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Interception of Communications Bill - Index of articles
Interception of Communications Bill: The Constitutionality of the
April 21, 2006
This draft Bill
has been gazetted. Read the Interception
of Communications Bill, 2006 (H.B. 4, 2006)
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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This is an inquiry into the constitutionality of the interception
of citizens’ private mail and telecommunication-related activities,
by the government, as provided in the Draft Bill.
Interception connotes interference, obstruction, and stoppage of
flow, seizure, and grabbing, among other negative processes. Communication
involves the imparting or exchange of information, ideas, or feelings.
This can be done via verbal, physical, electronic, written, telephonic,
virtual or other various available channels. The Draft Bill targets
“telecommunication, postal or any other related service system”,
which means practically all forms of communication.
This discussion proceeds from the premise that Zimbabwe is a free
and democratic society. After all, as they say, the impetus behind
the war of liberation was the quest for freedom and democracy for
all Zimbabweans. In the first place, the reigning government came
to power in 1980, via a democratic process.
The government is in power on claims that it was democratically
elected into office, by free citizens. After all, isn’t freedom
and democracy the essence of the annual Independence celebrations
that both the ‘equal’ and the ‘more equal’
Indeed, it has been proven in many countries that the governance
of people in almost all societies is best optimized under a democratic
configuration. It is also true for many that the potential of an
individual or a society, best matures into reality, where freedom
Constitutionality and Reasonableness
The above introductory statements set out the framework within which
governance is discharged, or should be discharged in a country,
more so how citizens’ rights are bestowed and ought to be
The subject of this analysis … constitutionality … is
one of those ambient factors that are fundamental to the sustenance
of a democratic society. In a democratic society, decisions, actions,
plans, operations and laws, all have to be constitutional.
The reference to constitutionality then makes it absolutely necessary
to also deal with the concept of ‘reasonableness’. That
is to say relevant things must be “reasonable” in a
“democratic society”. It is only these two variables
– ‘constitutionality’ and ‘reasonableness
in a democratic society’ that informs the analysis of the
Interception of Communications Bill.
Constitutionality – refers to the extent or degree
to which a particular statutory or administrative provision is consistent
with a constitution. This concept should be differentiated from
constitutionalism, which means that statutory, administrative
and other forms of provisions must be crafted in compliance with
the basic principles, spirit, or system of governance in accord
with widely accepted characteristics of a good constitution. Hence,
one law might be constitutional but at the same time be inimical
to the concept of constitutionalism.
In the context of Zimbabwe, an instrument, provision or decree is
constitutional only if it is consistent with the Constitution of
Zimbabwe1 (“the Constitution”).
Section 3 of this Constitution establishes the supremacy of the
Code, and it also establishes the test for Constitutionality upon
all Zimbabwean laws.
Any law, that does not comply with any section of the Constitution,
is unconstitutional and therefore null and void.
The Draft Bill and the Constitution
The twenty-one (21) sections of the Interception of Communications
Draft Bill deal essentially and precisely with the activity described
in the document’s title – that is, the interception
of Communications. The question therefore is – the interception,
or interference with, obstruction of, stoppage of the flow, seizure
or grabbing - of communications by government constitutional?
The sections of the Constitution that deal with communication include:
1. s11 (b) protection of the freedoms of conscience, expression,
……. and association
2. s11 (c) protection of the right to privacy
3. s13 protection of the right to personal liberty
4. s15 Protection from … inhuman or degrading punishment or
5. s16 Protection from deprivation of property
6. s18 Protection by the law
7. s19 Protection of Freedom of Conscience
8. s20 Protection of Freedom of Expression
9. s21 Protection of Freedom of …. Association
At law, as in most other fields of study or anthropology, to every
general rule there is an exception. It is therefore widely accepted
that in enshrining fundamental rights and freedoms in the Constitution
and in other legal instruments, drafters may formulate exceptions
to the enshrined rights and freedoms.
In the famous case of Ratigan2,
the court held that:
“… where rights and freedoms are conferred on
persons, derogations therefrom, as far as the language permits,
should be narrowly or strictly construed”.
Wide and vague formulations are, therefore especially, unacceptable
in rights-related, or constitutionally enshrined entitlements and
freedoms. Such formulations are therefore unconstitutional.
Further, in any democratic society, these exceptions ought to be
subjected to the reasonableness test. If an exception has to be
made, then it must be absolutely necessary, justifiable or “reasonable
in a democratic society”. If it fails that test, then what
remains is for it to be struck down for its want of reason. It becomes
unconstitutional. The onus is on the person who seeks to impose
the exception, to illustrate the reasonableness or sound necessity
of the imposition.
