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on the passage of the Spying Bill
June 19, 2007
the Index of articles on the Interception of Communications Bill
wishes to express its outrage and dismay at the passing of the Interception
of Communications Bill by the House of Assembly on 13 June 2007.
In its current
form, the Bill carries unconstitutional provisions in that it threatens
citizens' fundamental rights to privacy, freedom of conscience,
expression and association.
is concerned that the Bill attempts to overturn the outcome of the
Law Society of Zimbabwe Vs the Minister of Transport and Communications,
and the Attorney General's case of 2003 in which the Supreme
Court ruled that freedom of expression includes freedom from interference
with one's correspondence (electronic or postal).
notes that the case also made it clear that laws such as the Interception
of Communications Bill with vague provisions which bestow extremely
broad and unfettered powers to an individual without checks and
balances are not reasonable.
With terms such
as "any directive" as in Section 6 (2) (a), and "any
other information" in Section 10 (1) (c), the Bill renders
wide discretionary powers to individuals. The last paragraph of
the summary section of the Bill states that the Minister shall be
empowered to make regulations for all matters which in his opinion,
are necessary or convenient to be prescribed. It is MISA-Zimbabwe's
considered view that this constitutes a bad law.
This Bill also
introduces unprecedented grounds for law making. The Minister is
empowered to legislate for convenience or expedience to the benefit
of the government, and potentially to the detriment of citizens.
notes that it remains unclear why the Attorney General has been
granted review powers, and the right to be consulted on certain
issues under the Bill. Review powers should be given to High Court
are made at defining the terms "national security",
and "organised criminal group", MISA-Zimbabwe expresses
concern that the issues surrounding these terms remain largely debatable
of Minister also leaves the legislative function open to all sorts
of possibilities. Any person whom the President, in his whim and
caprice, wishes to lend legislative powers, could end up deciding
on these critical issues affecting civil liberties, notwithstanding
the competence or otherwise of such a person to deal with the relevant
issues. This cannot be acceptable in a democratic society.
The Bill makes
very little provision for citizens to respond to the allegations
that lead to warrants being issued against them. That is contrary
to the principles of natural justice, which require that both parties
to an issue must be given a fair chance to present their respective
accounts on the subject issue.
of warrants (three months) is far too long. Why should a citizen's
privacy be under invasion for such a long time? The Original Bill
provided that the life of a renewed warrant would be only one month
long. The New Consolidated Text extends it to three months, which
is an exacerbation of the infringement of the citizen's liberties.
believes that this Bill is an illustration of the government's
determination to criminalise matters that should ordinarily be dealt
with in civil courts or through alternative dispute resolution.
The Bill is
grossly unfair as it seeks to impose financial obligations upon
corporate citizens, in a fashion that is not justifiable in a democratic
Under the Bill,
private, confidential and personal information may be intercepted
and abused by the system. Lawyer-client confidentiality, banker-customer
confidentiality, doctor-patient confidentiality, husband-wife confidentiality,
and all other forms of confidentiality, shall be breached should
the Bill be enacted into actual law. Therefore, service providers
including those in the Internet Service Provision, the banking,
the legal, and other industries and profession, will no longer be
able to assure their clients that issues discussed, or information
conveyed in the normal transaction of business, will remain private
in the communications industry will incur huge capital and foreign
currency expenses for the acquisition of hardware and software that
will become necessary for compliance with the proposed law. Most
players in the industry will be driven out of business.
notes that the in-house and mass media industries could also be
adversely affected as news materials could be intercepted in the
course of transmission, thereby making it impossible or difficult
for the relevant media houses to operate. That would also naturally
limit the nation's access to information but infringe on freedom
of expression rights.
While the Bill
attempts to present the government as a friendly authority as refered
to in Section 9 of the Bill, it is nowhere near that. This is a
decree as Section 9 (2) of the Bill, declares that "a service
provider who fails to give assistance . . . shall be guilty of
an offence and liable to a fine . . . ".
Suffice to say
the Bill fails to disclose the solid objective behind the proposal
for interception of communications and the impending snooping into
private and professional communications.
It is MISA-Zimbabwe's
unequivocal position that the Interception of Communications Bill
2006, is a retrogressive and repressive piece of law that has no
place in a democratic society.
the MISA-Zimbabwe fact
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