The Kistnen case has inadvertently exposed the problem of the Safe City project and government control over its data. But the Safe City issue provokes other questions and the Kistnen case might just prove to be the tip of the iceberg about the issues with this project and its impact on civil liberties.

First steps into a surveillance state

The first tentative steps into what would eventually become the Safe City project were actually undertaken by the Labour-led government in 2012 when it handed a Rs 1.1 billion contract to the Singapore Cooperation Enterprise (SCE) to develop a new biometric ID card system for Mauritius. The contract was a government-to-government strictly kept under wraps and done without going through any tendering exercise.

In 2013, the Labour-led government then passed the National Identity Card (Miscellaneous) Provisions Act making it mandatory of have the new biometric ID cards, which would have biometric fingerprints and photographs, as well as amendments to the Civil Status Act allowing the government to simply stock more data on the ID cards without having to come up with a law in parliament beforehand. “This new biometric ID card was Navin Ramgoolam’s baby”, Ram Seegobin of Lalit, which opposed the ID card project at the time, tells l’express.

Right from the outset, the new ID cards were a hard sell: the government at the time argued that the old-style ID cards dating back to 1986 were easy to forge, but the new biometric ID cards would make it more difficult to do that. Two of the examples they used were pension fraud, “this was a ridiculous argument since there are only six or so cases each year not enough to justify billions on a new ID card”, says Dr. Rajah Madhewoo, who entered a case against the new ID project and the second was to prevent electoral fraud.

The great irony was that the 2005, 2010 and 2014 elections were conducted without the new biometric ID card, while the first one using them, in 2019, was riven by allegations of electoral fraud from the same parties that introduced the biometric ID card that was supposed to make it harder to do it. Public opposition to the new ID cards picked up steam after a hard disk being used to store biometric information was reported to have gone missing from a government building and a computer expert Ish Sookun exposed security problems around how the data was being kept. By the end of 2013, the MSM led by Pravind Jugnauth, then in the opposition, swung against the biometric ID card project.

Legal view on biometrics

The opposition to the biometric ID cards ended up in two cases at the Supreme Court, one by Madhewoo and another by Pravind Jugnauth himself, questioning the constitutionality of the government collecting fingerprints for the ID card and then storing them on a central government database. In what has been hailed in a landmark judgment delivered on 29 May 2015, Eddy Balancy, who heard the case at the Supreme Court, ruled in favour of Madhewoo.

What Balancy decided was that “the provisions in the National Identity Card Act and the Data Protection Act for the storage and retention of fingerprints and other personal biometric data collected for the purpose of the biometric identity card of a citizen of Mauritius are unconstitutional”. Simply out, although it was okay for the government to collect fingerprints to produce the new ID cards, it was unconstitutional for the government to maintain a database holding all that biometric fingerprint data.

The same conclusion was reached in Jugnauth’s own case at the Supreme Court that was delivered by Balancy on the same day. The Supreme Court’s conclusions were seconded by the Privy Council in October 2016. “The reason I brought the case was because I felt that my fingerprints were personal to me and should not be on an ID card or a government database”, explains Madhewoo.

By the time the judgments came out in 2015, the MSM was in government. And what resulted was a strange compromise: Since the state had already blown Rs 1.1 billion on the fancy new cards, they could not just be gotten rid of. But in keeping with the court’s view on biometrics, fingerprints would continue to be collected but only to produce the ID card and the database storing all the biometric fingerprints of more than 900,000 people was subsequently erased. An operation that cost another Rs 23 million.

MSM’s U-turn

Despite its opposition to the biometric ID card, in 2017, the MSM embarked on an even-more ambitious project, the Safe City. A network of 4,000 cameras equipped with facial recognition technology supplied by the Chinese company Huawei dotted around the country. The great irony is that government’s ambition to develop the Safe City project would not have been possible without the biometric information being stored on the ID cards that the MSM fumed against previously.

The problem is that the Supreme Court cases previously dealt with biometric fingerprints being stored by the government, but the problem is that the ID cards were also being used to capture and store biometric photos of people when they apply for the card. “What was destroyed was the database for fingerprints, but they are still collecting biometric photos”, argues Seegobin.

There has been much debate on the civil liberties aspect of the Safe City project, says lawyer Jean-Claude Bibi. “It is not surprising that the same party that opposed the ID card has now come up with Safe City, such dramatic changes in position are a recurrent feature of Mauritian politics.” He adds that he opposes such measures because in his view the liberties of the individual trump the needs of a state, “knowledge is power and knowledge about the individual in the hands of the state is a problem”, argues Bibi.

Amazingly, the opposition parties have argued that the Safe City project can be used to keep tabs on and retaliate against political opponents and their supporters: exactly the same argument that Pravind Jugnauth and his lawyers were themselves making during hearings in the Supreme Court against the ID card project. The difference being that the parties have switched sides in the same debate.

