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ZimbabweSurveillance under the garb of rule of lawMISA-ZimbabweNhlanhla Ngwenyawww.misazim.comIntroductionZimbabwe is a multi-party democracy with a populationof 13 million, located in southern Africa. As thecountry’s political crisis worsened between 2000and 2008, with swelling opposition against the rulingZANU-PF party which has governed Zimbabwesince its independence in 1980, the government reactedby enacting a raft of laws meant to control andrestrict free and active citizenry. These included theInterception of Communications Act. The law providesfor the “lawful interceptions and monitoringof certain communications during their transmissionthrough a telecommunication, postal or anyother related system or service in Zimbabwe.” 1While it was always suspected that the governmentconducted communications surveillance of its opponentsand human rights activists, the enactmentof the law simply provided a legal basis for thepractice. In October 2013 the government soughtto entrench the surveillance law through StatutoryInstrument (SI) 142 on Postal and Telecommunications(Subscriber Registration) Regulations. The SIprovides for the establishment of a central databaseof information about all mobile phone users in orderto assist emergency services and law enforcementagencies and to protect national security. This wasdespite the fact that five months prior, in May 2013,Zimbabwe had adopted a new constitution withbetter safeguards for the enjoyment of freedom ofexpression. And as things stand there is discord inthe legislative framework caused by disharmonybetween the statutes and the constitution, providingfertile ground for violation of citizens’ basicliberties including their right to privacy.Policy and political backgroundAfter 33 years of debate and failed attempts atconstitutional reform, Zimbabwe finally adopted anew constitution in May 2013 to replace the LancasterHouse Constitution, which ushered in the1 The Interception of Communications Act (Chapter 11:20), enactedin Zimbabwe in August 2007.country’s independence. Key among the contentof the new charter is an expansive Bill of Rights,which among other liberties, grants for the firsttime in Zimbabwe’s history explicit guarantees forfreedom of expression, media freedom and accessto information.Despite this, the country is still to align its lawsto the new constitution, thereby ensuring that agamut of laws remain in place to curtail freedom ofexpression. These include the Access to Informationand Protection of Privacy Act, the Criminal Law(Codification and Reform) Act, the Interception ofCommunications Act, and the Official Secrets Act,among other laws. These acts separately and/orcollectively severely erode Zimbabweans’ right tofreedom of expression. Although the Interception ofCommunications Act is the one that is more relevantto online communication, the authorities can stilluse the other laws to press charges against thosedeemed to have crossed the line when expressingthemselves through online platforms. The recentarrest of a teenager, Gumisai Manduwa, 2 over aFacebook post on President Robert Mugabe, andthreats of the arrest of those who may have providedinformation to an online Facebook character calledBaba Jukwa, 3 demonstrate the extent to which thestate can go in trying to sniff out those expressingthemselves online.2 Gumisai Manduwa appeared in court in January 2014 facingcharges of contravening Section 33 of the Criminal Law(Codification and Reform) Act for allegedly insulting PresidentRobert Mugabe. Manduwa had posted on Facebook claims thatMugabe had died and his body was being preserved in a freezer.Manduwa’s arrest was the second such case following the arrest in2011 of Vikas Mavhudzi, who had also posted a Facebook commentthat suggested the opposition should emulate pro-democracyprotests in Egypt. He was charged with subversion and spent closeto a month in prison. He was subsequently acquitted in 2013 forlack of evidence.3 Baba Jukwa is a faceless online blogger with a Facebook accountthat has gained popularity in Zimbabwe for exposing allegedunpleasant secrets of the government and the ruling party, ZANU-PF. On 11 May 2014, a state-run newspaper, The Sunday Mail,alleged that individuals behind the Facebook account had beenunmasked by unnamed hackers in New Zealand, who had hackedinto Baba Jukwa’s private Google account. The hackers reportedlythen passed the information to Zimbabwean state authorities.Since then the state-controlled newspapers have been feasting onthe story, serialising private correspondence between Baba Jukwaand his associates as well as informants