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Interception of Communications Bill - Index of articles
of the Interception of Communications Bill
June 28, 2006
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The Interception of Communications
Bill, 2006, was published in the Government Gazette on Friday
27 May, 2006. I have been asked to advise whether, if it is enacted
into law, it will contravene the Declaration of Rights in the Constitution
and, generally, what its effect is likely to be on human rights
of the Bill
The aim of the Bill is to permit the Government to intercept and
monitor communications1 where it is
considered necessary to do so in the national interest or to prevent
serious offences. In furtherance of this aim, the Bill will establish
a monitoring centre through which communications are to be intercepted
and will require operators of postal and telecommunications services
to provide the Government with whatever assistance may be needed
to enable communications to be monitored.
The Bill starts
with a general prohibition against the unauthorised interception2
of communications transmitted by telephone or radio or through the
post. No one, according to clause 3 of the Bill, will be allowed
to listen to, read, record or copy such a communication unless he
or she is a party to it (in the case of an electronic communication),
or unless he or she does so with the permission of the sender or
intended recipient of the communication, or unless the Minister
of Transport and Communications has issued a warrant in terms of
clause 6 of the Bill authorising its interception. Anyone who intentionally
intercepts a communication in any other circumstances will be liable
to imprisonment for up to five years.
This is a fairly
encouraging start to the Bill, but it’s downhill all the way
Clause 4 of
the Bill provides for the setting up of an entity called a “monitoring
centre”, a central monitoring apparatus which is to be “the
sole facility through which authorised interceptions are effected.”
It will be manned and operated by technical experts designated by
the “agency”, which is defined as:
government telecommunications agency comprising telecommunications
experts which has been designated to operate the monitoring facility
and which gives technical directions to service providers so as
to ensure compliance with the provisions of this Act”.
This is a remarkably
opaque definition. There is no real explanation of what the “government
telecommunication agency” is, or who is to designate it, or
where the telecommunications experts who will comprise it are to
come from. The phrase “monitoring facility” may be a
mistaken reference to the monitoring centre, but it adds to the
opacity. One fears that all this obscurity is a cloak to hide the
fact that the monitoring centre will be operated by secret policemen
from the President’s Office.
Clauses 5 and
6 of the Bill empower the Minister of Transport and Communications
to issue warrants for the interception of communications. The only
people who will be able to apply for warrants are the Chief of Defence
Intelligence, the Director-General of the organisation commonly
known as the C.I.O., the Commissioner of Police and the Commissioner-General
of the Zimbabwe Revenue Authority, and their nominees3. These people
are collectively referred to in the Bill as “authorised persons”.
An authorised person who applies for a warrant will have to put
his application in writing, setting out details of why he considers
it necessary to intercept the communication concerned, though in
cases of urgency oral applications will be permitted4. Understandably
perhaps, there is no provision for notifying the person whose communications
are to be intercepted and inviting him or her to make representations
on the question of whether or not a warrant should be issued. Less
understandably, there is also no provision for the service provider
concerned to be notified.
of an application from an authorised person, the Minister will5 issue
an interception warrant if he has reasonable grounds for believing
- a serious
offence has been, is being or will probably be committed;
- it is necessary
to gather information concerning an actual threat to national
security or a “compelling national economic interest”;
- it is necessary
to gather information concerning a “potential threat to
public safety or national security”; or
- there is
“a threat to the national interest involving the State’s
international relations or obligations”.6
These are broad
and vaguely-stated grounds indeed. The term “national security
of Zimbabwe” is defined in clause 2(1) as including “matters
relating to the existence, independence and safety of the State”,
but the grounds for issuing a warrant under clause 6 go further:
they include the actual or probable commission of a serious offence7;
an actual threat to a compelling national economic interest; a potential
threat to public safety; and a threat to the State’s international
relations (whether the threat must be actual or potential is not
stated). It should be noted that there is no statement in clause
6 that the Minister must be satisfied that interception of a particular
communication will assist in the investigation, detection or prevention
of a serious offence, or that it will help to avert a threat to
the State’s international relations; nor that he must be satisfied
that intercepting a particular communication will form part of the
information-gathering process needed to avert an actual or potential
threat to national security or public safety.
extends the Minister’s powers considerably by allowing him
to issue directives to service providers (i.e. operators of postal
and telecommunication services) dealing with matters other than
the interception or monitoring of communications. What these other
matters might be is not stated.8
Clause 7 of
the Bill imposes some restrictions on the scope of Ministerial warrants.
