MISA Zimbabwe Analysis Of Draft Bill of the Interception of Communications Bill, 2006

Introduction

This is an analysis carried out by the Media Institute of Southern
Africa (MISA) Zimbabwe comparing the 1st and 2nd Draft Bills of the
Interception of Communications Bill. MISA-Zimbabwe makes a commentary of the
serious implications of this proposed law in the last half of this
analysis.

After submissions were made on the Interception of Communication Bill
(H.B 4, 2006) by stakeholders at a Parliamentary Public Hearing, and to
Parliament after the Hearing, the Minister of Justice, Legal and
Parliamentary Affairs - Patrick Chinamasa presented a motion to the House of
Assembly in the following terms:

"That the present text of the Interception of Communication Bill (H.B
4, 2006) currently in the Order Paper be withdrawn and be replaced by a
new consolidated text of the Bill in terms of Standing Order No. 128
and that the new Bill be treated as having been introduced in terms of
Standing Order No. 103 and referred to the Parliamentary Legal
Committee."

The House of Assembly approved the motion on Tuesday 7th November 2006.
A new Consolidated Text of the Bill has now been developed, pursuant to
the subject motion.

This presentation compares to the two sets of documents, and provides a
critical analysis of the proposed communications law.

1.Technical and Quantitative Comparison between the ORIGINAL BILL,
with the NEW CONSOLIDATED TEXT

In this presentation, the original Interception of Communication Bill
(H.B 4, 2006, that was published in the Government Gazette of 26 May
2006, shall be referred to as the "Original Bill". The revised document
that has replaced to Original Bill pursuant to the motion that was
approved by the House of Assembly on Tuesday 7th November 2007 shall be
referred to as the "New Consolidated Text."

There are at least 38 differences between the Original Bill and the New
Consolidated Text. Certain differences are major, some are minor,
others are significant and many are insignificant. The differences are as
follows:

1.1 In the summary contained in the introductory part of the New
Consolidated Text, relating to "Part V" of the Bill, Appellant Jurisdiction
is transferred from the Minister to the Administrative Court

1.2 Still in the same paragraph (referred to in 1.1 herein above,
under the Original Bill there is provision for a two-stage appeal process,
that is firstly an Appeal to the Minister, then secondly an Appeal to
the Administrative Court. Under the new consolidated text, Appellant
jurisdiction lies solely with the Administrative Court. It is a one-tier
Appeal process.

1.3 The summary for Part V under the New Consolidated Text bestows
upon the Attorney General (AG), review powers in respect of interception
issues. The relevant summary under the Original Bill makes no mention
of the review powers for the AG.

1.4 On the Index, on the s7 part thereof, the Original Bill refers to
"Scope of Warrant" only, yet the New Consolidated Text expands the
matter to "Scope of Warrant and Renewal thereof."

1.5 The s10 item on the Original Bill index carries the word
"telecommunication". The New Consolidated Text contains "telecommunications"

1.6 The New Consolidated Text's index includes "Review of Exercise of
Minister's powers under this Act" as s19. This item is absent from the
Original Bill.

1.7 In the Interpretation or definitions section, for the definition
of the term "authorized person", the Original Text refers to s5 (1) but
the New Consolidated Text simply refers to s5.

1.8 The Original Text contains a definition for the term
"Interception Subject" or "target". The term and its accompanying definition are
omitted in the New Consolidated Text.

1.9 The New Consolidated Text defines the term "national security of
Zimbabwe". There is no such definition in the Original Text.

1.10 The New Consolidated Text also defines the term "organized
criminal group".

Again, there is no such definition in the Original Text.

1.11 The definition of the term "serious offence" under the New
Consolidated Text differs from the one offered in the Original Text. Whereas
the Original Bill simply assigns the definition provided in the Serious
Offences (Confiscation of Profits) Act (Chapter 9:17) to the proposed
Act, the New Consolidated Text provides an independent definition, that
is: "conduct constituting an offence punishable by a maximum
deprivation of liberty of at least four years or a more serious penalty."

1.12 s4 of the Original Bill provides that "the technical experts shall
give technical advise …", but the same section in the New
Consolidated Text stipulates that "the monitoring centre shall give technical
advice …"

1.13 at the end of s5 (3) (e) of the New Consolidated Text, the word
"and" is inserted. That word does not appear on that spot in the
Original Bill

1.14 The provisions in s6 (1) (a) (i) and (ii) of the New
Consolidated Text are fresh.
The issuance of warrants relating to (i)"a serious offence by an
organised group

…", and (ii) an offence referred to in the Third Schedule or the
Ninth Schedule of the Criminal Procedure and Evidence Act (Chapter
9:07), do not arise in the original Bill.

