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Supreme Court bars Mugabe e-mail snooping
From The Daily Mirror
March 16, 2004

THE Supreme Court, sitting as a full bench, declared last week as unconstitutional legal provisions that gives the president powers to eavesdrop, including the powers to intercept mail, telephone conversations and other such electronic telecommunications devices.

The superior court upheld contentions by the Law Society of Zimbabwe (LSZ), a grouping of lawyers who had filed the constitutional application arguing that the presidential powers provided for by the Posts and Telecommunication (PTC) Act violated section 20 of the Constitution.

The lawyers were challenging section 98 and 103 of the PTC Act, which gives president powers to intercept mail, telephones, e-mail and any other form of communication. The Act also gave powers to the president to give any directions to a licensee requiring him or her to do or not to do a particular specified action.

Section 20 of the Constitution provides for freedom of expression, freedom to receive and impart ideas and freedom from interference from one's correspondences.

LSZ's lawyer, Advocate Adrian de Bourbon had argued that the PTC Act allowed the president to act in his opinion in the interest of "national security" and "in the maintenance of law and order" and need only to consult his Minister, whose views he is not obliged to take into account.

"In effect, the legislation gives to the President an unfettered ability to intercept mail and communications with absolutely no safeguard whatsoever to protect the innocent," said De Bourbon. "The absence of any restrictions and in particular the absence of any judicial determination points beyond doubt to the over-breathe of the power given to the president. There is no arbiter as to whether a matter is subject to national security other than the subjective view of the president."

It was also submitted that the norm was so imprecise that no person could regulate his conduct to avoid running the risk that the president would subjectively form the opinion that mail or other communication from that person should be intercepted in the interest of national security.

The lawyers submitted that the provisions under challenge interfered with the lawyer-client privilege, which would put at risk the privilege of such communication.

They said they feared that legal practitioners could prejudice their clients and betray confidence if they used the postal system and yet the legal practitioner-client privilege was fundamental in the proper administration of justice.

In response, Yvonne Dondo of the Attorney General's Office submitted that while it was conceded that the provisions interfered with one's enjoyment of the freedom of expression, it was a permissible derogation.

She submitted that the Constitution authorised derogation of freedom of expression in the interest of defence, public safety, public health, economic interest, public morality and public health.

She said the test for constitutionality of permissible derogation in terms of section 20 of the Constitution was whether they were reasonably justifiable in a democratic society.

Dondo had drawn the court to observations once made by the court with regard to what was reasonably justifiable in a democratic society, where the court had this to say:

"What is reasonably justifiable is an elusive concept. It is one that defies precise definition by the courts. There is no legal yardstick save for the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed rights according to the standards of a society that has proper respect for rights and freedoms of the individual."

Dondo submitted that the present case passed the test set out above. "The legislative objective to allow the president to intercept mail or give directions to licensee in terms of the Act is to ensure that national security is preserved," she said.

"Maintenance or preservation of national security is sufficiently important to justify limiting a fundamental right."

The case was heard before Chief Justice, Godfrey Chidyausiku, Vernanda Ziyambi, Misheck Cheda, Luke Malaba and Elizabeth Gwaunza.

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