They will be valid for only three months, though they may be renewed
for further one-month periods. And they must specify the name, address
and other necessary details of the “interception subject”
(i.e. the person whose communications are to be intercepted under
the warrant). This means that the Minister will not be allowed to
issue warrants for the interception of communications generally
— for example, a warrant to intercept all communications passing
through the system of a particular internet service provider —
since at least one of the parties to the communications must be
named in the warrant.
(i.e. operators of postal and telecommunication systems, including
internet service providers) will presumably have to comply with
Ministerial warrants issued under clause 6 — there is no direct
statement in the Bill that they must do so — but whether or
not they comply they will not be allowed to tell the interception
subject or interception target (the terms are used interchangeably
in the Bill to mean the person whose communications are to be intercepted)
that a warrant has been issued9. In any event they will be obliged
to install equipment to allow interception and monitoring to be
effected secretly, without the interception subject being aware
that it is taking place, and to give Government agents access to
communications to and from all interception subjects.10 For providing
this assistance they will be entitled to compensation at a level
prescribed by the Minister.11
that is to say people who possess the means of deciphering encoded
information, will be obliged to decipher the information if required
to do so by an authorised person,12
but they will not, apparently, be obliged to disclose the means
(i.e. the key) by which they decipher the information. The obligations
of key-holders under the Bill do not seem to be restricted to deciphering
information which is the subject of a Ministerial warrant; in other
words, a key-holder may be required to decipher any information
whatsoever if an authorised person thinks it necessary in the interests
of national security or the economic interests of Zimbabwe, or to
prevent or detect a serious offence.13
Key-holders who provide assistance to authorised persons will be
entitled to compensation at a prescribed level.14
of articles sent by post is dealt with separately, in Part IV of
the Bill. Under this Part any postal article will be liable to detention
and examination under the authority of a detention order issued
by the Minister on the application of an authorised person. The
grounds on which the Minister may issue a detention order are stated
more widely than those justifying the issue of a warrant under clause
6; a detention order may be issued if there are reasonable grounds
to suspect that the postal article concerned contains anything in
respect of which an offence15 is being committed or attempted, or
that it contains evidence of the commission of an offence, or that
it is being sent to further the commission of an offence, or that
it needs to be examined in the interests of defence, public safety
or public order.
It is not clear
if postal articles will be liable to interception under a Ministerial
warrant issued in terms of clause 6 of the Bill as well as being
liable to detention and examination under Part IV, or if it is intended
that they should be covered exclusively by the provisions of Part
IV. Clauses 5 and 6 of the Bill deal with the interception of communications,
and the word “communication”, though not defined, is
clearly intended to cover postal communications16 — which suggests
that postal articles may be intercepted under those clauses. On
the other hand, there seems no point in allowing postal articles
to be intercepted under a warrant if they can be detained and examined
under a detention order issued in terms of Part IV on wider grounds
than those justifying the issue of a warrant.
Clause 8 of
the Bill states that evidence obtained through illegal interception
will not be admissible in criminal proceedings unless the court,
having regard to the circumstances and the interests of fairness,
allows it to be admitted. This clause is noteworthy in two respects.
Firstly, the general rule is that evidence that has been obtained
illegally is admissible though the court has a discretion to exclude
it on the ground of unfairness or public policy.17
Clause 8 reverses this rule. Secondly, the clause applies only to
criminal proceedings. In civil proceedings, one assumes, the general
rule will continue to apply, as codified by section 48 of the Civil
Evidence Act [Chapter 8:01].18
It is not clear why the general rule was altered only in regard
to illegally-intercepted communications and only in criminal proceedings.
