By Chris Mhike
THE Zimbabwe Independent’s lead story of March 17 read: “Government to spy on phones, e-mails”. This was in reference to the draft Interception of Communication Bill 2006.
Will it be just an executive peeping or an ordinary
exercise of innocent governmental curiosity, as suggested by the word “spy”?
If the draft develops to be a substantive Bill, and subsequently into a law, would such be constitutional? That is the question.
Interception connotes interference, obstruction, and stoppage of flow, seizure and grabbing, among other negative processes. Grabbing! After they grabbed farms, implements therefrom, Daily News computers and other men’s wives, now what is to be grabbed through this communication law?
Communication involves the imparting or exchange of information, ideas, or feelings. This can be via verbal, physical, electronic, written, telephonic, virtual or other channels. The draft Bill targets “telecommunication, postal” or any other related service system. The discussion on the constitutionality or otherwise of the provisions proceeds here, from the premise that Zimbabwe is a free and democratic society.
In 1980, the reigning jolly government gained (not grabbed) power via a democratic process. They claim today that citizens freely and democratically elected them into office. Freedom and democracy are the achievements that were celebrated through the gyrations witnessed by both the “equal” and the “more equal” comrades on the Zimbabwe Oye night.
So, even if some “unpatriotic” Sekaurema was to aver that the democracy is in short supply in Zimbabwe, like many other things, it should remain true that a democratic dispensation is the one that should be in place, in the place of either the notional or the real autocratic regime.
Even if it were to be proven that governance in the country is undemocratic, citizens would still have to think like free people. They would not leave the rogues to monopolise the “grab” mentality.
The citizens would have to rightfully grab back from the “robber-grab-alls” whatever is at stake.
In a democratic society, decisions, actions, plans, operations (not necessarily Murambatsvina and Garikai, but including them), laws and regulations, have to be constitutional. This means that they must all be consistent with the constitution of the country. Besides being quantitatively consistent with the constitution, they must also qualify as being reasonable in a democratic society.
The 21 sections of the draft Bill essentially and precisely deal with the activity described in the document’s title — that is, the interception of communications.
And, the sections of the constitution that deal with communication include: the protection of the freedoms of conscience, expression and association, the protection of the right to privacy, protection of the right to personal liberty, protection from inhuman or degrading treatment, and protection from deprivation of property.
The draft law certainly interferes with citizens’ consciences, expression and association because all these could be exercised through the targeted forms of communication.
Clearly, if any private correspondence directed to one particular person is intercepted, the right to privacy, or choice as to whom one should associate with and whom he should not, are thereby severely violated.
If sensitive information that had been destined for someone ends up in some stranger’s hands, embarrassment and dehumanising consequences could follow for either of the parties to the communications, or both. Should mail containing personal works of my creativity (intellectual property) be seized, such seizure would amount to deprivation of property.
The interception of mass media-related communication would be tantamount to the violation of freedom of the press.
Acknowledged, it is widely accepted that in enshrining fundamental rights and freedoms in the constitution and in other legal instruments, drafters may formulate exceptions to the rule.
But, where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly or strictly construed. Wide and vague formulations are unacceptable, and therefore unconstitutional.
If derogation has to be made, then it must be absolutely necessary, justifiable or “reasonable in a democratic society”. If the exception fails that test, then what remains is for it to be struck down for its want of reason. It becomes unconstitutional.
The constitution itself already carries exceptions to the rights and freedoms clauses. This draft Bill seeks to supplement the enshrined exceptions, relating to communications.
However, the authors of the draft Bill could not conjure up any justification for these bonus exceptions. According to the memorandum section of the draft, the “purpose” is simply “to establish an interception of communication monitoring centre” — that is, to intercept for the sake of interception.
These above-stated violations of the constitution, and of the principle of reasonableness, therefore make the daft Bill inconsistent with the constitution, and unreasonable in a democratic society.
In the US, in justifying a law that is similar to the one envisaged in “our” draft Bill, President George W Bush cited the need for an effective tracking system for terrorists, in light of 9/11, as the motive behind the US Patriot Act (2001).
To date, there is no evidence that the civil liberties that were grabbed from Americans through the law had been in any way a barrier to Bush’s designs. But there was some attempt at logical justification, unconvincing as it might have been.
In 1985, an Interception and Communications Act was introduced in the UK, to replace the Royal Prerogative. Terrorism had not become a hot topic then, but again, the British executive proffered particular reasons for the promulgation.
Could Harare be following in the footsteps of the “twin evils”? If not, and there are no fresh circumstances in our “more democratic” African nation to justify interception, then why? Why this draft Bill now?
Perhaps there are particular detractors — individuals and organisations — that are targeted. Or it could be compliance with international trends, never mind our own constitution.
Besides the dreadful possibility of a purge, or the daft copying from Uncle Sam, Uncle Bob could simply be out to overturn, in typical patriotic fashion, a previous judgement. In 2003, the Supreme Court struck down two sections of the Postal and Telecommunications Act for their unconstitutionality.
The contested sections gave powers to the president of Zimbabwe to intercept and detain mail. They empowered the same president to give directions for interception and detention to any “licensee”. Then the Law Society successfully argued that the provisions were repugnant to the right to freedom of expression.
The Supreme Court accepted the argument and it struck the sections down as unconstitutional.
This draft Bill, therefore, cannot escape the damnation of unconstitutionality because its effects are similar to those that arose from the debunked sections of the Act.
Whether the same unconstitutional provisions prevail in the UK, the US, or anywhere else on the globe, “our” draft Bill remains unconstitutional and unreasonable in democratic Zimbabwe Espionage on private communication, as championed in the draft Bill, is unconstitutional and unreasonable.
* Chris Mhike is a Harare-based legal practitioner.