THE government has with effect from today permitted its security agencies to spy on people’s telephone call records, text messages and Internet communication.
This has been done through the enactment of Statutory Instrument 142 of 2013 on Postal and Telecommunications (Subscriber Registration) Regulations, 2013, which was gazzetted last Friday.
Previously, government could only have access to people’s phone records when it was absolutely necessary, usually when following up criminal or other serious offences.
In such cases, permission had to be sought through the courts, which would grant orders for such interception after guaranteeing there were justifiable reasons to do so.
Legal experts yesterday said the newly-gazzetted laws were illegal according to the Constitution of Zimbabwe.
The experts said the new law was not in harmony with Section 57 of the Constitution, as it was infringing on people’s several rights, including the right to privacy of communication.
According to the Statutory Instrument, telecommunication companies are now required to set up a central subscriber data base for all users from which information about subscribers would be released to law enforcement agencies on demand.
Such information could also be released for educational and research purposes.
The law also compels companies to disclose subscriber data upon receiving a “written request signed by a law enforcement agency who is not below the rank of assistant commissioner of police or a co-ordinate rank in any other law enforcement agency.”
“The written notice to be issued by the law enforcement agency pursuant to subsection (2) shall indicate the rank of the official of the law enforcement agent and the purpose for which subscriber information is required,” section 9 (3) of the statutory instrument wrote.
Telecommunications companies will no longer be allowed to activate any SIM-card that is not fully registered, the law says.
Providing false information upon registering a SIM card, such as one’s residential address is now an offence.
According to the new law, the creation of the database shall “assist with the provision of mobile-based emergency warning system” and “authorise research in the sector.”
With only the signature of an assistant commissioner or higher rank now required, legal experts said the system could be grossly abused.
There are no mechanisms within the law to protect the ordinary person against abuse by those authorised to snoop.
Experts said the word “purpose” was too wide, general and without justification to an adjudication board that could assess the validity of the reasons.
They said a more strict way like the use of the judiciary, as was the case in the past, was the only way subscribers could be protected.
According to the Interceptions of Communication Act, Chapter 11:20, it used to be cumbersome to get a warrant to access subscriber call records, while interception would need the approval of the minister administering the Postal and Telecommunications Act, the Police Commissioner general, and the director-general of intelligence.
A magistrate would decide on whether the police could be given a warrant to access call records.
“The gazette is not constitutional. It is not justiciable. For example, how do you use subscriber information for research?
“Will this be by the consent of the subscribers? We will end up having a lot of cases where law enforcement agents will be paid to track unfaithful spouses,” another lawyer said.
Human rights lawyer Chris Mhike said the government should strike a balance between subscriber needs and its need to combat crime and terrorism.
He said the greatest weakness was the new law’s failure to allow information to be subjected to judicial scrutiny, which is the most competent forum of determining compliance to any law.
Another human rights lawyer Alec Muchadehama said he would have preferred a situation where the courts had the discretion on whether access to call records could be allowed.