New Spying Law 'Unconstitutional'

THE Interception of Communications Act, signed into law by President Robert Mugabe last week, is unconstitutional and can be successfully challenged in the courts, legal experts said yesterday.
The government will find it difficult to adequately monitor communications, particularly e-mails and other internet communications, they said.
The law authorises the government to set up an interception centre to eavesdrop on telephone conversations, open mail, and intercept e-mails and faxes.
But legal experts told The Standard yesterday the law was an unwarranted infringement on people's rights.
David Coltart, secretary for legal affairs in the pro-Senate faction of the Movement for Democratic Change (MDC), said the law was unconstitutional and will have serious repercussions on people's rights and freedom of expression.
"There is no independent review of any interception of a person's communication," said Coltart. "It (the law) is an unjustifiable invasion of a person's rights."
He said the government would have a tough time implementing the law.
"There are practical difficulties in implementing the law," he said, "especially in the current environment when there is no foreign currency in the country. The equipment to monitor communications has to be imported, and I doubt if the service providers have the capacity to do so. They will find it difficult to adequately monitor communications, particularly e-mails. "
The president of the Law Society of Zimbabwe, Beatrice Mtetwa, said the law could be challenged in the Supreme Court.
She said: "They had been intercepting before the debate, and what this law simply does is to legalise what they have already been doing".
The spokesperson of the Morgan Tsvangirai anti-Senate faction of the MDC, Nelson Chamisa, condemned Zanu PF for using Parliament to deprive people of their liberties.
"Instead of expanding people's freedoms, we are restricting them," said Chamisa. "This is an anti-technology, anti-people and anti-modernisation law. This is a state of paranoia and panic by this regime. Nobody is safe -- the church, the media, workers' union, opposition parties and civil society. The law will be used to crucify whoever is perceived to be of a different political view to those in power."
Chamisa sits in the parliamentary portfolio committee on transport and communications. He said yesterday that during public hearings on the law only soldiers overwhelmingly supported it.
"We need to put to finality this madness of using Parliament to rubberstamp this crescendo against the people. This is clearly a war against the people. What is left now is for them to legalise the setting up of gadgets in people's bedrooms," said Chamisa.
Chairperson of the Media Institute of Southern Africa (MISA) Zimbabwe Chapter, Loughty Dube said Zimbabwe did not need such laws which stifled freedom of expression. He said prying into people's conversations was "simply an indication of a government that is afraid of its own citizens".
Under the law, Internet service providers (ISPs) have to install equipment to facilitate interception "at all times or when so required" and ensure that the equipment allows full-time monitoring of communications.
An official with an ISP in Harare, requesting anonymity, said they did not have the capacity to implement the requirements, and -- like shop owners in the ongoing price blitz -- could be forced out of business.
"This law is too expensive for Zimbabwe. All the equipment has to be imported, and we do not have foreign currency for that. Most ISPs would be forced to close shop," he said.
Last year, the Zimbabwe Internet Service Providers Association (ZISPA) told the parliamentary portfolio committee on transport and communications that the law (then a Bill) "is very vague in its provisions and extremely broad in scope".
ZISPA also warned that "private and confidential personal information could be intercepted and misused by officials who obtain access to it".
"This could include communications between lawyers and clients, doctors and patients, priests and their flock, journalists and their sources", wrote ZISPA.
Yesterday ZISPA chairperson Jim Holland was said to be out of the country.
The government says the law is necessary to protect the country from international terrorism and espionage, and is not unique to Zimbabwe.

Zimbabwe Standard (Harare)
5 August 2007
Posted to the web 6 August 2007
By Vusumuzi Sifile

Zim ICT Bill threatens free speech

Zimbabwean Internet service providers (ISPs) are struggling to install costly equipment to monitor the flow of information in the southern African country, according to online activist Web site Kubatana.

President Robert Mugabe formally signed the Interception of Communications Act earlier this month. It enables the government to intercept phone calls, e-mails and faxes with the intention of protecting national security.

The law stipulates ISPs are under mandatory obligation to pay for and install the monitoring equipment.
“The law now stipulates that licensed Internet access providers and their ISPs must install the lawful interception equipment at their own cost,” says Shadreck Nkala, chairperson of the Zimbabwe Internet Service Provider Association (ZISPA).

The Act further states an ISP that fails to provide assistance in terms of this section shall be guilty of an offence and liable to a fine or imprisonment for a period not exceeding three years.

Nkala says there is a need for discussion between communication providers and the government as to the financial logistics of installing such equipment.

“There will be a problem in obtaining foreign currency to pay for the equipment. The cost of implementing the equipment can vary from several thousands of US dollars to a million or more, depending on the sophistication of the installation chosen,” he adds.

Zimbabwe's inflation is at around 4 500%, which causes business operations difficulties as it is, he says. “This law will put pressure on ISPs and other communication operators, amid torrid economic times in Zimbabwe.”

ZISPA has engaged in talks with the communications regulator Potraz and the ministry of transport and communication on finding a realistic solution.

Information control

The monitoring equipment intercepts information from the targeted user, without him or her noticing it is being filtered. The information is then recorded, explains Nkala.

Leonard Vincent, Africa correspondent for Reporters Sans Frontieres (RSF), says the law will make the “free flow” of information in Zimbabwe next to impossible.

According to an RSF statement, the promulgation of this law is further evidence of Mugabe's desire to keep news and information under close control.

The Zimbabwe government denies the charge, insisting the new law is in line with international trends to fight terrorism and ensure national security.

The government has continued to justify its decision by citing Canada, SA, UK and the US as countries with similar legislation to protect citizens against the imposing threat of terrorism, says Mathew Takaona, president of the Zimbabwe Union of Journalists.