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to spy on cellphones
October 01, 2013
with effect from today, permitted its security agencies to spy into
people’s telephone call records, text messages and Internet
This has been
done through the enactment of Statutory
Instrument 142 of 2013 on Postal and Telecommunications (Subscriber
Registration) Regulations, 2013, which was gazetted last Friday.
government could only have access to people’s phone records
when it was absolutely necessary, usually when following up criminal
or other serious offences. In such cases, permission had to be sought
through the court which would grant court orders for such interception
after satisfying itself there were justifiable reasons to do so.
yesterday said the newly-gazetted laws would be, in fact, illegal
according to the Constitution
of Zimbabwe. The experts said the gazetted new law was not in harmony
with Section 57 of the Constitution as it infringes on people’s
several rights including the right to privacy of communication.
the Statutory Instrument, telecommunication companies are now required
to set up a central subscriber data base for all users from which
information about subscribers would be released to law enforcement
agents on demand.
could also be released for educational and research purposes.
The law also
compels companies to disclose subscriber data upon receiving a “written
request signed by a law enforcement agent who is not below the rank
of Assistant Commissioner of police or a co-ordinate rank in any
other law enforcement agency”.
notice to be issued by the law enforcement agency pursuant to subsection
(2) shall indicate the rank of the official of the law enforcement
agent, and the purpose for which subscriber information is required,”
section 9 (3) of the Statutory Instrument reads.
companies will no longer be allowed to activate any SIM card that
is not fully registered, the law says. Providing false information
upon registering a SIM card, such as regarding one’s residential
address, is now an offence.
the new law, the creation of the database shall “assist law
enforcement agencies or safeguarding national security”, “assists
with the provision of mobile-based emergency warning system”
and “authorise research in the sector”, among other
With only the
signature of an Assistant Commissioner or higher rank now required,
legal experts said the system could be grossly abused. There are
no mechanisms within the law to protect the ordinary person against
abuse by those authorised to snoop.
the word “purpose” was too wide, general and without
justification to an adjudication board that could assess the validity
of the reasons such information may be required.
They said a
more strict way like the use of the judiciary as was the case in
the past was the only way subscribers could be protected.
the decision to release information is now between the police and
the service provider. There is no adjudicating body playing a judicial
function. There should be a quasi-judicial body to play the role
of guaranteeing the rights of the people. Without an adjudicating
authority, the subscribers will be exposed,” said a lawyer
who preferred to remain anonymous.
law does not specify under what circumstances it should be legal
to divulge such information. The motive is good to combat crime,
but my fear, which will also be everyone else’s, is that the
law will not be used only to meet such a purpose.”
of Communication Act, Chapter 11:20, it used to be cumbersome
to get a warrant to access subscriber call records, while interception
would need the approval of the minister administering the Postal
and Telecommunications Act, the Police Commissioner-General and
the Director-General of Intelligence.
A court magistrate
would decide on whether the police could be given a warrant to access
is not constitutional. It is not justiciable. For example, how do
you use subscriber information for research? Will this be by the
consent of the subscribers? We will end up having a lot of cases
where law enforcement agents will be paid to track unfaithful spouses,”
said another lawyer.
lawyer Chris Mhike said government should strike a balance between
subscriber needs and its need to combat crime and terrorism.
He said the
greatest weakness was the new law’s failure to allow information
to be subjected to judicial scrutiny, which is the most competent
forum for determining compliance with any law.
Section 9 (4) of the Regulations forbids release ‘where such
release of subscriber information would constitute a breach of the
Constitution of the Republic of Zimbabwe (and) any other enactment
. . .’ there are no clear guidelines as to the circumstances
that would amount to constitutional breaches,” Mhike said.
release of information to be fair and reasonable in a constitutional
democracy, it must be a precondition that a court order be secured.
Since that precondition is missing, this latest legislation remains
highly susceptible to abuse and misuse from authorities and those
with access to the central subscriber data base.”
He added: “The
fact that in terms of Section 8 (13) of the Regulations ‘any
person who is aggrieved by any unlawful use of his personal data
shall have the right to seek legal redress’, does not cure
the monumental flaws of the statutory instrument. The damage would
already have been inflicted, possibly to irreparable levels. In
its present form, Statutory Instrument 142 of 2013 is an inherently
bad and dangerous law.”
rights lawyer Alec Muchadehama said he would have preferred a situation
where the courts had the discretion on whether access to call records
can be allowed.
of search can be abused by the police,” Muchadehama said.
Recently, there was an uproar in the United States after leaks by
intelligence operator Edward Snowden showed that the government
was snooping on virtually every citizen. In South Africa, a similar
law had to be withdrawn after a public outcry.
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