Parliament is in recess

BILL WATCH 26/2014

[12th June 2014]

Parliament is in Recess until Tuesday 1st July

World Cup Kicks Off in Brazil Today

Unfinished Business in Parliament

What is the Status of SI 142/2013? Postal and Telecommunications (Subscriber Registration) Regulations

a.k.a. Zimbabwe’s Online Spying Law ?

Statutory Instrument [SI] 142/2013 – containing the Postal and Telecommunication (Subscriber Registration) Regulations – was gazetted on 27th September 2013, and came into operation only a few days later, on 1st October 2013. Readers may remember the largely hostile reaction reported in the press at the time, under headlines such as Zimbabwe’s Online Spying Law, Government to Spy on Cellphones and A Spies Charter. The constitutionality of the regulations was then questioned by the Parliamentary Legal Committee. This bulletin sets out what should happen next. Meanwhile the regulations are still in force, unchanged.

Summary of the Regulations

[Full SI is available from Veritas via the addresses given at the end of this bulletin.]

Registration of subscriber information by service providers The regulations prohibit “service providers” [i.e. organisations providing telecommunication services such as cell-phone services, telephone services and internet access] from providing services to any customer unless they have obtained and recorded basic information about the customer’s identity – full names, residential address, nationality, ID particulars, SIM card or telephone number etc. Service providers must store this information for as long as they provide services to a customer and for five years afterwards.

Databases of subscriber information Service providers must keep registers recording the subscriber information collected, and must provide the Postal and Telecommunications Regulatory Authority of Zimbabwe [POTRAZ] with access to and copies of their registers on demand and also supply POTRAZ with regular updates. POTRAZ must maintain a central database of this information.

Disclosure of subscriber information The regulations emphasise repeatedly that subscriber information held by service providers and in POTRAZ’s central database is confidential. Outside access is prohibited, except on limited grounds, which include assisting emergency services or law enforcement agencies [a term which is not defined but which presumably includes the CIO], safeguarding national security, or for approved educational and research purposes. POTRAZ may give information in its central database to a law enforcement agent only if it is requested in writing by an officer of or above the rank of Assistant Commissioner of Police or an equivalent rank in another force, but must not do so if the disclosure would constitute a breach of the Constitution or any other enactment, or constitute a threat to national security.

The regulations do NOT directly authorise “tapping” of calls and e-mails The regulations deal only with “subscriber information”. They do not cover supplying information regarding calls made, or e-mails or text messages sent, by subscribers or customers. So, they do not directly allow government agencies to eavesdrop on phone calls or to intercept e-mails or text messages.

At most, the regulations may facilitate eavesdropping or interception by law enforcement officers under the Interception of Communications Act. Under that Act law enforcement officers can apply to the responsible Minister for a warrant authorising them to intercept communications including calls, e-mails and messages. If they know the personal particulars of people whose calls and messages they want to intercept, this may assist them in applying for interception warrants.

Note: A full analysis of the regulations was provided in Bill Watch 49/2013 of 7th October 2013, in which it was suggested that it was unlikely the Constitutional Court would hold them to inconsistent with constitutional rights to privacy and free expression. Bill Watch 50/2013 of the same date pointed out careless errors in drafting and the fact that there had been no process of public consultation before the regulations were gazetted and brought into operation at short notice.

Adverse Report from Parliamentary Legal Committee

The Parliamentary Legal Committee [PLC] only became operational in November. So SI 142 was not immediately subjected to the constitutionally required scrutiny by the PLC. [See below for an outline of the PLC’s role in Parliamentary oversight of statutory instruments.] On 5th March the presiding officers announced in both Houses of Parliament that the PLC had returned an adverse report on SI 142, expressing its concerns about infringements of constitutional rights to privacy and freedom of expression.

Summary of the Adverse Report

[Full report available at the addresses given at the end of this bulletin.]

After a full description of the contents of the regulations and a brief survey of SIM card registration elsewhere, the report considers whether the regulations infringe the constitutional rights of privacy and freedom of expression. It points out that the creation of databases of subscriber information eliminates the anonymity of communications, facilitates location-tracking and simplifies surveillance and interception under the Interception of Communications Act, and exposes persons to identity theft. The conclusion is that the regulations need amending to align them with the Constitution, in particular, to guarantee judicial oversight over access to subscriber databases. Also emphasised is that Zimbabwe badly needs a comprehensive data protection law.

SI 142 and Adverse Report Still to be Considered by Parliament

Immediately after receipt of the adverse report, the presiding officers, in compliance with the Constitution and Standing Orders, added items to the Order Papers of both Houses for consideration of the report. This consideration has not yet taken place, and the item remains on both Order Papers for when Parliament resumes on 1st July. The reason given for this delay is that there is a real possibility the report will be withdrawn by the PLC, as the Minister of Media, Information and Broadcasting Services has indicated willingness to amend the regulations as suggested. If the PLC finds the Minister’s amendments satisfactory, it can withdraw the adverse report, which would render consideration by the Senate and the National Assembly unnecessary. [See below for the PLC’s role in relation to statutory instruments and the Parliamentary procedures that must follow an adverse report.]

