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Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue and its implications on Zimbabwe
Zimbabwe Human Rights NGO Forum
June 11, 2013

Across the globe, innovations in technologies have facilitated communication and free expression, enabling anonymity, rapid information sharing, and cross-cultural dialogues. At the same time, technological developments have increased opportunities for State surveillance and intervention into individuals’ private communications. Surveillance threatens both an individual’s freedom to express themselves, and their right to maintain a private life and private communications.

This was the core message at the side event on the side-lines of the on-going United Nations Human Rights Council 23rd Session, hosted by the Norwegian Ministry of Foreign Affairs, Privacy International and Association of Progressive Communications which sought to address some of the challenges in promoting privacy and freedom of expression in light of new means and modalities of surveillance and technological advances in communications. Panellists also explored opportunities for greater promotion of the twin rights of privacy and free expression by States and UN human rights mechanisms.

The event followed the presentation by the Special Rapporteur on the right to freedom of expression and opinion, of his landmark Report, in the United Nations Human Rights Council which broke its long-held silence about the threat that State surveillance poses to the enjoyment of the right to privacy. Mr La Rue’s Report is clear: State surveillance of communications is ubiquitous, and such surveillance severely undermines citizens’ ability to enjoy a private life, freely express themselves and enjoy their other fundamental human rights. The report marks the first time the UN has emphasised the centrality of the right to privacy to democratic principles and the free flow of speech and ideas.

The Case for Zimbabwe

It is common cause that the twin rights of expression and privacy are repressed in Zimbabwe. However Zimbabwe’s new Constitution which became law on 22 May 2013 contains some sun set clauses that might bring about change. The rights to expression, assembly and association are reaffirmed in articles 58 to 60. More significantly, the language of privacy has finally entered into constitutional discourse. Privacy stands as a right on its own through Article 57, which protects Zimbabweans against arbitrary searches of their person and prevents unlawful entry into their homes, premises or property. It prevents disclosure of health conditions to third-parties and, most importantly for our purposes; it also seeks to stop the infringement of private communications.

In order for the new constitution to bring any real change, however, there must first be whole-scale reform of Zimbabwe’s statute books. There are a number of laws which actively encourage surveillance and the repression of free expression, in particular, the 2007 Interception of Communications Act (“ICA”). Most of these laws, however, cater towards traditional forms of human surveillance. The state uses its security forces to break into properties and search them, or to monitor and disrupt meetings. Informants are employed in order to keep track of the state’s opponents. These forms of surveillance will have to change to meet the demands of the digital age. For, given the remote nature of internet usage, a traditional meeting could in future be conducted over a Skype conference call instead.

Communications surveillance will become the main tool for cutting across the anonymity, rapid information sharing and cross-cultural dialogues of the digital age. Though old in the context of technological innovation, the ICA has kept pace thanks to extremely wide drafting and the creation of blanket powers. Though designed primarily for post and telephone, ICA’s long title states that it can still be applied to ‘any other related service or system’. This provides broad powers to intercept any kind of communication, no matter how technologically advanced it is.

Just as post is intercepted or a phone line is monitored, the state also has the power to snoop on communications travelling by email or across a social network. Having set up a Monitoring of Interception of Communications Centre, manned by ‘technical experts’, and appointed by the Minister of Transport and Communications, the state has the legislative and institutional apparatus in place to subject Zimbabwean’s digital communications to the same surveillance as any other. As the UN Special Rapporteur (A/HRC/23/40) notes, the inspection of emails prior to reaching the desired recipient is still a breach of the right to private communications.

It must be noted however that, with an Opennet estimation of about 11% in 2009, internet penetration in Zimbabwe, though relatively high in Africa, is low by world standards. In 2007 Opennet found no evidence of the state filtering websites. However, a more recent 2012 report by Freedom House reports a huge increase in smart phone usage, especially amongst young people. Between 2006 and 2011 it is estimated that growth of mobile phone has gone from 6.8% to 72.1%. Many Zimbabweans use their phones and some their laptops to browse facebook, the country’s most popular website, and to use whatsapp, a kind of internet multi/media text message service.

However, the worldwide trend of social media being used to express political opinions, and even to form campaigns online, has not been followed with zest by most Zimbabweans. Freedom on the Net reports that, ‘the lack of anonymity…and fear of repercussions limit politically-oriented statements which can be traced back to those expressing them’. Facebook is of course a largely public forum, and there have been instances of Zimbabweans being arrested because of their posts. Where Facebook is concerned the state can still make use of human surveillance techniques. Employing state agents to monitor the pages of human rights defenders and activists, in the form of what the UN Special Rapporteur calls ‘mass communications surveillance’, might still be an effective tool. In addition, state agents can also monitor both data and meta data through subscription to human rights defenders mailing lists under pseudonymous email addresses purportedly hosted in China.

These worries are compounded by the complicity of Zimbabwean Internet Service Providers (ISPs). ISPs are required, under section 9 of ICA, to put in place the hardware and software required for the state to carry out surveillance. Reports in Zimbabwe suggest that at least three of the main Internet Service Providers - Econet, TelOne and Telecontract have complied with this requirement. Other reports, which cannot be confirmed, suggest that the state is buying surveillance technologies from a number of repressive regimes and even UK internet security companies. According to Freedom on the Net 2012 the Postal and Telecommunications Regulatory Authority of Zimbabwe banned the use of Blackberry Messenger because the service uses encrypted messages. This does not comply with the requirement in ICA that ‘all telecommunication services should have the capability of being intercepted.’

On the other hand, there are questions regarding the state’s ability to deal with other forms of encryption and anonymity. These technological developments have enabled a form of ‘WikiLeaks’ to take hold in Zimbabwe. Blogs and pseudonymous articles posted on internet newspapers also provide sources of media which are not controlled by state-dominated monopolies. On Facebook a source of reports about state corruption, published under the handle of ‘Baba Jukwa’, is followed by over 170,000 people. The accuracy of these reports is difficult to confirm or deny, because anonymity means that ‘Baba Jukwa’ is virtually unaccountable. However, the example, if done within legal confines, shows the potential for technology to drive social change, to empower civil society, and to bring about greater state transparency.

Conclusion

The current USA PRISM crisis is not only a spanner in the works towards a world that safeguards the right to privacy but is an interesting challenge that will ensure that the privacy discourse remains on the forefront of policy discourse at local, regional and multi-lateral levels. According to a BBC Report, both international governments and the world's biggest tech companies are in crisis following the leaking of documents that suggest the US government was able to access detailed records of individual smartphone and internet activity, via a scheme called Prism. The ways in which individual governments monitor citizen activity is notoriously secretive in the interests of national security, and officials generally argue that preventing terrorism over-rides protecting privacy. Hopefully the USA will exercise moral courage and global leadership in a way that balances interests of national security and the right to privacy. Stumbling on this issue would be an automatic licence for repressive states to continue on this path of moral turpitude.

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