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This article participates on the following special index pages:
Interception of Communications Bill - Index of articles
MAZ
and ZINEF submission to the PLC on The Interception of Communications
Bill
Media Alliance of Zimbabwe (MAZ) and the Zimbabwe National Editors
Forum (ZINEF)
August
24, 2006
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Introduction
The
Media Alliance of Zimbabwe, comprising the Zimbabwe
Union of Journalists (ZUJ), the Media
Monitoring Project Zimbabwe (MMPZ) and the Media
Institute of Southern Africa (MISA- Zimbabwe) together with
the Zimbabwe National Editors’ Forum (ZINEF), in the interests of
universally accepted principles of freedom of expression, freedom
of information and independence of the media from undue state interference,
make the following submissions to the Parliamentary Legal Committee
(PLC) on the constitutionality of the Interception
of Communications Bill, 2006.
In making this
submission, MAZ and ZINEF are cognisant of the mandate of the PLC
which is to show whether if enacted, any provision of a piece of
legislation brought before the house would infringe any Article
of the Zimbabwean Constitution or any other existing law. This submission
is therefore made with respect and full knowledge of the role that
the PLC is required by the Constitution to render an opinion on
the Constitutionality of any Bill and Statutory Instrument.
Our submission
is presented in the following format: a summary of the sections
of the Interception of Communications Bill that raise immediate
concern to our respective organizations; our analysis of the constitutionality
of the Bill; an analysis of the compatibility of the Bill with international
and regional legal instruments and a final section that summarizes
our submissions to the PLC.
The Interception
of Communications Bill, 2006 was gazetted and published in the Government
Gazette on 26 May 2006.
Summary of
the Bill
Section
4 of the Interception of Communications Bill, 2006 deals with the
establishment of an Interception of Communications Monitoring Centre.
The Bill also provides for the appointment of persons to man that
centre. The persons so appointed shall be vested with the functions
of monitoring and intercepting certain communications in the course
of their transmission. Monitoring and intercepting shall be of communications
via telecommunications, postal or any other related service
system.
In Section 5 of
the Bill, it provides for a procedure to apply before any interception
can be carried out. That Section provides that only the Chief of
the Defence Intelligence, the Director-General of the President's
department on national security, the Commissioner of the Zimbabwe
Republic Police and the Commissioner-General of the Zimbabwe Revenue
Authority can apply to intercept communications. The application
is made to the Minister of Transport and Communications who will
be responsible for the Bill.
The Bill further
provides in Section 6 that the Minister may issue an interception
warrant where there are reasonable grounds for him to believe (among
other things) that a serious offence has been or is being or will
probably be committed or that there is threat to safety or national
security of the country.
The warrant issued
by the Minister shall be valid for a period not exceeding three
months.
Section 8 of the
Bill bars courts from accepting as evidence information which would
have been obtained by means of any interception committed in contravention
of this Bill.
Telecommunication
service providers will be required under Section 9 and 12 of the
Bill to install hardware and software facilities and devices to
enable interception of communications.
The Bill provides
for the detention of any suspicious postal article. In terms of
Section 14 of the Bill, an authorised person may apply to the Minister
for a detention order to detain and examine the postal article where
the authorised person has reasonable grounds to suspect that the
postal article contains anything in respect of which an offence
or attempted offence is being committed.
Finally, Section
18 of the Bill makes provision for aggrieved persons to appeal to
the Minister. Once he receives the appeal, the Minister may confirm,
vary or set aside the warrant, directive or order appealed against.
Still should an aggrieved person not be satisfied with the decision
of the Minister, he or she may appeal against it to the Administrative
Court.
1.2 Analysis
of the Constitutionality of the Bill
Section
20 of Zimbabwe’s Constitution is a critical departure point in assessing
the constitutionality of the Bill. Section 20 of the Bill provides
that;
"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, the freedom to hold opinions and to receive and impart
ideas and information without interference and the freedom from
interference with correspondence."
Section 20 of
the Constitution allows the law to make provision in the interests
of defence, public safety, public order, the economic interests
of the state, public morality and public health. These exceptions
would appear to protect the gathering of information concerning
an actual threat to national security or compelling national economic
interest or the gathering of information concerning potential threat
to public safety or national security. However, the Interception
of Communications Bill is not clear if communications to be intercepted
are only related to these areas.
Further, national
interest involving the State’s international relations and obligations
does not appear to be covered by the exception.
The other grounds
on which the Minister is enjoined to issue a warrant in terms of
Section 8 of the Interception of Communications Act are not covered
by any of the exceptions to Section 20.
The regulation
of electronic communication referred to in Section 20 is, clearly,
technical regulation to ensure efficiency and not the type of regulation
envisaged by the Interception of Communication Bill.
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