1.15 In the Original Bill there is a provision [s6 (1) (d) ] for the
issuance of a warrant if "there is a threat to the national interest
involving the State's international relations or obligations." That
clause is omitted in the New Consolidated Text.

1.16 s7 (1) (a) of the New Consolidated Text starts with "subject to
subsection (2), ..". The provisions of the same section in the Original
Bill are not made subject to any other part of the Bill. The phrase
"subject to subsection (2), .." does not appear in the Original Bill.

1.17 S7 (1) (a) also has the effect of extending the life of a renewed
warrant from one month, to three months. Clearly the duration over
which a citizen's right to communication is interfered with is longer
under the New Consolidated Text than it is in the Original Bill.

1.18 The Provisions in s7 (1) (a) (i) and (ii) in the New Consolidated
Text do not appear in the Original Text. These provisions relate to
warrants that may be renewed by the Minister (i) in respect of a serious
offence by an organised criminal group, or (ii) or in relation to
serious offences as listed in the Criminal Procedure and Evidence Act.

1.19 s7 (1) (a) (ii) of the New Consolidated Text also introduces an
aspect that is not included in the Original Bill. This fresh provision
compels the Minister, before issuing a warrant, to consult the Attorney
General (AG), that is in matters relating to offences arising from the
Third Schedule or the Ninth Schedule of the Criminal Procedure and
Evidence Act.

1.20 s7 (2) of the New Consolidated Text does not appear at all in the
Original Bill.This new section is to the effect that "upon
expiry of a warrant … or within six months of such expiry, the warrant
may, for good cause shown by the authorised person, be renewed for a
further period not exceeding three months -

(a) by the Minister in consultation with the AG in respect of a serious
offence by an organised group or in matters relating to national
security, national economic interests, or public safety."

1.21 s7 (3) of the New Consolidated Text is also a whole new provision.
It is not contained in the Original Bill. In the new section, it is
provided that "upon expiry of a warrant … or within six months of such
expiry, the warrant may, for good cause shown by the authorised person,
be renewed for a further period not exceeding three months by the
Administrative Court upon an Ex-Parte application by the authorised person
concerned." (N.B. An Ex Parte application is one that is made by one
party without the other party being called upon to respond to the
allegations raised.)

1.22 s7 (4) of the New Consolidated Text is not included in the
Original Bill. This new section provides that "every renewal that is sought
within six months of the expiry of a warrant that was renewed in terms
of (the law), may be renewed for further periods not exceeding three
months at a time by the Administrative Court upon an ex parte application
by the authorised person concerned."

1.23 Also not featuring in the Original Bill but included in the New
Consolidated Text is s7 (5) which stipulates that "an authorised person
shall notify the Minister in advance and in writing of any application
for the renewal of a warrant …"

1.24 s9 (1) (c) of the Original Text refers to "call-related"
information …, yet the New Consolidated Text 'talks' of "call-relation"
information …

1.25 in the New Consolidated Text, s9 (1) (i) starts with the word:
"that …" The same section in the Original Bill starts from "all
interceptions ….)

1.26 In the New Consolidated Text, the punctuation is slightly changed
by the addition of a comma under s11 (5) (a) between the words "which"
and "alone" - "those the disclosure of which, alone …

1.27 In s11 (6) (a), the draftsman/ woman makes a futile attempt to
correct the bad English that had been used in the Original Bill. The
Original Bill provided that "if a person to whom a notice has been given -

(a)has been in possession of any key to the protected information,
but no longer in possesses it …" In the New Consolidated Text,
relevant portion reads: "… any key to the protected information, but is no
longer possesses it …"

1.28 The Original Bill in its s12 (5) (b) stipulates compliance "with
this section and section 9", but the New Consolidated Text provides for
compliance "with section 9" only, which means that the phrase 'this
section and' has been omitted in the New Consolidated Text.

1.29 Under section 13 (1) (a) of the Original Bill, the proposed law
refers to the execution of "a warrant or directive …". The New
Consolidated Text expands the execution to include: "a warrant, notice or
directive …". That is to say the execution of a notice is fresh to the New
Consolidated Text.

1.30 In the New Consolidated Text, sections 13 (2) and 13 (3) of the
Original Bill are reversed so that s13 (2) of the Original Bill is now
s13(3) in the New Consolidated Text, and s13 (3) of the Original Bill is
now s 13 (2) in the New Consolidated Text.

1.31 Punctuation is slightly amended in s13 (3) of the New Consolidated
Text, by the insertion of a comma between the words "providers" and
"or", that is to say - "…categories of service providers, or protected
…" The comma does not appear in the Original Bill.