Parliamentary Oversight of Statutory Instruments

Statutory Instruments are generated, in terms of Acts of Parliament, within Ministries or, under the supervision of Ministries, by subordinate law-making authorities such as local authorities and statutory bodies. Which Ministry is responsible in a particular case depends on which Minister has been assigned to administer the Act concerned [Bill Watch 6/2014 of 18th February covered the latest assignments of Acts by the President].

As described in the rest of this bulletin, Parliament does have a constitutional oversight role over statutory instruments, which is exercised by

• the Parliamentary Legal Committee, and

• and the two Houses of Parliament.

The Parliamentary Legal Committee and Statutory Instruments

As regular Bill Watch readers will know, the Constitution provides that no Bill can be finally passed by Parliament without the PLC having reported on its constitutionality. So every Bill has been scrutinised and reported on by the PLC before being gazetted and becoming law as an Act.

With statutory instruments, on the other hand, the PLC scrutiny required by the Constitution occurs only after they have been gazetted as law. Section 152 provides that the PLC must scrutinise every gazetted statutory instrument and report to Parliament whether it considers any provision in the statutory instrument contravenes any provision of the Constitution or is ultra vires its enabling Act. In addition, Parliamentary Standing Orders require the PLC to report whether a statutory instrument has certain other defects, such as errors or omissions that need to be corrected or provisions more properly a matter for an Act of Parliament.

Effect of an adverse PLC report raising a constitutional contravention A PLC report pinpointing a constitutional contravention in a statutory instrument activates the procedure laid down by paragraph 9 of the Fifth Schedule to the Constitution. Both Houses of Parliament must consider the report and vote on whether the statutory instrument contravenes the Constitution as reported. If a resolution affirming a constitutional contravention is passed by either House, the Clerk of Parliament must report the resolution to the authority responsible for the regulations and this authority, whether it is the President, a Minister or some other authority, must then, within 21 days—

• repeal the statutory instrument or the offending provision, or

• apply to the Constitutional Court for a declaration that the statutory instrument is constitutional. If the Constitutional Court grants the application, the statutory instrument will continue in force; if it dismisses the application, it will nullify the statutory instrument or the offending provision. Pending the court’s decision, the statutory instrument is automatically suspended.

Effect of an adverse PLC report that a statutory instrument is ultra vires If the PLC reports that a provision in a statutory instrument is ultra vires, the report must be considered by both Houses and if either House resolves that the provision concerned is indeed ultra vires, that provision immediately ceases to have legal effect, and the Clerk of Parliament must without delay give public notice in the Government Gazette of the passing of the resolution and of its effect, i.e., that the offending provision has been nullified.

Effect of other adverse comments by PLC Where the PLC reports that a statutory instrument is marred by errors or omissions, it will be up to the authority responsible for the statutory instrument to decide whether or not to act on the report. As the majority of the PLC’s members must be lawyers, and as the PLC is assisted in its work by Parliamentary Counsel, also a lawyer, such reports should be treated with appropriate respect and implemented wherever feasible.

PLC and draft statutory instruments:

The PLC must also consider any draft statutory instrument referred to it by the Minister or other authority wanting to make the statutory instrument and report back to the sender any constitutional contraventions it has identified. Unfortunately, this provision for an advisory opinion is seldom, if ever, used by those empowered to make statutory instruments.

Withdrawal of an Adverse Report Before Consideration by Parliament

The Constitution allows the PLC to withdraw an adverse report before it is considered by the Senate or the National Assembly, but only if it is satisfied that it has been repealed or amended in such a way as to remove the contravention of the Constitution or the enabling Act [Constitution, Fifth Schedule, paragraph 9(1)].

This brings us back to the adverse report on SI 142 and the delay in its consideration by the Senate and National Assembly. It is commendable that the Minister is prepared to make amendments in compliance with the report without Parliamentary resolutions having to be passed. While it is regrettable that the further consultations between the Minister and/or POTRAZ and PLC are taking so long, the gazetting of suitable amendments would permit a satisfactory conclusion to this matter.

Important Reminder: Courts Still Have Power to Invalidate Statutory Instruments

Checking by the Attorney-General’s Office – and scrutiny by the PLC – are intended to reduce or eliminate the appearance in the Government Gazette of statutory instruments that are unconstitutional or otherwise legally unsound. Nevertheless, the courts retain full power to invalidate statutory instruments where appropriate. And courts are not bound by legal opinions expressed by the PLC. So, a non-adverse report from the PLC does not guarantee that a statutory instrument will not be declared invalid if challenged in court. Similarly, an adverse report will not necessarily persuade a court to reach the same conclusion as the PLC.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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