It is now confirmed that the government of Zimbabwe ordered mobile network operators (MNOs) to shut down the internet and social media communication platforms, including WhatsApp, Twitter and Facebook, which are widely used by Zimbabweans.
This is now public knowledge thanks to Econet, the biggest MNO, which issued a statement to the effect that in carrying out the internet and social media shutdown, it had merely complied with the law after the government issued a “written warrant” in terms of section 6 of the Interception of Communications Act (hereafter, “the Act”).
This is a brief examination of the legal aspects of the internet and social media shutdown and the response of the MNOs.
Warrant or interception?
Econet’s statement says it was responding to a “written warrant”. If it was indeed a “written warrant”, it could not have been used to block internet and social media communications. This is because the scope of a warrant is specifically defined by the Act and it does not cover blocking communications. It only permits the “interception” of communications and this is strictly defined by law.
We find the meaning of interception in the definition section of the Act. It describes interception using a telecommunication system as “to listen to, record, or copy, whether in whole or in part”. Nowhere in this definition is there any mention of or reference to blocking communications, not for individuals, let alone the entire country.
What the law permits is that in very limited circumstances the state can eavesdrop on private communications. Indeed, the illegality of interception unless as authorised by law or by consent is clearly stated in the Act. The Monitoring of Interception of Communications Centre is sole authority with power to intercept communications and MNOs provide assistance when called upon to do so. This is done in terms of a warrant.
The Act sets strict conditions for the issuing and scope of a warrant as set out in section 7.
The primary element is specificity: a warrant has to be very specific to the individual who is the subject of interception.
For example, it requires the warrant to “specify the name and address of the interception subject and the manner of interception”.
In short, a warrant cannot be general, vague and amorphous otherwise it would be non-compliant and unlawful. There has to be justification for the warrant in relation to a specific person or persons who must be named and whose communications are to be the subject of interception.
On the available information, there is nothing to suggest that MNOs were given specific names of persons whose communications were to be the subject of interception.
In fact, there is no evidence of interception. It was simply an order to block the Internet and social media. If, therefore, the legal authority under which the shutdown was done was a warrant as stated in Econet’s statement, it is unlawful because it purports to achieve what the law does not permit it to do. This alone was a ground to challenge the so-called “written warrant”.
We have observed that blocking the Internet and social media could not possibly be done under a warrant because blockage does not qualify under the definition of interception.
It is possible that Econet may have made an error in its statement by casually referring to something else as a “written warrant”. So what could that be?
The answer potentially lies in another part of the said section 6 of the Act.
Probably a directive?
Section 6(2) of the Act gives power to the Minister where circumstances so require, to issue “any directive to a service provider not involving any interception or monitoring of communications” instead of issuing a warrant. In other words, the minister may issue a directive which is not concerned with interception or monitoring of communications.
This reads like an exception to the power to issue a warrant. But ironically, it seems to open the floodgates of arbitrary and unchecked power. This is because it gives the minister room to go beyond the interception or monitoring of communications, for which the Act was originally enacted, and allows him to issue wide-ranging and sweeping directives.
Could power to issue such a directive include an order to block the Internet and social media? This is possible but by no means obvious and clear-cut. It would certainly be subject to legal challenge so that the scope of such a directive can be defined, otherwise, as we will show, its unchecked exercise can be fatal to MNOs and related businesses.
More fundamentally, if the legislature wanted the minister to have a specific power to order the blocking of Internet and social media communications, it would have said so in clear terms. It would not have limited the scope of interception to listening, recording and copying communications. Such a drastic power cannot be drawn from a vague and amorphous provision.
Econet’s statement ought therefore to have referred to a “written directive”, rather than a “written warrant” because there is a vast difference between the two. A written warrant is specific and limited in scope, as we have seen, whereas a written directive is broad, open-ended and sweeping in scope.
It is clear evidence of the draconian character of the legislation — buried under that provision in section 6(2)(a). It is written like an exception but it is actually broader and far more invasive than the main rule.
