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Interception
of Communications Bill, surveillance for what purpose
Wilbert
Mandinde, MISA-Zimbabwe
Extracted from Monthly Alerts Digest - August 2006
September 11, 2006
Six weeks after the September 11, 2003
attacks, a panic-stricken United States Congress passed the Patriot
Act.
The Act resulted in an overnight revision
of the nation's surveillance laws that vastly expanded the government's
authority to spy on its own citizens, while simultaneously reducing
checks and balances as provided for through judicial oversight,
public accountability, and the ability for court challenges.
Almost three years later, the Zimbabwean
government appears determined to follow suit by coming up with the
Interception
of Communications Bill. What remains unclear though is whether
the Zimbabwean Government is justifiably panic-stricken to consider
similar measures.
The argument by the government and
its apologists that Zimbabwe needs such legislation because other
countries such as the United Kingdom, United States, South Africa,
Australia, New Zealand, Canada and Hong Kong have such legislation
does not hold water. Zimbabwe has to come up with very compelling
security reasons not necessarily of similar magnitude to the 9/11
and 7/7 terror bombings in the United States and United Kingdom
respectively, to justify the introduction of the envisaged law.
Gazetted on 26 May 2006, the Interception
of Communications Bill provides for the establishment of an interception
of communications monitoring centre together with the appointment
of persons to man that centre. Monitoring and intercepting shall
be of communications via telecommunications, postal or any
other related service system.
The Bill also provides for the procedures
to be followed when applying for the proposed interception by the
Chief of the Defence Intelligence, the Director-General of the President's
Department of National Security, the Commissioner of the Zimbabwe
Republic Police and the Commissioner-general of the Zimbabwe Revenue
Authority or their nominees.
The Bill seeks to torpedo the doctrine
of the separation of powers by vesting excessive powers with the
Minister of Transport and Communications as the warrant officer
without providing for judicial and parliamentary oversight.
In a country experiencing severe foreign
currency shortages, the Bill requires telecommunication service
providers, at their expense, to install hardware and software facilities
and devices to intercept communications.
Proponents of the Bill have argued
that with the advancements in ICTs, the proposed law will strengthen
Zimbabwe’s counter-surveillance activities against perceived states
that spy on the country. It is necessary to note though that it
is recognised worldwide that wiretapping and electronic surveillance
is a highly intrusive form of investigation that should only be
used in limited and unusual circumstances.
Nearly all-major international agreements
on human rights protect the right of individuals from unwarranted
invasive surveillance.
Article 12 of the 1948 Universal Declaration
of Human Rights states:
No one should be subjected to arbitrary
interference with his privacy, family, home or correspondence, or
to attacks on his honour or reputation. Everyone has the right to
the protection of the law against such interferences or attacks.
This language was adopted into Article
17 of the International Convention on Civil and Political Rights,
which went into force in 1966. The U.N. Commissioner on Human Rights
in 1988 made it clear that this broadly covers all forms of communications:
Compliance with article 17 requires
that the integrity and confidentiality of correspondence should
be guaranteed de jure and de facto. Correspondence should be delivered
to the addressee without interception and without being opened or
otherwise read. Surveillance, whether electronic or otherwise, interceptions
of telephonic, telegraphic and other forms of communication, wire-tapping
and recording of conversations should be prohibited.
A number of the regional human rights
treaties make these rights legally enforceable.
In Africa, the Declaration of Principles
on Freedom of Expression in Africa of which Zimbabwe is a signatory,
stipulates:
- No one shall be subject to arbitrary
interference with his or her freedom of expression.
- Any restrictions on freedom of
expression shall be provided by law, serve a legitimate interest
and be necessary in a democratic society.
In any case, Article 8 of the 1950 Convention
for the Protection of Human Rights and Fundamental Freedoms states:
- Everyone has the right to respect
for his private and family life, his home and his correspondence.
(2) There shall be
no interference by a public authority with the exercise of this
right except as in accordance with the law and is necessary in a
democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health of morals, or
for the protection of the rights and freedoms of others.
The European Court of Human Rights has
heard numerous cases on the right of the privacy of communications.
It has ruled that countries must adopt laws regulating electronic
surveillance by both governments and private parties and set out
guidelines on the protections that countries must follow.
Article 11 of the American Convention
on Human Rights sets out the right to privacy in terms similar to
the Universal Declaration. In 1965, the Organization of American
States proclaimed the American Declaration of the Rights and Duties
of Man, which called for the protection of numerous human rights,
including privacy. The Inter-American Court of Human Rights has
begun to address privacy issues in its cases.
It is important to note that the Zimbabwean
government proposes a law that goes beyond acceptable standards
of monitoring criminal activities. The Bill provides for a blanket
monitoring provision without checks and balances. In a constitutional
democracy, the doctrine of separation of powers ensures that checks
and balances exist between the executive, judiciary and legislature.
However this Bill, among other contentious
provisions 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, email and cellphone messages by applying
for such warrants to the minister. In a constitutional democracy,
indeed such powers should vest in the judiciary.
In South Africa, an application is made
to a judge who is required to only be "satisfied" that, "there are
reasonable grounds to believe". This is obviously done to prevent
its use in questionable or marginal cases.
It is critical to note that the issue
that needs to be addressed is not whether the United States or United
Kingdom have similar legislation but that the reasons for the proposed
law have to be very compelling, reasonable and justifiable in a
democracy to pass the constitutional test.
Without the requisite corroborative evidence
to that effect, it will be difficult for the government to convince
Zimbabweans and the world at large that the ruling Zanu PF government
respects the rule of law and the principle of the separation of
powers as enshrined in the country’s constitution.
What, therefore, immediately comes to
the fore especially coming as it does on the back of restrictive
laws such as the Access
to Information and Protection of Privacy Act (AIPPA) and Public
Order and Security Act (POSA), is the government’s determination
to close all channels for free expression in Zimbabwe through its
unwavering but demonstrable disdain for democratic practices and
norms.
*Wilbert Mandinde is MISA-Zimbabwe’s
Legal Officer
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