Back to Index
This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
forges ahead with Big Brother legislation
Clemence Manyukwe, The
November 24, 2006
GOVERNMENT is forging ahead with the
proposed spying legislation after drafting a new version of the
of Communications Bill that has failed to fully address the
concerns of the Parliamentary Legal Committee and stakeholders in
the communications sector.
Government withdrew the initial Bill
under pressure from the PLC that is chaired by constitutional law
expert and MDC MP Welshman Ncube and protests by stakeholders in
the communications industry at a Parliamentary Portfolio committee
on Transport and Communications hearing, amid promises of a new
version that would address their concerns.
The new consolidated version obtained
by the Zimbabwe Independent this week shows that changes made to
the original text are minor to the extent that, overall, the latest
version retains its repressive nature.
The new version still says: "An application
for the lawful interception of communications may be made by the
following persons - the Chief of Defence Intelligence or his or
her nominee, the Director-General of the President’s department
responsible for national security or his or her nominee; the commissioner
of the Zimbabwe Republic Police or his or her nominee, the commissioner
general of the Zimbabwe Revenue Authourity or his or her nominee."
Communications minister, Chris Mushohwe
and the Attorney-General Sobusa Gula-Ndebele met the PLC last month
resulting in the committee not presenting an adverse report on the
Bill in anticipation of an improved version.
In its draft report, the PLC said the
old version’s problematic areas were: clauses 3(1) (b) (i); 4; 5;
6; 8 and clause 18.
In the consolidated text clauses 3(1)
(b) (i); 4 and 5 have been retained as they are despite the PLC
draft adverse report having said: "It is clear, Mr Speaker Sir,
that the provisions of all these clauses individually and collectively
interfere with citizens’ right of protection from interference with
Whereas in the old Bill, aggrieved
persons were required to appeal first to the minister and then to
the Administrative Court, in the new version appeals are made straight
to the Administrative Court that "may confirm, vary or set aside
the warrant, directive or order appealed against".
Although the previous version gives
a list of people in Clause 5 who may apply for a warrant as well
as nominees, the draft Bill said: "The Bill does not provide for
the criterion for selecting the nominee, it does not limit the circumstances
in which the minister may delegate this function and does not provide
a procedure for affecting the nomination." That observation was
Although on Clause 6 oral applications
to the minister for the issuance of warrants no longer apply, the
new version has not addressed the committee’s concerns as it still
says that the minister may issue warrants "on reasonable grounds".
On that issue the PLC draft report
had said: "In issuing this warrant, the minister acts alone…The
reasonable grounds need therefore exist only in the mind of the
minister. This is an incredibly subjective criterion, which means,
in effect, that the minister has unfettered discretion in the matter."
The PLC draft report said there are
no safeguards against the minister abusing his power in issuing
warrants. In the new version, the government’s solution was to come
up with provisions for the review of the minister’s exercise of
his powers to issue warrants by the Attorney-General. After that
review the Bill says "the Attorney-General may make recommendations
in writing to the Minister concerning the manner in which the Minister
shall exercise his or her powers in future".
In its draft report the PLC had said
such controls "should normally be assured by the judiciary, which
offers the best guarantees of independence, impartiality and proper
Apart from this, in its presentation
to the Parliamentary Portfolio committee on Transport and Communications
the Zimbabwe Internet Service Providers Association also proposed
It also said in other countries
with similar legislation warrants are issued as a result of some
Clause 8 still provides that evidence
obtained by means of an unlawful interception may be admissible
in court if the court deems that there are compelling reasons to
allow its admission, although the PLC had expressed reservations
Although on clause 18 the Bill says:
"Any person aggrieved by a warrant, directive or order issued" may
appeal to the Administrative Court, that also falls below the committee’s
concerns. The committee had wondered how the individuals would appeal
against the issuance of the appeals when they have not been told
by the minister in the first place that the warrants had been issued.
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.