Zimbabwe has passed a new electronic surveillance law that requires telcos help law enforcement agencies stay technologically savvy to the chagrin of some who say it will inhibit the free exchange of news and opinions, particularly on matters of a political nature.

Information wars are alive and well in Zimbabwe. A Government Gazette published on Friday 17 August says President Mugabe has given his assent to the Interception of Communications Act (Chapter 11:20) (No. 6 of 2007) that gives the government unprecedented powers to pry into citizen’s internet, telephone, and postal communication.

The government has defended the new law saying it was necessary to sift through information in order to protect the country from international terrorism and espionage. However, analysts say the passing of the new law will give government unjustified latitude to eavesdrop on tens of millions of phone calls and e-mail messages.

Zimbabwe’s lower house of parliament had in June voted for passing of the controversial law. The bill received its second reading in the House of Assembly after intense debate between Zanu-PF and Movement for Democratic Change (MDC) legislators and sailed through the ruling-party dominated Senate with little opposition. It was awaiting presidential assent.

First proposed a year ago, in July 2006, this law is keenly supported in state corridors but has been received with concern in non-government quarters. As the economic situation in Zimbabwe worsens and inflation races beyond the 5000% mark, with a general election less than twelve months away, most critics argue that the law caps a set of measures meant to suppress legitimate dissent by the embattled government of President Robert Mugabe.

ICA’s key provisions

The law provides for legally sanctioned eavesdropping on all communications systems. On paper it gives a government minister powers to issue an interception warrant to security chiefs and tax authorities when there are reasonable grounds to believe that a serious offence has been or is being committed or that there are activities, “detrimental to the national interest, economic and public security”.

Surveillance will be done through a Monitoring of Interception of Communications Centre that will monitor and intercept communications in the course of transmission through either a telecommunication, postal or any other related service system.

After pressure from concerned parties, provision is now made for review by the Attorney General of the minister’s exercise of the power to issue the warrants. Any person aggrieved by the issuance of a warrant may appeal to the Administrative Court, which may vary or set aside the warrant. Evidence obtained by unlawful interception may not be admissible in criminal proceedings.

Crucially, the law requires communication service providers such as telcos, cellcos, internet service providers (ISPs), and good old snail-mail couriers to reconfigure their networks by deploying software and hardware that will ensure they become technically capable of supporting interceptions at all times.

It is significant that operators are to bear the cost of installing this plethora of extra functions. The law also enjoins network operators to allow ready access to subscriber data by the powers that be. The deadline for compliance is yet to be announced.

The opposing viewpoints

In the second reading in parliament in June, where underlying principles were debated, Transport and Communications Minister Christopher Mushohwe defended the proposed law insisting it was crucial in view of the advances in information technology that posed both a challenge to law enforcement and a threat to national security.

Such a law was similar to money-laundering and anti-terror laws in the UK, US and South Africa, countries that are “regarded as the beacons of democracy,” he said.

Minister Mushohwe argued that currently there was no legal instrument providing for the lawful interception of communications a situation that was open to abuse hence the need for a legal framework. He said in drafting the Bill, consideration had been taken in balancing the national interest and individual rights, as enshrined in section 20 of Zimbabwe’s constitution.

He maintained that the bill was extensively discussed and, after taking all concerns on board, was fully endorsed by the parliamentary legal committee whose majority are lawyers from the opposition.

Since then the Minister has taken time to assuage rising public unease by reiterating that the law targets suspected law-breakers and does not propose random interception and monitoring of “every discussion, every communication” of the populace “as feared by government opponents”. The suggestion of a witch-hunting operation was, “an attempt to mislead the public for political gain by people with mischievous intentions up their sleeves” he said.

Despite these official assurances critics of the new law insist it is still unconstitutional, lacks strong provisions for judicial oversight of its application and fear it will fall within the purview of individual politicians who, given the deliberately arbitrary nature of law enforcement, will use the legislation to further their own interests more-or-less targeting individuals they feel like having a go at.

At debate stage David Coltart, an MP for the opposition Movement for Democratic Change (MDC), called the law “a fascist piece of legislation” aimed at cracking down on political dissent. Another MP for the MDC, Nelson Chamisa, said the law is, “about the interception of fundamental rights of our citizens” and that most of its provisions were injurious to civil society entities involved in earnest political engagement.

Hobbling communication as work-in-progress?

Passage of this law is the outcome of a sequence of events that is likely to bring to fruition government’s long held aspiration to control all manner of communication especially the crucial bottlenecks provided by telephone networks.

The bill moves a gear up to regulate person-to-person communication after a previous epoch under combative information minister, Jonathan Moyo, left the broadcasting and newspaper sectors badly emaciated by constant crack-downs against anti- government sentiment.

Zimbabwe’s battery of security and information laws, although prefaced by animadversions attacking terrorism and lawlessness, have had the effect of choking off the supply of information. The opposition regards these laws as generally prejudicial to the rights of citizens and as specifically laser-guided to immobilize their challenge to President Mugabe’s rule.

While the ICA started taking concrete form in 2006 an intention to regain control of telecommunication seems to have been work in progress ever since the government’s monopoly on communication started to crumble in the 1990s.

Despite more than a decade of liberalization there has been several unsuccessful attempts by the government to rescind the three mobile operator’s rights to operate international telecommunication gateways in support of one controlled by the incumbent fixed-network, the Posts and Telecommunication Corporation (PTC).

At one time the army’s director for communications, Colonel Livingstone Chineka, was quoted by The Herald newspaper as saying, “we want to listen, to make sure the nation is safe. If we liberalise the gateways then it means there would be a group of people who would communicate without our knowledge.”

As part of a long running vendetta with government the top mobile network, Econet Wireless, has in the past been accused of externalizing foreign currency earned from its international traffic to finance subversive activities that undermined the Zimbabwean government. At one time the police detained one of its managers after he refused to release MDC leaders’ subscriber information.

Internet policy and the political dimension

The government has voiced displeasure at what they see as negative information propagated by offshore radio stations and online news publications. This new internet policy, therefore, seems to be structured around the political dimension of confrontation between the ruling-party, Zanu-PF, and its internal and external opponents.

President Mugabe himself has been on record for his attacks on the internet. For example, in June 2001 he told a G-15 summit of developing nations in Indonesia that the information age should be regulated so that the Internet does not “poison societies”. “The toll-free and regulation-free information highways and the Internet threaten the very being and essence of our nations and communities,” Mugabe was quoted as having said.

Again, in a scathing address to the UN’s World Summit on the Information Society in Geneva in December 2003 Mugabe lambasted the United Kingdom and the United States for using information technologies to foment instability and cause destabilisation in Zimbabwe.

Will there be a Chinese connection?

One informed commentator says Chinese know-how is likely to be used to accomplish the task of web-filtering given Zimbabwe’s new look-East policy. This has seen the gradual mainstreaming of Chinese telecommunications technology sold by equipment vendors such as Huawei and ZTE.

According to research done by the Open Net Initiative on internet control and surveillance practices around the world China’s internet filtering regime is the most sophisticated effort of its kind comprising multiple levels of legal regulation and technical control.

Author: Eric M. Mazango