Written by: Robyn Pasensie and Isam Bartlett

As South Africa has moved to lower lockdown levels restrictions on movement have lessened, and with it has come the documentation of personal information for Covid-19 tracking and tracing. Businesses are now required to keep a record of persons entering their establishments.

But what are the implications of this on our constitutional right to privacy? Whereas the recording of personal information is a practical and a necessary one, what happens to that information when this is all over and does tracking and tracing fit within the frameworks of our constitution?

Transparency and accountability are some of the founding principles of democracy. Transparency is a way to ensure that governments are open about their actions, roles and functions. It is a measure to hold public officials accountable for what they do and to be accountable to their constituents. This means governments and public officials should be expected to justify their actions and act in accordance with the constitution.

By governments showing this, it reaffirms that the principles of democracy are central to their decision-making process. This is especially true in the case of the Covid-19 measures adopted.

Although our attention may be with the immediate concerns and consequences of Covid-19, civil society continues to work to bring attention to other issues that run parallel to those of the pandemic such as housing, poverty and unemployment.

If Covid-19 has shown us one thing it is that information saves lives and people want to know and understand the measures enacted for their protection. If people understand why a certain action is necessary they could be more likely to implement those changes.

South Africans enthusiastically embraced the hard lockdown when it was announced by President Cyril Ramaphosa as the swift action necessary to curb the spread of the virus.

As the lockdown wore on, however, people began to question whether the measures were accurate and necessary and were calling for more insight into the decision-making process. This very principle is enshrined in our constitution, which mandates transparency as a basic and fundamental practice for good governance.

In this time of increased uncertainty, it has become more important to create opportunities for transparency and unimpeded access to information.

Fundamental to exercising one’s right to information is the right to vote, which has been thrown into disarray given the restrictions of the Covid-19 pandemic.

The general lack of transparency regarding the lockdown regulations had resulted in a constitutional challenge before the high court in Pretoria. The court subsequently declared that certain lockdown regulations were irrational and unconstitutional and ordered the state to amend the regulations. Yet, legal experts have been critical of the judgment and have described it as flawed.

In his ruling, Judge Norman Davis ruled in favour of the Liberty Fighters Network, which brought the motion to the court, stating that aspects of the lockdown were irrational and constitutionally invalid. Fourteen days was granted for those aspects deemed invalid and irrational to be amended.

But some of South Africa’s leading legal minds such as Pierre de Vos labelled the court case as being “badly litigated”.

As a result of the pandemic, governments around the world are processing tons of personal information as part of contact tracing. This mechanism entails identifying and monitoring individuals who have come into contact with a person infected with the coronavirus.

In South Africa, the legislation safeguarding the personal information of individuals, the Protection of Personal Information Act (Popia) only came into effect on 1 July.

The Information Regulator, which is the statutory body responsible for monitoring compliance with Popia, has previously acknowledged the fact that not all sections of Popia had come into effect prior to the announcement of the lockdown and has called on the people or institutions responsible for contact tracing to proactively comply with the provisions of the Act.

South Africa has published new contact tracing regulations to establish an electronic Covid-19 tracing database, which will aggregate the personal information of people who are known or suspected of having come in contact with a person who has contracted the virus.

The obligation on governments to protect the personal information of citizens should be more stringent during the pandemic because of the large amount of confidential data being processed to locate people who may be infected with the virus.

To widen the reach of its contact tracing, the government has established an app called Covid Alert SA. The app alerts a user who could have come into contact with a person who has Covid-19 by tracking the proximity of the user’s smartphone.

Although there have been ethical concerns regarding the security of users’ personal information in the app, the government stressed that security and privacy of users’ functions has been a major consideration and has formed part of the core framework of the app.

Privacy advocates are concerned about what happens to the vast amount of information collected once the pandemic comes to an end. This includes private companies who collect your information when you enter their premises.

In the absence of proper transparency and consultations with the public the information collected by the app can be easily repurposed for the post-pandemic world.

The state bears the onus to ensure that the personal data is collected, stored and disposed of in a manner that respects people’s rights and balances the limitations imposed on these rights by the pandemic fairly and justifiably.

The information should not be repurposed and sold once the pandemic ends. If that occurs then the state has to hold individuals or groups responsible and accountable for their actions.

There is no clear indication of when the pandemic will come to an end, transparency and the right to privacy should be protected because it can be a valuable tool in the fight against Covid-19 while also allowing us to hold government officials accountable.

Every aspect from decision-making processes to privacy and information concerns should be considered and conducted in a transparent manner.

This piece first appeared in the Mail & Guardian.