Constitution Watch 2/2019
Internet Shutdown
19 January 2019
“Freedom of expression and information including the right to seek, receive and
impart information and ideas, either orally, in writing or … through any other form
of communication … is a fundamental and inalienable human right and an
indispensable component of democracy.”
The African Charter on Broadcasting, agreed at Windhoek in 2001, says in Article 1
of Part IV:
“The right to communicate includes access to telephones, email, Internet and
other telecommunications systems, including through the promotion of
community controlled information communication technology centres.”
In 2018 the United Nations Human Rights Council passed a resolution:
• affirming that the same rights people have offline must also be protected online,
in particular freedom of expression, and
• condemning unequivocally measures in violation of international human rights
law that prevent or disrupt an individual’s ability to seek, receive or impart
information online, and calling upon all States to refrain from and cease such
measures.
In other words, the Council condemned intentional disruption of Internet access by
governments.
The Interception of Communications Act
Against this background the Government would have to show very clear statutory
authority before it could credibly claim that the shut-down of the Internet was lawful.
The Government relied on the Interception of Communications Act, but it does not
provide that authority.
The long title of the Act explains its objectives in the following words:
“An Act to provide for the lawful interception and monitoring of certain
communications in the course of their transmission through a
telecommunication, postal or any other related service or system in Zimbabwe;
to provide for the establishment of a monitoring centre; and to provide for any
other matters connected with or incidental to the foregoing.’’
The objectives of the Act are therefore twofold:
1. To permit the interception and monitoring of communications
2. To establish a monitoring centre.
Shutting down whole communication systems is not stated to be an objective of the
Act and cannot be regarded as connected with or incidental to the Act’s two stated
objectives. After all, how can one intercept or monitor communications if one has
shut down the whole communication system?
What the Act does is to allow a Minister – and we shall deal later with who that
Minister is – to issue warrants authorising the interception of communications and,
instead of warrants, to issue directives. The scope of these warrants and directives
are as follows:
Interception Warrants
The Econet statement [see above] refered to a “warrant”. Section 5 of the Act
allows officials responsible for state security and crime investigation to apply for