That the right to privacy is joined at the hip with the concept of human dignity is a no-brainer. Human dignity, which centuries ago had a denotative and connotative meaning that was at variance with how we understand it today, has gone through evolution. The US Declaration of Independence and indeed the US Constitution for instance, do not explicitly speak to ‘human dignity.’ That, in part, is attributable to the fact that historically, Latin, English and French speakers, nay peoples, ascribed a different meaning to ‘dignity’, a meaning that was informed by the class struggle in those societies at the time. Ergo, to be dignified had little or if not anything, to do with one’s value as a human being but everything to do with their standing in the social and economic order of the time such as linkages to the church or royal families and wealth. Human dignity in both the form and substance that it is appreciated today evolved to encompass one’s value as a human being on the basis of just that—being human. That is how in 1948 the United Nations Declaration of Human Rights gave recognition to the concept of ‘human dignity’ under Article 1: “All human beings are born free and equal in dignity and rights.”
Eighteen years later, the International Covenant on Civil and Political Rights (1966), reinforced this all-embracing concept; blind to race, gender, economic status and other forms of ‘othering’ that had defined ‘human dignity’. The preamble states that, “…
The elephant in the room
In Europe, the roots of the privacy-human dignity link, as Sylvia Lissens records, date
The nexus between privacy and human dignity, again with reference to the earlier closed-minded and classist understanding of ‘human dignity’ in especially European society, is certainly one that goes as far back as the seventeenth century.
In 2004, James Whitman in a peer-reviewed journal article, argued that “the Nazi cruelties were only a catalyst for the elevation of human dignity; the core idea of human dignity and its link with privacy had already emerged in Europe in the seventeenth century. In Louis XIV’s France, the right to privacy was entrenched with the right to human dignity, albeit only for wealthy aristocrats. As these prominent societal figures had an image and social status to uphold, infringements of their wealthy image were penalized, though rather under a form of ‘disrespect’ instead of privacy as we know it today.”
Whatever the case, what is unmistakably clear is that anything that strips a citizen of their privacy ipso facto strips them of their human dignity. At no time in history, one can safely argue, has the dignity of the human being been under so much danger as during the prevailing age of digital media and with it, digital surveillance through, among others, the use of spyware by modern states as technology becomes the heart of intelligence gathering and political gamesmanship.
The 1995 Constitution of the Republic of Uganda provides for protection of the right to privacy under Article 27 (1) No person shall be subjected to— (a) unlawful search of the person, home or other property of that person; or (b) unlawful entry by others of the premises of that person. Additionally, the supreme law of the land stipulates that no person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.
In light of state use of spyware, the elephant in the room remains and will always be, the sobering distinction between these normative concepts such as privacy being a human right and human dignity being the foundation of citizens’ existence, re-enforced by provisions in domestic and international law, and the obtaining conditions on ground; in every day lived experiences of the subjects and victims of state surveillance.
As Privacy International has noted in their report entitled Stakeholder Report Universal Periodic 26th Session – Uganda: The Right to Privacy in Uganda, “activities that restrict the right to privacy, such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued.”
No legislative stamp
Whereas this is the ideal, incontrovertible evidence out there shows that the state barely has regard for the law in its surveillance operations. Matters are not helped by the fact that telcos and Internet Service Providers (ISPs), for instance, are required by law, specifically under Section 8 of the Regulation of Interception of Communication Act, “to ensure that their services are technologically capable of allowing lawful interception, and in such a way that the target of the interception remains unaware of it.” The idea that a telco or ISP can be complicit in the invasion of a customer’s privacy and assault on their human dignity, did not only receive a legislative stamp from the parliament of Uganda but is also a commonplace reality in Kampala as cases of citizens whose private communications have been intercepted and made public by the state, demonstrate.
Privacy International put it neatly, noting that, as innovations in information technology have enabled previously unimagined forms of collecting, storing and sharing personal data, “the right to privacy has evolved to encapsulate State obligations related to the protection of personal data. It proceeds to add that “a number of international instruments enshrine data protection principles, and many domestic legislatures have incorporated such principles into national law.” Uganda did ratify the International Covenant on Civil and Political Rights (‘ICCPR’) which under Article 17 provides that, “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
In the last few years, the organisation notes, however, “there has been an increased concern of surveillance of political dissidents, human rights defenders, and journalists in Uganda.”
To the extent that this surveillance, more often than not, is done with little or no regard at all, to the legal safeguards put in place by the legislative branch of the government to protect the right to privacy, citizens are effectively at the mercy of the state operatives deploying spyware with impunity. Their human dignity is all but an ideal on paper. In light of just how much capacity the state has built or acquired to be able to unleash surveillance technology on digital devices and platforms of Ugandans, and the fact that the use of such innovations as spyware is done without recourse to the law, it is abundantly clear that the dignity of Ugandans is at its lowest levels in recent history for without privacy, there is no human dignity.