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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:

  1. No one shall be subject to arbitrary interference with his or her freedom of expression.
  2. 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:

  1. 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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