If the general rule was thought to be inadequate or wrong, it should
have been reversed or abolished in regard to all illegally-obtained
evidence and all legal proceedings.
18 of the Bill gives a right of appeal to persons aggrieved by warrants,
directives or orders issued under the Bill. The appeal will lie
in the first instance to the Minister and then, if the appellant
remains dissatisfied, to the Administrative Court. This clause
is rather specious. It will give service providers an avenue by
which they may have their grievances settled by a court, but one
wonders why they should have to note their appeals to the Minister
before approaching the court, particularly in cases where it is
the Minister’s own decision that is the subject of the appeal.
And the clause will give no effective remedy to members of the public
whose communications have been intercepted, since they will not
be aware of the interception.
of the Bill
Is the Bill constitutional?
of the Constitution guarantees freedom of expression in the following
Except with his own consent or by way of parental discipline,
no person shall be hindered in the enjoyment of his freedom of
expression, that is to say, freedom to hold opinions and to receive
and impart ideas and information without interference, and freedom
from interference with his correspondence.”
(2) of section 20 allows the right to freedom of expression to be
restricted on various grounds, in particular:
in the interests of defence, public safety, public order, the
economic interests of the State, public morality or public health;
(b) for the purpose of—
the case of correspondence, preventing the unlawful dispatch
therewith of other matter;”
but any such restriction will be invalid if it is shown not
to be reasonably justifiable in a democratic society.
expression has been called “one of the most precious of all
the guaranteed freedoms” and one which, together with freedom
of assembly, lies at the foundation of a democratic society.19 As
such, it must be given a generous interpretation, and derogations
from the right, even those expressed in the Constitution itself,
must be strictly construed.20 This means that the interests of “defence,
public safety, public order” and the other interests specified
in subsection (2) of section 20 will not be interpreted widely
so as to allow great limitations to be placed on the right to freedom
of expression. Any law that limits freedom of expression must be
sufficiently precise to enable a person to regulate his or her conduct,
knowing with reasonable certainty what the law is and what actions
are in danger of breaching the law.21 And limitations on the right
will be struck down if they are “over-broad”, that is
if they cover not only cases that fall within the terms of subsection
(2) but also cases outside it.22 For example, a law that imposes
restrictions on freedom of speech that are reasonable in wartime
will be over-broad if it extends those restrictions to peacetime.
Finally, any restriction imposed on freedom of expression must
be reasonably justifiable in a democratic society. To determine
whether it meets that requirement, it has to be tested against the
- whether the
legislative objective is sufficiently important to justify limiting
a fundamental right;
- whether the
measures designed to meet the legislative objective are rationally
connected to it; and
- whether the
means used (to) impair the right or freedom are no more than necessary
to accomplish the objective.
example of how our courts may interpret the Bill is the case of
Law Society of Zimbabwe v Minister of Transport and Communications
& Anor S-59-03, in which the Supreme Court considered the
constitutionality of sections of the Postal and Telecommunications
Act [Chapter 12:05]. The sections concerned were similar
to those of the Bill, and empowered the President to direct that
communications should be monitored if in his opinion it was necessary
to do so in the interests of national security or the maintenance
of law and order. He was also empowered, after consultation with
the responsible Minister, to give service providers such directions
as he considered to be necessary or expedient in the interests of
national security or relations with foreign states. The Law Society
challenged these provisions on the ground that they afforded no
protection to legal practitioner and client privilege. The Supreme
Court found them to be unconstitutional, and in its judgment said:24
impugned sections 98(2) and 103 of the Act confer on the President
unfettered powers to intercept correspondence and communications.
