PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

FRAMEWORK LAW NO. 013-2002 OF 16 OCTOBER 2002 ON TELECOMMUNICATIONS

Articles 54(a) and 55 of the Framework Law No. 013-2002 of 16 October 2002 on telecommunications in the DRC (“Framework Law”) provides for the interception of communications in two scenarios: firstly in the context of judicial cases where an authorisation has been granted by the Attorney General of the Republic (“Attorney General”); and secondly interceptions authorised by the Minister of the Interior in relation to national security, protection of the essential elements of the scientific, economic and cultural potential of the country, or the prevention of crime and organised crime.

Article 54(a) of the Framework Law prohibits the interception, phone-tapping, recording, transcription and disclosure of correspondence issued by telecommunications without prior permission of the Attorney General. Article 55 of the Framework Law stipulates that for the purpose of providing evidence in a court of law, it is necessary for the Attorney General to order the interception, recording and transcription of correspondence transmitted through telecommunications.

Article 59 of the Framework Law requires that interceptions authorised by the Minister of the Interior must have a purpose to: (i) seek information relating to national security; (ii) protect the essential elements of the cultural, scientific or economic potential of DRC; or (iii) prevent crime and organized crime.

DISCLOSURE OF COMMUNICATIONS DATA

Article 13 of the Standard Licence for provision of mobile communications services based on GSM technology provides that each Telecommunication Company shall submit on a monthly basis to the Authority for Regulation information concerning the following:

  • the number of subscribers at the end of each month;
  • the average call time;
  • the total number of billing items;
  • the number of calls from mobile telephones to fixed-line telephones, and from fixed-line telephones to mobile telephones;
  • the disconnection rate;
  • the BSC-number dynamics;
  • the quantity and RF channel number via BTS; and
  • the BTS number dynamics.

THE FRAMEWORK LAW

Article 52 of the Framework Law provides that the secrecy of correspondence transmitted through communications is guaranteed by law in the DRC. The confidentiality of correspondence can only be lifted in cases where it is strictly in the public interest as provided by the law.

Article 53 of the Framework Law reinforces this by stating that the public operator of telecommunications and other telecommunications service providers and members of their staff are required to respect the secrecy of customers’ communications.

Article 4 of Law No. 014-2002 creating the Regulatory Authority for Post and Telecommunications of the Congo, (“ARPTC Law”) states that the Regulatory Authority can conduct site visits, conduct investigations and studies, and collect all the necessary data required for this purpose.

NATIONAL SECURITY AND EMERGENCY POWERS

ELECTRONIC COMMUNICATION LAW

Article 8 (rr) of the Electronic Communication Law states that it is one of the duties of the Authority on Postal and Electronic Communication (the “Authority”) to undertake any measure or order in relation to the operators of public electronic communications to implement their obligations related to the protection of the interest of the country, of the public order and during war or extraordinary situations.

Under Article 111 of the Electronic Communication Law, operators are obliged, with their own networks and services, to face the state needs in extraordinary situations, and when requested to serve to the national defence and public order interests.

The operators providing access to the public electronic communications networks and providing electronic communications services available to the public shall develop and submit to the Authority a plan of measures to ensure the integrity of the public communications networks and to ensure access to their public communications services in extraordinary situations.

The Electronic Communication Law defines extraordinary situations as serious damages to the network, natural disasters, state of emergency or state of war. The Authority’s orders oblige operators to implement emergency measures throughout the duration of the extraordinary situation. The relevant Minister, in cooperation with the other agencies legally authorised to cope with extraordinary situations and with the Authority on Postal and Electronic Communication, propose to the Council of Ministers the measures to be included in the notices issued to the operators.

Additionally, under Law No. 8756, dated 26.3.2001 “On civil emergencies”, government authorities have the right to use any private or public means or to cooperate with organisations related to emergency situations, in order to avoid or limit consequences from disasters in accordance with the applicable laws, as long as such circumstances exist. This provision can be interpreted as to also be extended to a range of actions towards the network of electronic communication operators in national security orders or in civil emergencies.

OVERSIGHT OF THE USE OF THESE POWERS

This authorisation of the Attorney General applies for a maximum period of six months unless renewed. The authorising decision for interception by the Attorney General should include the reasoning for use of interception, the offence leading to the use of the interception and its duration (Article 56 of the Framework Law). This authorization of the Minister of the Interior shall be given in writing and by justifiable decision. The authorization must be proposed by the Minister of Defence and security or proposed by the Head of the Intelligence services (Article 60 of the Framework Law).