The Constitution itself already carries exceptions to the rights
and freedoms clauses. This Draft Bill seeks to supplement the enshrined
exceptions, relating to communications.
However, the gods of the Draft Bill, that is under review could
not provide, or at least conjure up any reason or justification
for these “bonus” exceptions. In most statutes or statutory
instruments, the motives or explication of the given provisions,
are furnished in the preamble to the instrument.
In the Draft Bill, according to the Preamble section, the ‘purpose’
is simply to establish …. (interception) that is, to intercept
for the sake of interception. Can that be reasonable? In most democratic
societies, additional exceptions would arise only from additional
or fresh circumstances. In this case, what fresh mischief has necessitated
this proposed Zimbabwean law?
In Zimbabwe no new circumstances or threats to national security
have arisen and besides the Zimbabwe government could simply be
out to replace those sections of the Postal and Telecommunications
Act3 (“the Act”)
which were struck down by the Supreme Court of Zimbabwe on 15 May
Postal and Telecomms Act
Despite objections from concerned citizens, and from the telecommunications
industry, the Zimbabwe government all the same introduced the Act
on 16 June 2000, and the statute came into operation on 1 January
2001. Two, among many sections of the Act, were particularly repulsive.
Section 98 (2) and s103 had exactly the same effect as the menace
that is proposed for enactment in the Draft Bill.
Irked by the asinine nature of the Act, the Law Society of Zimbabwe
then challenged the Minister of Transport and Communication, and
the Attorney General4 at
the Supreme Court. The Society successfully argued that the two
sections were repugnant to s20 of the Constitution of Zimbabwe,
i.e. the right to freedom of expression.
The Supreme Court made the following key points in the Law Society
- the definition
of “postal services” as given in the Act, and in light
of s98 (2), was very broad. Yet the Act did not impose any restrictions
on the manner in which the adventure of interception would be
- freedom of
expression as enshrined in s 20 (1) of the Constitution, includes
freedom from interference with correspondence
- The statutory
provisions in the Act conferred wide and unfettered powers to
the President, to intercept correspondence and communications.
The only limitation to the exercise of that power was that the
president had to hold some “opinion”. Yet it was not
a legal requirement that the holding of the opinion be based on
reason or good cause
- The issue
was not about whether the powers had been abused, or were likely
to be abused, but rather that the Act did not offer any mechanisms
to prevent such abuse.
- The impugned
sections gave no guidance as to what a citizen should not do to
avoid the interception of his/ her mail, if he/ she does not wish
to have mail intercepted
- The provisions
were too vague, and they bestowed extremely broad and unfettered
powers to an individual without the necessary checks and balances
– to degrees that were not reasonable in a democratic society.
- It was quite
clear from a reading of the two sets of provisions (i.e those
of the Constitution, and those of the Act), that the sections
in the Act amounted to a derogation of the relevant constitutional
sections were, therefore, declared unconstitutional and were struck
This Draft Bill, therefore, cannot escape the damnation of unconstitutionality,
for three specific reasons:
First, it yields the same effects as those that arose from the debunked
s98 (2) and s103 of the Act. It follows that this Draft Bill is
unconstitutional in as far as it violates s20 of the Constitution.
Second, although powers and capacities have been shifted from the
president, to the Chief of Defence Intelligence and others, many
of the provisions in the Draft Bill remain broad, vague, embarrassing
and erosional in nature. For instance, the definition of “postal
services” is retained in the Draft Bill .
Third, its unconstitutionality is compounded by its incompatibility
with the other above listed fundamental rights.
Fourth, its vagueness, lack of any sound justification, and wanton
invasion into the private lives of citizens, makes the Draft unreasonable
in a democratic society, and therefore unconstitutional.
The Answers: What is about to be grabbed now are
the fundamental rights and freedoms, or civil liberties of ordinary
citizens, including the right to free communication. There clearly
is no fresh mischief to be combated in Zimbabwe. Interference with
the communications of its citizens is, therefore, patently unnecessary
and therefore unreasonable.
The move comes now because it is inspired by no reason or by Anglo-American
ambitions within certain ‘more equal comrades. Or it could
possibly and probably be an attempt to overturn the 2003 Supreme
Court determination, in typical patriotic fashion (PF).
The provisions of the Draft Bill are unconstitutional!
Visit the MISA-Zimbabwe
S.I 1979/1600 of the UK plus all the 17 subsequent amendments
2 Rattigan & Others v Chief Immigration Officer & Others
1994 (2) ZLR 54 (S)
3 (Chapter 12:05)
4 S.C 59/2003
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