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  • 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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    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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