The only limitation to the exercise of that power is that the
President has to hold the “opinion” that it is necessary
in the interests of national security or necessary for the maintenance
of law and order. It is not a legal requirement that the holding
of the opinion be based on reasonable grounds or good cause. In
terms of s 103 of the Act the only restriction on the President
before he gives certain directives is that he should consult the
Minister, an appointee of the President, who is accountable to
98(2) and 103 of the Act have no built-in mechanism restricting
(a) who the President may authorise to make the interception;
(b) what is to become of the mail or other communication once
it has been intercepted;
(c) who has access to the contents in the intercepted communication;
(d) what steps are to be taken to ensure that any lawyer-client
privilege is not unduly interfered with.
The net effect
of the failure to provide statutory mechanisms to control or limit
the exercise of the power conferred by the Act on the President
leads to an unfettered discretion to intercept mail and communication.
The impugned sections provide no guidance as to what a citizen
should not do to avoid conduct that might lead to the exercise
of the powers conferred by the impugned sections. The Act provides
no legal recourse or safeguard for the innocent. The Act does
not provide any mechanisms for accountability. Similar legislation
in other jurisdictions provides or is required to provide, for
prior scrutiny, independent supervision of the exercise of such
powers and effective remedies for possible abuse of the powers.
The Act provides for no such safeguards.
here is not that the powers have been abused or are likely to
be abused by the President but rather that there are no mechanisms
in the Act to prevent such an abuse. In the absence of such limitations
and control mechanisms the powers conferred on the President are
too broad and overreaching to be reasonably justified in a democratic
society. The impugned sections, as I have already stated, are
so vague that the citizen is unable to regulate his conduct in
such a way as to avoid the interception of his mail or communication.
Thus, in this regard, the impugned sections of the Act are too
vague and do not satisfy the constitutional requirement of ‘provided
In the light
of these considerations, is the Bill consistent with section 20
of the Constitution?
The first point
to note is that although it will permit the interception of communications
in the interests of public safety, public or national security and
the economic interests of the State, it will go further and allow
interception if a serious offence has been or is likely to be committed
or if there is a “threat to the national interest involving
the State’s international relations or obligations”.
These grounds are not covered by section 20. The term “serious
offence” is defined by reference to the Serious Offences (Confiscation
of Profits) Act, as noted above, and includes:
- any offence
punishable by imprisonment for 12 months or by a more severe punishment;
- an offence
where the property involved exceeds $2 million;
- an offence
involving narcotics where the property involved is worth $20 000
will be subject to interception under the Bill for the purpose of
detecting or thwarting such crimes as assault, bag-snatching25, contempt
of court, and possession of a few twists of mbanje or dagga. It
should be noted, too, that postal articles will be liable to detention
under Part IV of the Bill if they contain evidence of a criminal
offence, or if they afford evidence of a criminal offence —
any offence, no matter how trivial. Section 20 of the Constitution
limits the grounds for interference with freedom of expression to
the interests of “public safety, public order, the economic
interests of the State, public morality or public health. The term
“public safety” means the safety of the community from
external and internal dangers, and “public order” is
synonymous with public peace, safety and tranquillity.26 To allow
communications to be intercepted or detained for the detection of
any offence, or to protect Zimbabwe’s international relations,
goes far beyond this.
In so far as
the grounds for intercepting communications go beyond those set
out in section 20 of the Constitution, i.e. in the interests of
defence, public safety, public order, the economic interests of
the State, public morality or public health, the Bill is over-broad
and clearly unconstitutional.
for impugning the Bill is that it will exert an unduly “chilling
effect” on freedom of expression, far beyond what is necessary
to protect defence, public safety, public order or the economic
interests of the State.27 Ordinary members of the public will be reluctant
to send e-mails, or to send letters through the post, or to make
telephone calls, if they believe that their messages are liable
to be monitored by government officials. Any e-mail, letter, telephone
call or other communication will be liable to interception under
the Bill on mere suspicion, even if the suspicion has to be based
on reasonable grounds — and in that regard it must be remembered
that since the senders and recipients of the communication will
be unaware that it is being intercepted, there is no mechanism under
the Bill for the reasonableness of the suspicion to be tested.