1.32 s13 (4) of the Original Bill refers to " … personnel and
administration services which are required …", but the same section under
the New Consolidated Text drops the "services" so that it reads: " …
personnel and administration which are required …"

1.33 The Appeals sections of the two documents also differ. On the one
hand s18 (1) of the Original Bill provides that "any person who is
aggrieved by a warrant, directive or order issued …". On the other hand,
the same section in the s18 (1) provides that "any person who is
aggrieved by a warrant, a directive referred to in section 6 (2) (a) or a
directive or order issued …". The addition to the New Consolidated Text
is therefore the phrase: " a directive referred to in section 6 (2)
(a)"

1.34 Under the New Consolidated Text, in section 18 (1) thereof,
appeals will be heard by the Administrative Court, not the Minister as was
provided for under the Original Bill.

1.35 The New Consolidated Text, in s18 (1) thereof, the grace period
within which an appeal may be lodged by an aggrieved party is extended
from the fourteen days/ two weeks that were provided in the Original
Bill, upwards to one month, that is four weeks.

1.36 Under the Original Bill, in s18 (1) thereof, the Minister had
authority to "vary or set aside the warrant, directive or order appealed
against. He/ she has been stripped of such powers under the New
Consolidated Text.

1.37 The New Consolidated Text contains a whole new section - s18 (3),
which does not appear in the Original Bill. The new section provides
that: "For the avoidance of doubt, the Administrative Court is an
"adjudicating authority" for the purposes of the Courts and Adjudicating
Authorities (Publicity Restriction) Act [Chapter 7:04] when considering an
Appeal in terms of this section." Section 19 of the New Consolidated
Text - "Review of Minister's powers under this Act" - is fresh to the
New Consolidated Text. It is not part of the Original Bill. The new
section provides that not later than three months after the end of each
calendar year, the Minister shall submit for review by the AG, a written
summary of the warrants that were issued during the subject year, which
were not renewed.

1.38 The inevitable result of the addition of a new section 19 to the
New Consolidated Text is that what appeared as s19 in the Original Bill,
that is "Regulations", is now section 20 under the New Consolidated
Text. The content of the section however remains wholly unchanged.

2.A Critical and Qualitative Analysis of the New Consolidated Text

Under this part of the analysis, the proposed law, as appearing
under the Original Bill, and as amended by the New Consolidated Text,
shall be referred to simply as "the proposed law", or "the Bill".

2.1It is quite clear from the technical and quantitative
analysis given herein above that the New Consolidated Text is not
substantially different from the Original Bill.

2.2The most notable observation is that the New Consolidated
Text (the Bill) still carries unconstitutional provisions in that it
threatens citizens' fundamental rights to privacy freedom of conscience,
expression and association.

2.3The Bill still attempts to overturn the outcome of the Law
Society of Zimbabwe Vs the Minister of Transport and Communications, and
the Attorney General case of the year 2003, which ruled that freedom of
expression includes freedom from interference with correspondence
(electronic or postal).

2.4 That case also made it clear that laws with vague
provisions, and which bestow extremely broad and unfettered powers to an
individual without checks and balances are not reasonable. That is the case
with the proposed law.

2.5 The Bill carries vague and broad provisions. It contains
terms like "any directive" [s6 (2) (a) ], and "any other information"
[s10 (1) (c)]. It 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. All that
constitutes a bad law.

2.6 This Bill also introduces unprecedented grounds for law
making. The minister is empowered to legislate for convenience or
expedience (see s12 (3) (d) of the Bill), to the benefit of the government, and
potentially to the detriment of citizens. Authorised persons are also
given wide discretionary or opinionated powers (e.g s11 (7) (b), they
may destroy records "if in the opinion of the authorised person …" it
is appropriate to do so.)

2.7 It is not clear why the Attorney General has been granted
review powers, and the right to be consulted on certain issues under the
Bill.

2.8 Although attempts are made at defining the terms: "national
security", and "organised criminal group", the issues surrounding these
terms remain largely debatable and vague.

2.9The 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.

2.10 Authorised persons are also empowered to nominate persons of
their choice to apply for warrants. That is also a dangerous provision
as the discretionary powers bestowed upon the Minister are too wide.

2.11 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 chances to present their
respective accounts on the subject issue.

2.12 The circumstances under which requests may be granted under ex
parte applications, in the Bill, are not justifiable. The issues that
are subjected to ex parte proceedings are not as serious or as urgent
enough as is required under common law.

2.13 The duration of warrants (3 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.

2.14 And the Bill does not provide any limit as to the number of
times for which warrants may be renewed. Any law should afford the
citizen a substantial degree of certainty.

2.15 The Bill also carries heavy custodial sentences. For
instance, s3 (3) of the Bill provides for a maximum sentence of five years
imprisonment on persons who intercept or attempt to intercept communication
without a warrant. S11 (8) imposes the same period of imprisonment
upon persons who fail to disclose a required key. These situations could
be resolved through civil proceedings.

