GOVERNMENT is forging ahead with the proposed spying legislation after drafting a new version of the Interception of Communications Bill that has faile
d to fully address the concerns of the Parliamentary Legal Committee and stakeholders in the communications sector.
Government withdrew the initial Bill under pressure from the PLC that is chaired by constitutional law expert and MDC MP Welshman Ncube and protests by stakeholders in the communications industry at a Parliamentary Portfolio committee on Transport and Communications hearing, amid promises of a new version that would address their concerns.
The new consolidated version obtained by the Zimbabwe Independent this week shows that changes made to the original text are minor to the extent that, overall, the latest version retains its repressive nature.
The new version still says: “An application for the lawful interception of communications may be made by the following persons – the Chief of Defence Intelligence or his or her nominee, the Director-General of the President’s department responsible for national security or his or her nominee; the commissioner of the Zimbabwe Republic Police or his or her nominee, the commissioner general of the Zimbabwe Revenue Authourity or his or her nominee.”
Communications minister, Chris Mushohwe and the Attorney-General Sobusa Gula-Ndebele met the PLC last month resulting in the committee not presenting an adverse report on the Bill in anticipation of an improved version.
In its draft report, the PLC said the old version’s problematic areas were: clauses 3(1) (b) (i); 4; 5; 6; 8 and clause 18.
In the consolidated text clauses 3(1) (b) (i); 4 and 5 have been retained as they are despite the PLC draft adverse report having said: “It is clear, Mr Speaker Sir, that the provisions of all these clauses individually and collectively interfere with citizens’ right of protection from interference with their correspondence.”
Whereas in the old Bill, aggrieved persons were required to appeal first to the minister and then to the Administrative Court, in the new version appeals are made straight to the Administrative Court that “may confirm, vary or set aside the warrant, directive or order appealed against”.
Although the previous version gives a list of people in Clause 5 who may apply for a warrant as well as nominees, the draft Bill said: “The Bill does not provide for the criterion for selecting the nominee, it does not limit the circumstances in which the minister may delegate this function and does not provide a procedure for affecting the nomination.” That observation was not addressed.
Although on Clause 6 oral applications to the minister for the issuance of warrants no longer apply, the new version has not addressed the committee’s concerns as it still says that the minister may issue warrants “on reasonable grounds”.
On that issue the PLC draft report had said: “In issuing this warrant, the minister acts alone…The reasonable grounds need therefore exist only in the mind of the minister. This is an incredibly subjective criterion, which means, in effect, that the minister has unfettered discretion in the matter.”
The PLC draft report said there are no safeguards against the minister abusing his power in issuing warrants. In the new version, the government’s solution was to come up with provisions for the review of the minister’s exercise of his powers to issue warrants by the Attorney-General. After that review the Bill says “the Attorney-General may make recommendations in writing to the Minister concerning the manner in which the Minister shall exercise his or her powers in future”.
In its draft report the PLC had said such controls “should normally be assured by the judiciary, which offers the best guarantees of independence, impartiality and proper procedure”.
Apart from this, in its presentation to the Parliamentary Portfolio committee on Transport and Communications the Zimbabwe Internet Service Providers Association also proposed parliamentary review.
It also said in other countries with similar legislation warrants are issued as a result of some judicial process.
Clause 8 still provides that evidence obtained by means of an unlawful interception may be admissible in court if the court deems that there are compelling reasons to allow its admission, although the PLC had expressed reservations to it.
Although on clause 18 the Bill says: “Any person aggrieved by a warrant, directive or order issued” may appeal to the Administrative Court, that also falls below the committee’s concerns. The committee had wondered how the individuals would appeal against the issuance of the appeals when they have not been told by the minister in the first place that the warrants had been issued.