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This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
Analysis
of the Interception of Communication Bill 2006: Interception and
deception!
Jacob Mapfume
for MISA-Zimbabwe
April 21, 2006
This analysis
may be reproduced and used in any research, advocacy, educational
and lobby work, except for profit, with the acknowledgment of MISA-Zimbabwe.
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Background
Zimbabweans have witnessed the promulgation of a number of, repressive
laws, which have contributed to the shrinking of the democratic
space and the operating environment of human rights defenders and
activists. The introduction of the Interception
of Communications Bill (hereinafter the Bill) adds to the number
of laws, which have attacked the enjoyment, and furtherance of human
rights in Zimbabwe, in particular freedom of expression and right
to receive and impart information among other rights. The following
analysis gives simplified understanding of the implications of passing
such a law in its currents state and requirements and obligations
of the government of Zimbabwe in terms of its constitutional, international
and regional human rights law obligation.
SUMMARY OF THE BILL AND INTRODUCTORY OBSERVATIONS
Part 1 & 2
The object of the Bill as stated in the introductory memorandum
and the long title, is to give effect to Interception of Communications
Monitoring Center, shall have the mandate to implement the provisions
of the Bill, thus to intercept communications in the course of their
transmission through either telecommunications, postal emails and
any other related service.
Part 3
The Bill specifies the persons who shall have authority to make
applications for interception of communication. Certain officers
who are directly under the Office of the President or Executive
are empowered to make applications for authorized interceptions
of communications; these individuals include the Chief of Defense
Intelligence, the Director- General of the President’s Department
of the National Security, The Commissioner of Zimbabwe Republic
Police and the Commissioner General of the Zimbabwe Revenue Authority.
The above persons who occupy critical offices in terms of economic
and political security of the state can make representations to
the Minister (of Transport and Communications or any other Minister
to whom the functions can be assigned by the President) for conducting
of interceptions. A warrant of interception is granted on reasonable
grounds or belief that a serious offence has been or is being or
will be committed or that there is a threat to safety or “national
security” of the country or the information might be of compelling
national economic interests of the country. National security of
Zimbabwe includes matters relating to the existence, independence
and safety of the state. The warrant lasts for 3 months and can
be renewed every month until such a time that the intended interception
has been undertaken. The powers granted to the security officers
in this Bill are subject to judicial scrutiny, however there are
high probabilities abuse of power by targeting organizations and
individuals. This Bill will obviously target legitimate political
activists and organizations that have been targeted in the past
by state institutions and laws . Such provisions are in clear violation
of the right to freedom of expression and privacy as stipulated
in Constitution of Zimbabwe and various supra national human rights
instruments which Zimbabwe has ratified.
The Bill states that information, which has been intercepted, shall
not be disclosed to any other person except, where the information
is required in any proceedings in any court of law.
Part 4
The Bill also provides for general prohibitions and exemptions from
disclosure of any information that is obtained in the exercise of
duty in terms of the Bill. The Bill allows only authorized persons
that execute the interception of communication to disclose to extend
the proper performance of duties. It authorizes the destruction
as soon as possible the information that shall be intercepted.
The Bill states that the authorized persons can apply for the detention
order to detain any postal article which they suspect contains anything
in respect of which an offence or attempted offence is being committed.
The Bill does not specify the nature of offences or grounds that
are deemed a threat to national security, this adds to a plethora
of laws that have been enacted under the guise of being “a
state under siege”. The ambiguity will give them, ground to
intercept the communications on unreasonable grounds, which are
not reasonably justifiable in a democracy. The grounds under which
an application for interception can be made are open to abuse thus
a broad array of offences, which leaves many members of civil society
at arms way, and thus run the risk of having their communications
intercepted, recorded and used in courts of law against them.
It is important for Parliament and the citizens that are going to
be subjected to this Bill to conceptualize the right to freedom
of expression and privacy under the various provisions of the International
Covenant on Civil and Political Rights, the African Charter on Human
and Peoples Rights and the Universal Declaration of Human Rights.
While factoring and debating the substantive and procedural as well
as the protectionist attributes of the Bill it should do so in light
of minimum standards that are universally acceptable and as set
out by international human rights declarations.
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