calling on the authoritiesto arrest them and charge them under the country’s security laws.Legislative paralysis provides roomfor surveillanceAlthough the new Zimbabwean constitution hasreceived its fair share of criticism, especially as itrelates to executive authority, 4 there is generalconsensus that it is far more democratic than itspredecessor, as it seeks to promote and protectwholesale civil liberties. Further, it obligates the “[s]tate and every person, including juristic persons,and every institution and agency of the governmentat every level” to “respect, protect, promote and fulfilthe rights and freedom set out” in the Declarationof Rights provided for in Chapter 4 of the constitution.One of the key elements of the constitution isits protection of citizens’ right to privacy.Article 57 states:Every person has the right to privacy, which includesthe right not to have—(a) their home, premises or property enteredwithout their permission;(b) their person, home, premises or propertysearched;(c) their possessions seized;(d) the privacy of their communications infringed;or(e) their health condition disclosed.This provision is anchored on international humanrights law and instruments such as the UniversalDeclaration of Human Rights and the InternationalCovenant on Civil and Political Rights, which Zimbabweratified in 1991.Besides constitutionally outlawing infringementof citizens’ right to privacy, the constitutionalso guarantees citizens’ freedom to express themselvesand their right of access to information. Itdoes this under Articles 60 and 61.For example, Article 60 stipulates as follows:(1) Every person has the right to freedom ofconscience, which includes—(a) freedom of thought, opinion, religion or belief;and(b) freedom to practise and propagate and giveexpression to their thought, opinion, religionor belief, whether in public or in private andwhether alone or together with others.4 New Zimbabwe. (2013, February 5). NCA slams Constitution, urges‘No’ vote. New Zimbabwe.com. www.newzimbabwe.com/news-10197-NCA+urges+rejection+of+new+constitution/news.aspxArticle 61 states:(1) Every person has the right to freedom ofexpression, which includes—(a) freedom to seek, receive and communicateideas and other information;(b) freedom of artistic expression and scientificresearch and creativity; and(c) academic freedom.Cognisant of the fact that freedom of expression isnot absolute, the constitution then provides preciseand narrow scope within which the right could belimited under Article 61 (5). These limitations arein line with international instruments on freedomof expression and in particular satisfy the threeparttest for measuring restrictions on freedomof expression; this test has been elaborated on injudgments delivered by international courts on mattersrelated to human rights treaties. 5However, despite this development, Zimbabwehas continued to retain interception of communicationlaws – disguised as upholding the rule oflaw – specifically the ICA and SI 142, which containprovisions that are in conflict with the new constitutionaldispensation. For example, while the newconstitution provides for the right to privacy andfree expression, the ICA legalises the interceptionof one’s communication and actually establishesan interception of communications unit named theMonitoring of Interception of Communications Centre.The Centre is staffed, controlled and operatedby designated experts of the state. 6 The process ofestablishing the Centre, its composition and workis opaque, and as a result there is no accountabilityaround its activities.Although the ICA provides for procedure for interception,the requirements to obtain a warrant ofinterception remain vague and subject to abuse. Accordingto the law, an application for interceptionmay be made to the ministry responsible for transportand communications by the Chief of the DefenceIntelligence, the Director General of the President’sDepartment of National Security, the CommissionerGeneral of the Police and the Commissioner Generalof the Zimbabwe Revenue Authority. A warrant forinterception can be issued where there is “reasonablesuspicion” that a serious offence has been, isbeing, or will probably be committed, or to prevent5 Center for Law and Democracy. (2010). Restricting Freedom ofExpression: Standards and Principles. Background paper formeetings hosted by the UN Special Rapporteur on freedom ofopinion and expression. www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf6 MISA-Zimbabwe. (2010). An Analysis of Amendments to MediaLaws in Zimbabwe Since the Year 2005. Harare: MISA-Zimbabwe.280 / Global Information Society Watch Zimbabwe / 281