The one important limitation of this power is the constitution, which sets out various rights including free speech, privacy and dignity. However, we have deliberately skipped the constitutional argument for purposes of this article because we think it can be argued even without reference to constitutionality. But all the more reason why it warrants a legal challenge.
To illustrate the hazardous nature of this provision for businesses, a minister can order a MNO to block services, including telephone calls and text messaging, leaving the company idle and without business. It will be holding a licence but without business.
It is inconceivable that faced with such a directive companies in this area would feebly comply as if they were powerless and without rights. Faced with such an existential threat, the companies would most likely challenge such a directive.
As we will observe shortly, they can or could have challenged the directive if they did not agree with it. By allowing the government to exercise this power unchecked and virtually unchallenged, MNOs have allowed a bad precedent to be set and it may come back to haunt them in future.
Could it be challenged?
Did the MNOs really have no option but to comply with the directive?
To be sure, it would be foolhardy for anyone to overlook the retributive, unforgiving and vindictive nature of the Zimbabwean regime. In Zimbabwe, challenges to the regime’s authority come with grievous consequences.
In 2003, ANZ, publishers of the Daily News newspaper took a moral stand and refused to register under the infamous Access to Information and Protection of Privacy Act (Aippa). When ANZ went to court challenging the constitutionality of the law, it was turned away before it had even argued the matter on the merits. The court said ANZ had come in with “dirty hands” by reason of non-compliance. It was a ridiculous and ill-conceived decision, one of the worst by Zimbabwe’s Supreme Court but it stalled ANZ’s business for more than five years. One therefore understands the risk and has some sympathy with the MNOs because failure to comply could pose an existential threat to their business. Nevertheless, there is a difference between the ANZ case under Aippa and the current scenario. It is that the Act specifically permits challenges against warrants and directives when they are issued. This facility is provided for in section 18 of the Act.
Section 18 makes provision for appeals against warrants or directives. Subsection 1 states that “Any person who is aggrieved by a warrant, a directive . . . may appeal to the Administrative Court within one month of being notified or becoming aware of it . . .” Subsection 2 gives power to the Administrative Court to “confirm, vary or set aside the warrant, directive or order appealed against”.
The collective effect is that if they were aggrieved by the warrant or directive the MNOs were not without options. If they disapproved of the warrant or directive to block the Internet and social media, they did and still do have an option to appeal against it at the Administrative Court.
They may not have taken this route for at least two reasons: first: they do not disapprove of the exercise of this power by the government. Second: they are scared of standing in the way of the government, even if they disagree with the directive.
If it is the first, the companies are well within their rights to agree with the government. If it is the second, it is a business decision rationally made after weighing the costs and benefits and concluded that challenging it would pose an existential threat. If that is correct, it simply adds weight to the argument that even big business cowers into submission under the weight of a repressive state, something they may not openly admit.
Finally, while the Econet statement refers to a penalty of three years imprisonment for failure to assist the state, there appears to be a misreading of what that penalty relates to. For a start, it is not section 6(2)(b) because that is a completely different provision. Having scoured the Act, we believe they meant section 9(2) of the Act because the provision they quote is identical.
It states, “A service provider who fails to give assistance in terms of this section shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment”. A close look at section 9 and the assistance that is required reflects that it is specifically connected to interception under a warrant.
As we have already observed, interception is specifically defined in the Act and does not include blocking the Internet or social media which is what the State asked Econet and other MNOs to do. That penalty in section 9(2) is therefore merely a threat which does not apply in the specific circumstances. It is the legislature’s fault that section 9(2) is limited to interception and does not cover other directives beyond interception.
Alex Magaisa teaches law at Kent Law School, University of Kent. He has recently been a Reagan-Fascell fellow at the National Endowment for Democracy in Washington DC and a poynter fellow at Yale University, New Haven. He is also a former advisor to Morgan Tsvangirai and advisor to the constitution-making process and writes a weekly blog: www.bigsr.co.uk