THE proposed Interception of Communications Bill currently before parliament is a law that will strip Zimbabweans of every form of privacy and lead to the collapse of some companies, particularly those in the communications industry, analysts have warned
In the light of an earlier move by the government to snoop into people’s communications that collapsed in 2004 after a constitutional appeal lodged by the Law Society of Zimbabwe (LSZ), the Bill shows the government’s determination to circumvent court rulings.
A further attempt to scrutinise people’s conversations during the same year was abandoned. No reasons were given.
In the court case, the Supreme Court ruled unconstitutional Sections 98 and 103 of the Postal and Telecommunications Act following a constitutional appeal by the LSZ.
The Act provided for the interception of communications through directives to service providers by President Robert Mugabe “in the interests of national security or the maintenance of law and order”.
The court made a finding to the effect that the measures violated Sections 18 and 20 of the Constitution with regard to the right of an accused person to have a fair trial, especially considering the lawyer/client privilege as well as the right to freedom of expression.
Also in 2004 government proposed a draft amendment to the franchise agreement between Internet service providers and Tel*One requiring it to block what it termed “objectionable, obscene, unauthorised” communications.
Service providers were also required to “provide, without delay, all the tracing facilities of the nuisance or malicious messages or communications . . . to authorised officers of Tel*One and Government of Zimbabwe… when such information is required for investigations of crimes or in the interest of national security”.
The government did not follow up the matter.
Delivering his speech during the opening of the fifth session of the Fifth Parliament of Zimbabwe on July 20 2004, Mugabe referred to the drafting of spying legislation that he termed a “Security of Communications Bill meant to bolster the security of our nation”.
After almost two years of silence on the issue the current Bill was gazetted on May 26 this year.
The Bill says its purpose is to “establish an interception of communications monitoring centre and for the appointment of persons to that centre whose function shall be to monitor and intercept certain communications in the course of their transmission through a telecommunication, postal or any other related service system”.
It is, however, silent on the use of the intercepted material although analysts have said it may be used as evidence in criminal proceedings.
The proposed law also empowers the Transport and Communications minister to issue warrants for the interception of communications on application by the Chief of Defence Intelligence, the Director-General of the President’s Department of National Security (the CIO), the Commissioner of the Zimbabwe Republic Police and the Commissioner-General of the Zimbabwe Revenue Authority.
These applications can be written or oral.
The said warrants may be issued where the minister has reasonable grounds to believe that “a serious offence has been or is being or will probably be committed or that there is a threat to the safety or national security of the country” or that “the interests of the country’s international relations or obligation(s) are threatened”.
In a written submission to parliament, the Zimbabwe Lawyers for Human Rights (ZLHR) said it did not dispute the fact that many countries had legislated for the interception of communications.
“However, this is no excuse to pass legislation which is badly drafted, self-destructive and disrespectful of the fundamental rights and freedoms of the populace,” it said.
ZLHR said of most concern with these provisions was the fact that there was no judicial control or oversight in the process with powers vested in the minister.
“Allegations made by an applicant for communications interception must be examined in a court of law to ensure that they raise genuine concerns as to the ‘national security’, ‘public safety’ and national economic interest,” the human rights lawyers said.
The judiciary must issue a warrant of interception. This is the position in various other jurisdictions including South Africa, the US, the United Kingdom, New Zealand and Australia.
“The minister is a member of the legislature, implementing the policy of the executive, and therefore is clearly an interested party who should play no role in the interception process,” the lawyers said.
ZLHR argued that the Bill gave the minister “unlimited and unchecked power”.
“The provision allowing for an oral warrant is particularly toxic in that the minister is given free rein and is completely immune to checks and balances.
“In the context of Zimbabwe today, and the anarchy characterising what should be lawful processes and oversight, it is a virtual certainty that there will be a higher amount of oral applications than written ones,” it said.
The organisation also condemned Section 6 (3) of the Bill which allows the minister to issue “any other directive” to a service provider.
ZLHR said it was ironic that Section 8 of the Bill sought to ensure that in prosecutions, courts would be forced to use information obtained under this legislation when they never had a stake in deciding whether the collection of that information had been reasonable or necessary.
“There is complete usurpation of the court’s powers and it risks being constrained to use information that was quite clearly obtained unfairly and unreasonably,” ZLHR said.
Under the Bill, Internet service providers (ISPs) are required to install at their own cost hardware and software facilities and devices to enable interception of communications.
In addition, ISPs are required to store communications-related information to establish connections to the monitoring centre to route the intercepted communications and also to store detailed identity information on all their customers while prohibited from disclosing any information about warrants they receive and communications intercepted except to authorised persons.
The proposed legislation stipulates penalties of a fine or jail sentence ranging from three years to five years for those who fail to comply with its provisions.
In relation to these provisions, a submission made to parliament earlier this month by the Zimbabwe Internet service providers (Zispa) contends the Bill saddles them with huge financial and technical difficulties.
“Service providers are going to have to bear the potentially extremely high capital and forex costs of the necessary hardware and software. By contrast, under South African legislation, there is provision for the state to bear the cost of purchase of equipment that is placed in a pool from which it is then issued to specific providers when a warrant is issued,” Zispa said.
The organisation added that each operator needs an estimated over US$1 million for the required equipment, figures it said would push members out of business even if the foreign currency necessary is available for purchase.
On lack of judicial overview, Zispa noted that in China legislation was recently passed stipulating that judges must first approve all surveillance operations. The service providers added that it would be impossible to assure clients that normal personal and business communications would be free from interception to the detriment of secure financial transactions or at worst advise them on what must not be communicated for one not to fall prey to the provisions of the Bill.