There is no provision, for example, for a warrant to be scrutinised
by a judicial officer before it is issued.
ground on which the Bill is unconstitutional is the one which aroused
the concern of the Law Society in the case of Law Society of
Zimbabwe v Minister of Transport and Communications & Anor
cited above: there is no protection for legal practitioner and client
privilege. Although the Supreme Court held that the privilege was
not specifically protected under the Constitution, but was subsumed
under the right to freedom of expression, the learned Chief Justice
have no doubt that a breach of the lawyer-client privilege almost
invariably leads to the violation of one’s entitlement to
a fair trial guaranteed under s 18 of the Constitution.”
And, again as
noted above, he listed the fact that there was no mechanism in the
impugned legislation to protect lawyer-client privilege as one
of the grounds on which the legislation under consideration was
of the Bill on Human Rights Generally
Even if the Bill is found to be constitutional it is likely to have
a deleterious effect on human rights. Freedom of expression lies
at the foundation of every democratic society and is one of the
basic conditions for the progress of democracy. The Bill will inhibit
the free exchange of news and opinions, particularly on matters
of a political nature. No one will be able to send an e-mail or
letter, or make a telephone call, without the fear, however slight,
that it will be intercepted by a government agent.
will undoubtedly argue that legislation for the interception of
communications is needed to combat international terrorism and crime,
and that other democratic countries have enacted legislation for
that purpose. The first point may well be true, and the second certainly
is, but even if those points are conceded the Bill still gives cause
noted, the grounds on which a warrant may be issued are painted
with a very broad brush in clause 6 of the Bill: the fact that a
serious offence has or will be committed (without any necessary
link between the offence and the communications to be monitored);
that it is necessary to gather information concerning a threat to
“any compelling national interest”; that there is a
threat to the national interest involving international relations
— all these cover an alarmingly wide range of circumstances.
Add to this the Minister’s power under clause 6(3) to give
“any directive” to service providers, the nature and
scope of such directives being unstated, and the State’s control
of communications becomes enormous. Does the immediate threat of
international terrorism or crime to Zimbabwe justify such extensive
limitations on freedom of expression? In the absence of any convincing
and publicly-stated justification for the Bill, there remains a
suspicion that the Government wants the Bill in order to monitor
and forestall the legitimate political activities of its opponents.
have legislation that allows communications to be monitored, certainly,
but their legislation is more limited than the Bill. The British
Regulation of Investigatory Powers Act 2000, for example, allows
a Secretary of State to issue warrants for the interception of
communications, but his actions are subject to monitoring and review
by an independent official, the Interception of Communications Commissioner.
And while the government of the United States can require telecommunications
service providers to maintain equipment that permits the interception
of communications under the Communications Assistance for Law Enforcement
Act of 1994, it is subject to monitoring by the courts and Congress.
There are no such safeguards in the Zimbabwean Bill.
The point should
also be made that when a democratic government which generally respects
the rights of its citizens introduces legislation that permits invasions
of privacy, there is generally less cause for concern than when
similar legislation is introduced by a despotic government which
has a record of violating the rights of everyone, citizens and non-citizens
1 The term
“communication” is not defined in the Bill. Although
clause 2(2) of the Bill states that defi-nitions in the Postal and
Telecommunications Act [Chapter 12:05] apply to words used in the
Bill, the definition of “communication” in that Act
applies only to telephonic and wireless communications, and it is
clear from clause 3(1)(b) that in the Bill the word is intended
to cover letters and other postal communications as well.
2 “Intercept” is defined in clause 2(1) of the Bill
as meaning to listen to, record or copy a communication sent by
telephone or wireless, or to read or copy a communication sent by
post. Reading of e?mails, therefore, does not seem to constitute
3 Clause 5(1) & (2) of the Bill.
4 See clauses 5(3) and 6(2) of the Bill.
5 Clause 6(1) of the Bill uses the word “shall”, implying
that the Minister must issue a warrant if he has the requisite reasonable
grounds for belief.
