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Demand for withdrawal of spying Bill
MISA-Zimbabwe
August 30, 2006

Civic society organisations, the business community and political parties on 30 August 2006 urged the government to withdraw the Interception of Communications Bill 2006 to allow for extensive debate on its constitutionality and whether it is necessary and justifiable in a democracy.

In their oral submissions during a public hearing on the Bill convened by the Parliamentary Committee on Transport and Communications, CSOs expressed concern that if passed in its present state, the country's civil liberties notably the right to freedom of expression, privacy and business confidentiality, would be seriously compromised notwithstanding its negative ripple effect on the growth and development of the Internet Communication Technologies sector.

In their presentations, the Media Alliance of Zimbabwe (MAZ), Zimbabwe National Editors Forum (Zinef), Zimbabwe Lawyers for Human Rights (ZLHR), Zimbabwe Internet Service Providers Association and the opposition MDC, noted among other issues of concern, the absence of a provision for judicial supervision in its implementation and safeguards on basic freedoms as found in other jurisdictions.

The provisions of the Bill were dismissed as generally vague and unconstitutional as it only provides for the right to appeal by aggrieved parties only after basic rights have already been violated.

"In fact, it is clear that judicial review was meant to be entirely circumvented," argued MISA-Zimbabwe's Legal Officer Wilbert Mandinde, on behalf of MAZ and Zinef.

"An aggrieved person is given a right to appeal to the Minister (of Transport and Communications), who is neither independent nor impartial. He authorises the interception and monitoring in the first place. He is therefore, not an independent and impartial adjudication authority established by law as is required by Section 18 subsections 9 of the Constitution."

The proposed law seeks to empower the chief of defence intelligence, the director-general of the Central Intelligence Organisation, the Commissioner of Police and the Commissioner General of the Zimbabwe Revenue Authority to intercept telephonic, e-mail and cellphone messages.

The Bill also empowers state agencies to open mail passing through the post and through licensed courier service providers.

This comes despite a Supreme Court ruling in 2004 which declared unconstitutional Sections 98 and 103 of the Posts and Telecommunications (PTC) Act which provided for communications interception because they violated Section 20 of the Constitution.

Section 20 guarantees freedom of expression, freedom to receive and impart ideas without interference with one's correspondence.

The Bill stipulates that operators of telecommunications services will be compelled to install software and hardware to enable them to intercept and store information as directed by the state.

Jessie Majome of the opposition MDC, described the Bill as a travesty on long established rights and a violation of international conventions to which Zimbabwe is a signatory notably the International Convention on Civil and Political Rights' Article 17 which provides for the right to the protection of the law against interference and attacks on those rights.

By failing to provide for judicial oversight and vesting the powers of appeal with the Minister, the Bill violated the democratic principle on the separation of powers to curb the excesses of the Executive, argued Majome.

"The separation of powers is critical to a functioning democracy. The absence of the judiciary in the decision making process" is particularly dangerous and of great concern. The Act needs a lot of reworking and ensure that the judiciary has a role to play in its implementation," said the ZLHR's Zvikomborero Chadambuka.

Brigadier Sango of the Ministry of Defence said the Bill was the result of a number of challenges that the country was facing in the area of security, mercenary activities, and organized crime vis-à-vis the advancements in technology. "With the advancement in technology, no one is safe from the scourge of terrorism and organised crime," he said.

Dr Tafataona Mahoso, the chairman of the government-controlled Media and Information Commission, said the absence of judicial oversight was not anomalous as it was necessitated by the need to keep pace with the high speed of technology for purposes of anticipating and dealing with criminal activities that could be facilitated through communication technology. Mahoso, however, said there is need to identify the essential areas that need to be put under surveillance or even come up with a separate Surveillance Act.

In his contribution as a private citizen, Jameson Timba, dismissed Mahoso's position on the absence of a provision for judicial oversight as irresponsible. Timba said the Minister of Transport and Communications, should instead be hauled before the Committee to explain what exactly he hopes achieve by coming up with such a Bill which he has been unable to through existing security laws.

Jim Holland of the Zimbabwe Internet Service Providers Association, noted that besides failing to provide for judicial and parliamentary oversight, there were no constraints on what is going to be monitored and what is designed to be achieved and what the country stood to gain from such monitoring and interception.

"Our recommendation is that the Bill should be withdrawn in its present form and subject it to wide and extensive consultations on the experiences of interception of communications laws in other countries," said Holland.

The Committee, which is chaired by Leo Mugabe, was warned of the Bill's negative impact on the development of e-commerce, lawyer-client confidentiality, the sensitive nature of the tender process and doctor-patient confidentiality among other potential breaches to privacy which might arise from the monitoring of telephonic conversations and email messages.

Overall, the draft bill is lacking in many basic safeguards found in the laws of other countries. The Bill represents a step backwards and is inconsistent with international standards on human rights and other legal requirements.

"Its vagueness, lack of any sound justification, and wanton invasion into the private lives of citizens, makes the Bill unreasonable in a democratic society. It is recommended that substantial modifications be made before there is any further consideration to it," says MAZ and Zinef in their submissions to the Portfolio Committee on Transport and Communications.

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