ries unconstitutional provisions in that it threatens citizens’ fundamental rights to privacy, freedom of conscience, expression and association.
MISA-Zimbabwe is concerned that the Bill attempts to overturn the outcome of the Law Society of Zimbabwe Vs the Minister of Transport and Communications, and the Attorney General’s case of 2003 in which the Supreme Court ruled that freedom of expression includes freedom from interference with one’s correspondence (electronic or postal).
MISA-Zimbabwe notes that the case also made it clear that laws such as the Interception of Communications Bill with vague provisions which bestow extremely broad and unfettered powers to an individual without checks and balances are not reasonable.
With terms such as “any directive” as in Section 6 (2) (a), and “any other information” in Section 10 (1) (c), the Bill renders wide discretionary powers to individuals. The last paragraph of the summary section of the Bill states that the Minister shall be empowered to make regulations for all matters which in his opinion, are necessary or convenient to be prescribed. It is MISA-Zimbabwe’s considered view that this constitutes a bad law.
This Bill also introduces unprecedented grounds for law making. The Minister is empowered to legislate for convenience or expedience to the benefit of the government, and potentially to the detriment of citizens.
MISA-Zimbabwe notes that it remains unclear why the Attorney General has been granted review powers, and the right to be consulted on certain issues under the Bill. Review powers should be given to High Court judges.
Although attempts are made at defining the terms “national security”, and “organised criminal group”, MISA-Zimbabwe expresses concern that the issues surrounding these terms remain largely debatable and vague.
The definition of Minister also leaves the legislative function open to all sorts of possibilities. Any person whom the President, in his whim and caprice, wishes to lend legislative powers, could end up deciding on these critical issues affecting civil liberties, notwithstanding the competence or otherwise of such a person to deal with the relevant issues. This cannot be acceptable in a democratic society.
The Bill makes very little provision for citizens to respond to the allegations that lead to warrants being issued against them. That is contrary to the principles of natural justice, which require that both parties to an issue must be given a fair chance to present their respective accounts on the subject issue.
The duration of warrants (three months) is far too long. Why should a citizen’s privacy be under invasion for such a long time? The Original Bill provided that the life of a renewed warrant would be only one month long. The New Consolidated Text extends it to three months, which is an exacerbation of the infringement of the citizen’s liberties.
MISA-Zimbabwe believes that this Bill is an illustration of the government’s determination to criminalise matters that should ordinarily be dealt with in civil courts or through alternative dispute resolution.
The Bill is grossly unfair as it seeks to impose financial obligations upon corporate citizens, in a fashion that is not justifiable in a democratic society.
Under the Bill, private, confidential and personal information may be intercepted and abused by the system. Lawyer-client confidentiality, banker-customer confidentiality, doctor-patient confidentiality, husband-wife confidentiality, and all other forms of confidentiality, shall be breached should the Bill be enacted into actual law. Therefore, service providers including those in the Internet Service Provision, the banking, the legal, and other industries and profession, will no longer be able to assure their clients that issues discussed, or information conveyed in the normal transaction of business, will remain private and confidential
Service providers in the communications industry will incur huge capital and foreign currency expenses for the acquisition of hardware and software that will become necessary for compliance with the proposed law. Most players in the industry will be driven out of business.
MISA-Zimbabwe notes that the in-house and mass media industries could also be adversely affected as news materials could be intercepted in the course of transmission, thereby making it impossible or difficult for the relevant media houses to operate. That would also naturally limit the nation’s access to information but infringe on freedom of expression rights.
While the Bill attempts to present the government as a friendly authority as refered to in Section 9 of the Bill, it is nowhere near that. This is a decree as Section 9 (2) of the Bill, declares that “a service provider who fails to give assistance … shall be guilty of an offence and liable to a fine …”.
Suffice to say the Bill fails to disclose the solid objective behind the proposal for interception of communications and the impending snooping into private and professional communications.
It is MISA-Zimbabwe’s unequivocal position that the Interception of Communications Bill 2006, is a retrogressive and repressive piece of law that has no place in a democratic society.
For any questions, queries or comments, please contact:
Nyasha Nyakunu
Research and Information Officer
Media Institute of Southern Africa – Zimbabwe
84 McChlery Ave
Eastlea
P.O Box HR 8113
Harare
Zimbabwe
Tel/Fax: 263 4 776165 / 746838
Cell: 263 11 602 448
Email: misa@misazim.co.zw
Website: www.misazim.co.zw