6 These grounds for issuing a warrant are set out in clause 6(1)
of the Bill.
7 That is to say, a serious offence as defined in the Serious Offences
(Confiscation of Profits) Act [Chapter 9:17].
8 Interestingly, there is no express statement that service providers
must comply with the Minister’s directives, or that they will
commit an offence if they fail to do so.
9 This is the clear implication of clause 9(1)(i) of the Bill.
10 Clauses 9 and 12 of the Bill.
11 Clause 13 of the Bill.
12 See clause 11 of the Bill. An authorised person, as indicated
earlier, is defined as meaning the Chief of Defence Intelligence,
the Director-General of the C.I.O., the Commissioner of Police or
the Com-missioner-General of the Zimbabwe Revenue Authority, or
a nominee of any of those officers.
13 See clause 11(1)(b) of the Bill. Note that the grounds on which
an authorised person may require information to be deciphered by
a key-holder are different from the grounds on which the Minister
may issue a warrant under clause 6. There is no reference in clause
11(1) to public safety or a threat to Zimbabwe’s international
14 Under clause 13 of the Bill.
15 Any offence, it should be noted, not just a serious offence.
16 See footnote no. 1 above.
17 See Hoffmann & Zeffertt The S.A. Law of Evidence 4th
ed pp 278–287, Kelly v Pickering 1980 ZLR 44
(A) at 47 C–D, and Shell (SA) (Edms) Bpk v Voorsitter, Dorperraad
van die OVS 1992 (1) SA 906 (O).
18 See Hoffmann & Zeffertt The S.A. Law of Evidence 4th
ed pp 291–2 and Shell (SA) (Edms) Bpk v Voorsitter,
Dorperraad van die OVS 1992 (1) SA 906 (O).
19 Per Gubbay CJ in In re Munhumeso & Ors 1994 (1)
ZLR 49 (S) at 56G and 57A.
20 See Nkomo & Anor v Attorney-General & Ors 1993
(2) ZLR 422 (S) at 432D and Rattigan & Ors v Chief Immigration
Officer & Ors 1994 (2) ZLR 54 (S) at 57G–H.
21 See Chavunduka & Anor v Minister of Home Affairs &
Anor 2000 (1) ZLR 552 (S) AT 561B–D.
22 Or, as expressed in Chavunduka’s case at 568A–569D,
if there is a lack of proportionality between the potential scope
of the limitation and the “evil” against which it is
23 See Nyambirai v NSSA & Anor 1995 (2) ZLR 1 (S) at
13B-E. In Capital Radio (Pvt) Ltd v Broadcasting Authority of
Zimbabwe & Ors S-128-02 at p 46 of the cyclostyled judgment,
Chidyausiku CJ added that the presumption of constitutionality had
to be borne in mind when determining whether a law was reasonably
justifiable in a democratic society, and went on to say that a court
has to be satis-fied that a statutory provision is arbitrary, oppressive
and, consequently, not justifiable in a democratic society before
striking it down as unconstitutional. On the other hand, in a later
case (Association of Independent Journalists & Ors v Minister
of State for Information & Publicity & Ors S-136-02
at p 19 of the cyclostyled judgment) the learned Chief Justice applied
the three criteria quoted above without adding any riders to them.
24 At pages 12 and 13 of the cyclostyled judgment.
25 Where the bag contains more than $2 million dollars, which is
by no means uncommon in Zimbabwe nowadays
26 In re Munhumeso & Ors 1994 (1) ZLR 49 (S) at 64C–D.
27 Compare Chavunduka & Anor v Minister of Home Affairs
& Anor 2000 (1) ZLR 552 (S) and S v Tsvangirai 2001 (2)
ZLR 426 (S).
28 Pages 7 and 8 of the cyclostyled judgment.
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