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a threat to national security, the economic interestsof the state or public safety. 7 There is no clarity onwhat constitutes reasonable suspicion and how itis determined. Neither is there an explanation onwhat constitutes sufficient grounds to prove that anoffence is likely to be committed. Further, the Actdefines “serious offence” as conduct constitutingan offence punishable by a maximum jail sentenceof up to four years. There are a number of offencesthat fall under this category, which include abortion,assault perjury, reckless driving and violatinga corpse. Lack of clearly listed offences consideredserious under the interception law leaves the Actvague and open to abuse by those in authority.To make matters worse, the minister’s decisionsare not subject to court review. Instead, it is onlythe Attorney General, who is a political appointee,who has authority to review the conduct of the ministerand the exercise of their power. And this is onlydone within three months of the end of each year,thereby allowing potential abuse of the law to gounchecked and giving state agents latitude to interceptcitizens’ communications without restraint.Besides giving wide discretionary powers inthe administration of the Act to the relevant ministerwhile circumventing effective judicial oversight,the Act also places harsh duties on service providersto undertake interception and monitoring, andgives authorities any assistance they may require tosnoop into private communication. Refusal to provideassistance is punishable by up to three yearsimprisonment.There are no provisions in the Act guaranteeingthe safe keeping or storage of information ordata collected through interception. Neither is anindividual whose information has been interceptedinformed after the completion of investigations, nordoes the law provide specific timeframes withinwhich the information should be destroyed whenno longer needed. Instead, the Act simply enjoinsthe responsible state officer to destroy it “as soonas possible after it is used for the purposes of (the)Act.” 8Instead of addressing the law’s patentlyintrusive nature and aligning it with the new constitution,the state seemingly entrenched the harmfuleffects of the Act through SI 142. The Instrumentcalls for the establishment of a database of informationabout all mobile phone users in the country;compulsory SIM card registration; and the releaseof private information to the police in the absenceof a search warrant, supposedly with the objec-7 Ibid.8 Section 17 of the Interception of Communications Act.tive of assisting emergency services, assisting lawenforcement agencies and safeguarding nationalsecurity. 9 While it is acknowledged that concernsaround e‐crimes and state security would requirelegislative intervention, SI 142 generally fails thedemocratic test as it simply legalises intrusion ofcitizens’ privacy guaranteed in the constitution.As Gwagwa 10 argues, for example, mandatoryregistration provides the government with themeans to track citizens’ whereabouts – and by extensionthe people with whom they associate – andcreates a situation in which personal data couldtheoretically be shared between government departments,allowing for the creation of individualprofiles based on data stored elsewhere.Gwagwa further argues that while the regulationsstipulate that no information shall be releasedif doing so would violate the constitution, by empoweringthe police to request information withoutinforming the individual concerned and withoutjudicial oversight, citizens are not provided time toobject to the release of their data based on the constitutionalrights granted to them.It is against these constitutional deficienciesthat in March 2014 the Parliamentary LegalCommittee, whose mandate is to assess the constitutionalityor legality of laws made by parliament,found the regulations to be unconstitutional. Thiswas due to their potential infringement of Article57 providing for the right to privacy and Article 61guaranteeing freedom of expression. 11 The Committeerecommended that the regulations should beamended to bring them into line with the constitutionand guarantee judicial oversight over access tosubscriber databases.While government subsequently repealed SI142 in June 2014 and replaced it with Statutory Instrument95 in response to the Parliamentary LegalCommittee’s report, the import of the new regulationslargely remain similar to the old instrument.It is the failure and/or reluctance to amendthe law that continue to provide the legal basis toerode citizens’ freedoms in complete disregard forthe constitution and international protocols on theright to privacy.ConclusionWhile it is not uncommon for countries to promulgatelaws that seek to safeguard their national9 Gwagwa, A. (2014). State Security and Personal Liberty in theDigital Age. Paper presented at a discussion on surveillance inHarare, 8 May 2014.10 Ibid.11 Veritas. (2014) Bill Watch Report 15/2014. Zimbabwe Situation.www.zimbabwesituation.com/news/bill-watch-152014-19th-marchsecurity and prevent e‐crimes through interceptionof communications, this should not be to the detrimentof citizens’ fundamental freedoms. Aside fromthreatening the very freedoms guaranteed in theconstitution, the interception of communicationslaws that the state can use to conduct surveillanceof its citizens fails the democratic test in a numberof ways when juxtaposed against international humanrights law and standards on communicationssurveillance. For instance, there is no transparencyin the establishment and operations of the monitoringand interception body, which fosters arbitraryactions that infringe on citizens’ right to privacy. Inother jurisdictions such as Australia, New Zealandand the UK, independent commissions that reportto parliament conduct interception and undertakepublic reporting processes. Such a commission isimperative, especially in Zimbabwe, where thereis mistrust of those in power. 12 Also, one of thekey principles in ensuring democratic legislationson surveillance is judicial oversight in the implementationof the law. This is not the case with theZimbabwean laws. As a result, the instruments donot contain the requisite checks and balances thatwill guarantee the balance between the need for interceptionand protection of citizens’ rights, whichis key in preventing the arbitrary abuse of the law. Inessence, the interception laws in Zimbabwe do notmeet the minimum standards as prescribed in the13 International Principles on the Application of HumanRights to Communications Surveillance. 13 ThePrinciples call for:• Clear laws governing how state authorities mayaccess communications data• Communications data to be given the same protectionas the content of communications• Access to communications data to be authorisedby a competent judicial authority• Prior or post user notification that a request forcommunications data has been authorised• Transparency about the use and scope of communicationssurveillance powers• Effective public oversight of the implementationof surveillance laws• Better protection for the integrity of communicationsand systems12 MISA-Zimbabwe. (2010). Op. cit.13 The Principles were developed by a coalition of civilsociety organisations and have been endorsed bymore than 250 organisations across the world. See:en.necessaryandproportionate.org/text• Strong privacy safeguards in mutual legal assistancetreaties• The introduction of criminal offences against illegitimateaccess to communications data• The protection of whistleblowers. 14Action stepsWhile Zimbabwe is still to publicly record incidentswhere the interception law has been usedagainst citizens, there is general fear that the stateis snooping. This fear is grounded on the publicationof information and correspondence as well asunflattering details of government opponents andcivil society activists. This has resulted in eitherself-censorship when it comes to electronic correspondenceor the exercise of extreme cautionin how people express themselves through onlineplatforms. In this regard it is therefore critical thatthe Zimbabwean government:• Repeals its interception of communications andsurveillance laws in line with the new constitutionto protect citizens’ right to privacy andfreedom of expression.• In its review of the laws, the government shouldensure that the new acts are in line with regionaland international instruments on the right toprivacy and expression, as well as in sync withinternational principles in formulating democraticlegislation on surveillance.Civil society and media freedom groups should:• Provide policy alternatives that will inform theirlobbying of state actors on policy and legislativereforms.• Build public support for legislative reforms byraising awareness on the right to privacy andits relevance to Zimbabweans’ livelihoods andtheir democratic well- being.• Seek judicial intervention through test litigationaround provisions of the law so as to createlegal precedents that will prompt the review ofthe law as well as inform its content.• Forge alliances with like-minded regional organisationsto lobby states to comply with theirown international agreements.14 Article 19. (2013, September 20). Principles on Surveillance andHuman Rights: UNHRC must take action on surveillance. Article 19.www.article19.org/resources.php/resource/37251/en/principleson-surveillance-and-human-rights:-unhrc-must-take-action-onsurveillance282 / Global Information Society Watch Zimbabwe / 283