2.16 The Bill is an illustration of the government's determination
to criminalise, more and more, matters that should ordinarily be dealt
with in civil courts, or through alternative dispute resolution.

2.17 The autonomy of the proposed Monitoring of Interception of
Communications Centre is threatened by the provision that technical
experts at the Centre shall be designated by "the government
telecommunications agency …"

2.18 The proposed law is grossly unfair as it seeks to impose
financial obligations upon corporate citizens, in a fashion that is not
justifiable in a democratic society.

2.19 Under the proposed law, private, confidential and personal
information may be intercepted and abused by the system. Lawyer-client
confidentiality, banker-customer confidentiality, husband-wife
confidentiality, and all other forms of confidentiality, shall be breached should
the proposed law be enacted into actual law.

2.20 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

2.21 Service providers in the communications industry shall be
forced to incur huge capital and foreign currency expenses for the
acquisition of hardware and software that will become necessary for compliance
with the proposed law. Some players in the industry could be driven
out of business. The technical description of the hardware and software
facilities outlined in section 9 of the Bill makes it clear that it
will be a costly exercise.

2.22To worsen the plight of the targeted businesses, the Bill also
excludes compensation for indirect costs. (see s13 (4))

2.23The provisions for compensation in the Bill are insufficient
to protect the financial interests of players in the industry. S13 (1)
(b) of the Bill provides that the Minister … shall prescribe
"reasonable tariffs of compensation payable …". This means the Minister could
still decide that the sum claimed by a service provider as
compensation, is unreasonable, notwithstanding the actual sums that the service
provider would have spent on the required machinery and software.

2.24 The Bill is also flawed in its failure to provide for
compensation or damages in cases of the issuance of wrongful or malicious
warrants. The protection granted to authorised persons is unjustifiable.

2.25 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.

2.26 The Bill attempts to present the government as a friendly
authority. There is reference in section 9 of the Bill to "assistance by
service providers". But the state is certainly not seeking assistance.
It is crafting a decree. In s9 (2) of the Bill, it is declared that
"a service provider who fails to give assistance … shall be guilty of
an offence and liable to a fine …" Assistance by its very nature,
ought to be charitable. Once the slightest degree of force or penalties
arises, the term assistance becomes inappropriate.

2.27 The word "recommendation" is also used inappropriately in s19
(3) of the Bill because the Minister is compelled to comply. To say "
… the Minister shall comply …" makes the provision peremptory, and
it renders the word recommendation redundant. "Directive" would be a
better word.

2.28 The authors of the proposed law are not as friendly and
compassionate as might be suggested by the use of soft words in the Bill.

2.29 The Bill still caries sections with problematic word
arrangement, and bad English. Any law must be well presented to citizens.

2.30 The Bill does not make it clear what the effect of an appeal
will be upon a warrant.

2.31It is also not clear why the AG's review function should be
exercised only at the end of each year, when in fact citizens are
affected by the law throughout the year. It is also not clear why the review
process should apply only to the warrants that were not renewed.

Positive developments in bill

2.32.1 The reduction of Ministerial powers through transfer of certain
functions to the Administrative Courts, and the provision of review
functions by the AG or the Administrative Court

2.32.2 The inclusion of some rudimentary (though inadequate) system of
checks and balances through the involvement of the Attorney General.
(the AG might not the best office to provide that function)

2.32.3 The Bill extends the grace period within which appeals may be
lodged from two weeks (in the Original Bill) to four weeks (in the New
Consolidated Text). As stated earlier, the shortcoming under this
process is that it is not clear what the effect of the appeal would be on the
warrant. And, further, the victim might not become aware that a
warrant has been issued against him, which lack of knowledge would deprive
him/ her from his/ her right to appeal.

2.32.4 Appellate authority has been transferred from the Minister to
the Administrative Court.

2.32.5 Discretion under the Appeals section of the Bill has been
transferred from the Minister to the Administrative Court, and such
discretion has been limited to the issue of costs.

It goes without saying that the negative aspects of the proposed law outweigh the positive ones.

The Interception of Communications Bill, 2006, even in its revised
form, is a retrogressive and repressive piece of law that has no place in a
democratic society. No amount of revision would justify the impending
snooping. The Bill fails to disclose the solid objective behind the
proposal for interception of communications.

Analysis done by Chris Mhike (Legal Practitioner) on Behalf of
MISA-Zimbabwe
For any questions, enquiries, queries please contact:

Media Institute of Southern Africa-Zimbabwe
84 McChlery Avenue
Eastlea
Box HR 8113
Harare Zimbabwe
Tel +263 4 776165 or +263 11 602 448 or +263 11 621 015
E-mail misa@mweb.co.zw, wilbert@misazim.co.zw