There has been much debate on the civil liberties aspect of the Safe City project, says lawyer Jean-Claude Bibi. “It is not surprising that the same party that opposed the ID card has now come up with Safe City, such dramatic changes in position are a recurrent feature of Mauritian politics.” He adds that he opposes such measures because in his view the liberties of the individual trump the needs of a state, “knowledge is power and knowledge about the individual in the hands of the state is a problem”, argues Bibi.

Amazingly, the opposition parties have argued that the Safe City project can be used to keep tabs on and retaliate against political opponents and their supporters: exactly the same argument that Pravind Jugnauth and his lawyers were themselves making during hearings in the Supreme Court against the ID card project. The difference being that the parties have switched sides in the same debate.

Kistnen and the Constitution

The current government has sought to dampen criticism of the Safe City project by boasting of its record in fighting crime. In 11 August 2020, Prime Minister, Pravind Jugnauth, boasted in parliament that the cameras of the Safe City system had helped detect 101 crimes.

That however has proved to be hollow with the alleged murder of MSM agent Soopramanien Kistnen, in which a judicial enquiry is currently underway. Despite Jugnauth’s previous statements that it would only be the police handling the data from the Safe City cameras, the proceedings of the judicial enquiry exposed footage that went missing from the Safe City system and, worryingly, that the data from the Safe City project is very much in the hands of the government.

On 9 June 2020, and on other occasions as well, Jugnauth stated that the police controls the Safe City data going on to explain that a Deputy Commissioner of Police is recognized as the official data controller for the project. During hearings in the judicial enquiry, however, the police pointed to Mauritius Telecom. And Mauritius Telecom, in turn, on 10 December 2020, in a statement, announced that the Safe City data was actually being stored at the Government Online Centre, which falls under the National Computer Board, which in turn falls under the authority of the ICT ministry.

“There is a clear contradiction here, who is actually in charge and has access to this data?” asks Bibi. Clearly the government’s previous statements that only the police controls information from the Safe City project is not true, “this has been exposed publicly now, and this is a real civil liberties issue that is staring us in the face and lots of people don’t seem to understand that”, argues Seegobin.

Here is Labour Party parliamentarian Osman Mahomed: “The problem with all this lack transparency is that we are learning new things each time, now we discover that the NCB is involved, on what basis was it chosen and is it equipped to properly keep this da- ta, what else is being kept hidden by the authorities about this project? There are so many questions about this and should we wait for another unfortunate event to happen to learn more about how our personal and private data is being handled by the government?”

The problem just not stops with the Kistnen case. But it raises another, much broader, question: that of the biometric facial technology that lies at the heart of the Safe City project.

Huawei, the firm that supplied the equipment, boasts that the facial recognition features that the Safe City system is capable of “exceeds 95 percent”. “The ID card is actually being used to keep biometric information from photos of citizens, the question is does the government intend to use the facial recognition technology eventually and if so, what is the database it will be using?” asks Mahomed.

At present, the government is denying that the ID card has anything to do with the Safe City system: on 30 June 2020, Jugnauth told parliament that “the data available on the data- base of the MNIS for the National Identity Card (NIC) and the Central Population Database (CPD) are not being used in any component of the Safe City Project”. The problem, however, is that government is intending to press ahead with activating the facial recognition component of the Safe City system, and this came in a series of answers in parliament that got little attention at the time.

On 9 June 2020, in a written answer to a question from the PMSD’s Kushal Lobine submitted to parliament, Jugnauth explained that the facial recognition features of the Safe City project “will be used for tracking the movements of wanted persons, habitual criminals and missing persons. It will also be used after a crime has been committed. The pictures of these categories of people will be uploaded on the system database by trained and authorized Police Officers. Then only the Face Recognition Technology component of the Safe City Cameras will be put to use”. In another session of parliament, on 11 August 2020, he went further and explained that should the facial recognition features be used, “there will be need to be have, I believe, data banks, in order to be able to match them and to be able to identify people” (sic).

The question that now arises is this: if in the case of Madhewoo contesting the ID card, the Supreme Court (and, subsequently, the Privy Council) held that keep biometric fingerprints on citizens on a database for the ID card was unconstitutional, how on earth can it be constitutional to set up another separate data- base for biometric photographs collected from that same ID card for the Safe City project?

And the government should know this: after all, this was what the Supreme Court said in Pravind Jugnauth’s own case against the biometric ID card. “I am sure that there will be groups of citizens and lawyers who will be looking to challenge the Safe City project on the same grounds as the ID card, it’s an interesting question and I am sure it will crop up”, concludes Bibi.

The questions that the Kistnen case has provoked about how the Safe City system works may prove to be just the tip of the iceberg.