression.

Article 29 of the Constitution provides that “Every person shall have the right to freedom of expression, association and the right to move freely throughout Uganda.”

This right will be tampered with since people will be in fear of being watched all the time. The full-time surveillance using GPS technology provides the government with detailed information about an individual’s movements and gathering places and allows the storage, analysis, and comparison of that data with the data gathered from other sources, all with minimal involvement of rights-conscious law enforcement officers.

The type and scope of information collected by GPS surveillance enables governments to monitor a person’s political associations, and their amorous interests in a way that invades their privacy and chills expression of other fundamental rights.

There will always be the temptation by the government to spy on the activities of the opposition where this technology is at their discretion. The invasion of the citizen’s privacy by using this full-time GPS tracking of vehicles at the expense of the few criminals on the public roads is not in any way justifiable in a democratic society like Uganda.

Government should focus on looking for the motive of the assassinations of various high-profile Ugandans rather than depriving the citizens of their rights at the expense of the few criminals, many of whom have been prosecuted.

info@mylegalbrain.com

The author is a Peter Kibilango Social Justice Fellow in Residence at the Kampala-based Centre for Legal Aid, an affiliate of Legal Brains Trust.