Any breach of Article 52 of the Framework Law constitutes an offence in respect to Criminal Code in DRC.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

TELECOMMUNICATIONS FRAMEWORK LAW NO.013/2002

Article 46 of the Telecommunications Framework Law No.013/2002 provides that the State may prohibit the use of telecommunication facilities (such as Vodacom’s network), in full or in part, for any period of time, as it deems fit, in the interests of public security or national defence, the public telecommunications service, or for any other reason.

More generally, under Article 42 and 50, the government may revoke (temporarily or permanently) the licence of a telecommunications operator (such as Vodacom) if the operator does not comply with the conditions of its licence; does not comply with the legislation in force; or refuses to grant access to its network facilities to officers of the Criminal Investigation Department (who are responsible for investigating breaches of the law) when such access is requested. Under Article 43, the government may also withdraw an operator’s licence if the telecommunications operator becomes wholly owned by foreign nationals. If the government were to withdraw Vodacom’s licence, this would in effect shut-down Vodacom’s network.

MINISTERIAL DECREE NO.003/CAB/MIN/PTT/K/2000

In addition Ministerial Decree No.003/CAB/MIN/ PTT/K/2000 dated 31 January 2000 allows the Ministry of Telecommunications to suspend the services of the network operator (in full or in part) pursuant to the order of a public authority. If needed, the public authorities and in particular the Ministry of Defence can “requisition the network” without giving rise to any claim for compensation. This Ministerial Decree is superseded by the Telecommunications Framework Law No.013/2002 however it is considered relevant to licenses issued before the passing of the Telecoms Framework Law No.013/2002.

CONSTITUTIONAL POWERS

Article 85 of the Constitution provides that the President of the Republic may declare a state of emergency or state of war when circumstances threaten seriously and immediately the independence or the integrity of the national territory or when they cause the interruption of the normal functioning of institutions. The President may only do so after consultation with the Prime Minister and the presidents of the two Parliament chambers. Such a declaration is done by Decree and will last for 30 days duration, which may be extended by the Parliament for successive periods of 15 days. Certain additional powers are enabled during such a period which may extend to ordering the shut-down of a network such as Vodacom’s. However in practice Article 46 of the Telecommunications Framework Law No.013/2002 is more likely to be relied upon given the breath and strength of its powers.

BLOCKING OF URLS & IP ADDRESSES

TELECOMMUNICATIONS FRAMEWORK LAW NO.013/2002

Given the nature of the powers provided under Article 46 of the Telecommunications Framework Law No.013/2002 – in particular those described directly below under ‘Power to take control of Vodacom’s network’, it is feasible that the government might order, or implement, the blocking of URLs and IP addresses on Vodacom’s network.

POWER TO TAKE CONTROL OF VODACOM’S NETWORK

TELECOMMUNICATIONS FRAMEWORK LAW NO.013/2002

With the powers provided for under Article 46 of the Telecommunications Framework Law No.013/2002 (please see above under ‘Shut-down of network and services’), the State may also requisition (or order its officials to requisition) telecommunication facilities. In such instances, the personnel normally working at these facilities may be required to provide their services to the competent authority, if so-requested. This could in effect mean that the government could take control of Vodacom’s network, requiring Vodacom staff to operate the network on its behalf.

OVERSIGHT OF THE USE OF POWERS

TELECOMMUNICATIONS FRAMEWORK LAW NO.013/2002

There are a posteriori (after the event) possibilities for judicial oversight and the annulment of illegal use of powers with respect to the Telecommunications Framework Law 2002. The Supreme Court may be seized of an action for annulment for excess use of power in respect of any administrative decisions issued by central government authorities on the grounds of incompetence, defect, violation of the law or misappropriation of power and procedure. These are grounds that individuals may invoke to obtain the annulment of an illegal order to shutdown network or services.

OVERSIGHT OF THE USE OF POWERS

TELECOMMUNICATIONS FRAMEWORK LAW NO.013/2002

There are a posteriori (after the event) possibilities for judicial oversight and the annulment of illegal use of powers with respect to the Telecommunications Framework Law 2002. The Supreme Court may be seized of an action for annulment for excess use of power in respect of any administrative decisions issued by central government authorities on the grounds of incompetence, defect, violation of the law or misappropriation of power and procedure. These are grounds that individuals may invoke to obtain the annulment of an illegal order to shutdown network or services.

CONSTITUTIONAL POWERS

Since the installation of a Constitutional Court in 2013 (although it is not yet operational), appeals may also be effected against unconstitutional use of power by the administrative authorities, making such use of power invalid or unenforceable.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

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