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Harare in move to spy on citizens
Nicole Fritz and Joshua Koltun
May 04, 2006

http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A194531

HUMAN rights activists in Zimbabwe acknowledge the ennui that seems now to characterise regional and international response to developments in Zimbabwe. But South Africans and others should at least be able to feel sufficient indignation for a new proposal that potentially has direct implications for even those of us outside Zimbabwe. Zimbabwe authorities are proposing new legislation that will authorise it to spy on the private communications of its citizens. But given that these communications might be transmitted to, or originate from, people outside of the country, all of us entering into communications with Zimbabweans are at risk of surveillance. The recently published draft legislation is apparently to be fast-tracked for quick parliamentary approval.

In 2004 the Supreme Court of Zimbabwe beat back a previous attempt by the administration to seek such authority. The previous legislation was struck down as it violated section 20 of Zimbabwe’s constitution — that "no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence."

Although the new legislation makes some half-hearted improvements over the previous legislation, it remains fundamentally an attack on the constitution’s guarantee of freedom of expression.

The bill would establish a monitoring centre to intercept communications. Communications providers would (at their own expense, and under sanction of stiff criminal penalties) have to provide the software and hardware that would enable the government to snoop on its own citizens.

A number of state agencies would be authorised to apply for "warrants" to intercept communications. The agency obtains the warrants directly from the communications minister, not from a court. Even oral applications will be permissible. Information obtained in this way may be used in court, and for similarly broadly defined purposes.

The minister’s authority to grant these warrants is framed in broad language, including on the grounds that "there are reasonable grounds for the minister to believe that the gathering of information concerning" an "actual threat to the national security ... of the country," or even concerning a "potential threat to ... national security" is necessary. Similarly, the minister can approve the opening and examination of people’s post — on the grounds that the agency "suspects on reasonable grounds" that the mail "contains anything that will afford evidence of the commission of an offence".

The invocation of "reasonable grounds" might sound like it provides some level of protection, but it is simply window dressing — since the minister is the judge of the reasonableness of his own belief. There is no requirement of judicial approval before interception.

And the provisions for after-the-fact judicial review seem intended only as the cruellest kind of joke. The time periods to mount a legal challenge are ludicrously short. A person aggrieved can complain to the minister — so long as he mounts his legal challenge within 14 days. A person aggrieved by the minister’s decision has only a month to appeal to an administrative court.

In addition, the deadlines assume that a person knows she is being spied on — indeed, the deadlines run from the time the minister notifies the person of a decision. But the legislation does not require the minister to let a person know that a warrant has issued. On the contrary, the legislation specifically requires that the service provider enable the government to carry out the interception without being detected.

To be fair, in many ways, Zimbabwe’s proposed new law merely tracks legislation that has been introduced in countless countries, including SA. Governments worldwide are increasingly snatching greater powers of surveillance because, in the best interpretation, modern threats such as terrorism require them to do so, but more likely, and less nobly, because more sophisticated technology means they can.

Still, Zimbabwe is exceptional. While SA’s equivalent law — the Regulation of Interception of Communications and Provision of Communication Related Information Act — permits surveillance by government agencies, this may happen only under order of a court. Zimbabwe’s proposed law will mean government agencies need only obtain government authorisation in order to spy.

*Fritz is director of the Southern Africa Litigation Centre (SALC) and Joshua Koltun is an SALC lawyer.