Right to privacy under threat in Zimbabwe

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The right to privacy in Zimbabwe is increasingly under threat following remarks by President Emmerson Mnangagwa that the government had managed to track the locations of certain individuals and their communication details.

President Mnangagwa was addressing Zanu-PF Zimbabwe African National Union Patriotic Front women, youths and war veterans, provincial chairpersons, at the party’s headquarters in Harare on 12 October 2020.

He said the government has been facing attacks from individuals within the country, foreign embassies in Zimbabwe and foreign-funded non-governmental organisations, which are not operating within their mandate particularly in view of the 31st of July 2020 Movement. This comes on the backdrop of earlier sentiments by Army Commander Lieutenant-General Edzai Chimonyo, that the army would start snooping into private communications between citizens to ‘guard against subversion’ as the use of social media poses a threat to national security. The right to privacy is provided for under Section 57 of the Constitution. The Constitution provides that every person has the right to privacy, which includes the right not to have:

• their home, premises or property entered without their permission,

• their person, home, premises or property searched

• their possessions seized

• the privacy of their communication infringed; or

• their health condition disclosed.

The right to privacy is very critical because it is an enabling right that allows for the exercise of media freedom and freedom of expression. It is in that context that the confidentiality of media sources is key and equally protected by the Constitution. Similarly, the protection of whistleblowers is also very important for the purposes of fostering transparency and accountability. Unjustified infringements to the right to privacy result in self-censorship as citizens will be afraid to communicate freely, fearing that their communications will be availed to other third parties. It should also be noted that Section 86 of the Constitution states that fundamental rights and freedoms may be limited only in terms of a law of general application, and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity and freedom.

MISA Zimbabwe position

The above principle clearly lays out the mechanisms that should be put in place to guide any form of surveillance that can be conducted. departure from the letter and spirit of the Constitution which calls on the State and all institutions and administrative authorities to respect, protect and promote the Declaration of Rights as set out in the Constitution. International standards and best practices stress that any limitation to fundamental rights should pass the three-pronged test on legality, necessity and proportionality. Principle 41 of the recently launched Declaration on Principles of Freedom of Expression and Access to Information in Africa of the African Commission on Human and Peoples’ Rights, provides as follows:

• States shall not engage in or condone acts of indiscriminate and untargeted collection, storage, analysis or sharing of a person’s communications.

• States shall only engage in targeted communication surveillance that is authorised by law, that conforms to international human rights law and standards, and that is premised on specific and reasonable suspicion that a serious crime has been or is being carried out or for any other legitimate aim.

• States shall ensure that any law authorising targeted communication surveillance provides adequate safeguards for the right to privacy, including:

• the prior authorisation of an independent and impartial judicial authority;

• due process safeguards;

• specific limitation on the time, manner, place and scope of the surveillance;

• notification of the decision authorising surveillance within a reasonable time of the conclusion of such surveillance;

• proactive transparency on the nature and scope of its use; and

• effective monitoring and regular review by an independent oversight mechanism.

The above principle clearly lays out the mechanisms that should be put in place to guide any form of surveillance that can be conducted. Zimbabwe should also be guided accordingly to ensure the right to privacy is fully respected.

MISA Zimbabwe, therefore, reiterates its earlier position that the Interception of Communications Act 2007 which regulates the interception of communications, including telephonic communications, postal telecommunications as well as Internet-based communications in Zimbabwe, should be aligned to the Constitution. It legitimises surveillance and yet does not have any oversight mechanisms that prevent over surveillance and extra-judicial surveillance. If the State engages in any form of surveillance, such surveillance should be lawful and based on a warrant authorised by a court of law through the judicial officers and for a specific and legitimate purpose.

Indiscriminate and also targeted surveillance are both therefore disproportionate and uncalled for and amount to a grave violation of the right to privacy. The trend of surveillance in Zimbabwe, and in view of such sentiments by government officials, is worrisome particularly in light of the fact that the country currently does not have a data protection framework. This comes at a time when concerns around surveillance have also been noted in terms of the Cybersecurity and Data Protection Bill. The Bill proposes to impose three roles under the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ), being that it remains as the telecommunications regulator and also becomes the Cybersecurity Centre and Data Protection Authority.

This is despite the fact that the independence of POTRAZ is questionable due to the overarching role of the Executive, both in the appointment of its Board of Directors and also in its operations. Although POTRAZ does not collect the private data of citizens, it should be noted that it has access to such data through its role as the regulator of the telecommunications industry. This raises genuine and plausible concerns on the protection and privacy of the data that is in the hands of mobile network operators. MISA Zimbabwe, therefore, calls on the government, through its various institutions and stakeholders, to respect the Constitution as the supreme law of the land and ensure that any limitations to Constitutional rights are lawful and proportionate.