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Supreme Court bars Mugabe e-mail snooping
16/03/04
THE Supreme Court, sitting as a full bench, declared last week as unconstitutional
legal provisions that gives the president powers to eavesdrop, including
the powers to intercept mail, telephone conversations and other such
electronic telecommunications devices.
The superior court upheld contentions by the Law Society of Zimbabwe
(LCZ), a grouping of lawyers who had filed the constitutional application
arguing that the presidential powers provided for by the Posts and Telecommunication
(PTC) Act violated section 20 of the Constitution.
The lawyers were challenging section 98 and 103 of the PTC Act, which
gives president powers to intercept mail, telephones, e-mail and any
other form of communication.
The Act also gave powers to the president to give any directions to
a licensee requiring him or her to do or not to do a particular specified
action.
Section 20 of the Constitution provides for freedom of expression, freedom
to receive and impart ideas and freedom from interference from one’s
correspondences.
LSZ’s lawyer, Advocate Adrian de Bourbon had argued that the PTC
Act allowed the president to act in his opinion in the interest of “national
security” and “in the maintenance of law and order”
and need only to consult his Minister, whose views he is not obliged
to take into account.
“In effect, the legislation gives to the President an unfettered
ability to intercept mail and communications with absolutely no safeguard
whatsoever to protect the innocent,” said De Bourbon. “The
absence of any restrictions and in particular the absence of any judicial
determination points beyond doubt to the over-breathe of the power given
to the president. There is no arbiter as to whether a matter is subject
to national security other than the subjective view of the president.”
It was also submitted that the norm was so imprecise that no person
could regulate his conduct to avoid running the risk that the president
would subjectively form the opinion that mail or other communication
from that person should be intercepted in the interest of national security.
The lawyers submitted that the provisions under challenge interfered
with the lawyer-client privilege, which would put at risk the privilege
of such communication.
They said they feared that legal practitioners could prejudice their
clients and betray confidence if they used the postal system and yet
the legal practitioner-client privilege was fundamental in the proper
administration of justice.
In response, Yvonne Dondo of the Attorney General’s Office submitted
that while it was conceded that the provisions interfered with one’s
enjoyment of the freedom of expression, it was a permissible derogation.
She submitted that the Constitution authorised derogation of freedom
of expression in the interest of defence, public safety, public health,
economic interest, public morality and public health.
She said the test for constitutionality of permissible derogation in
terms of section 20 of the Constitution was whether they were reasonably
justifiable in a democratic society.
Dondo had drawn the court to observations once made by the court with
regard to what was reasonably justifiable in a democratic society, where
the court had this to say:
“What is reasonably justifiable is an elusive concept. It is one
that defies precise definition by the courts. There is no legal yardstick
save for the quality of reasonableness of the provision under attack
is to be adjudged on whether it arbitrarily or excessively invades the
enjoyment of the guaranteed rights according to the standards of a society
that has proper respect for rights and freedoms of the individual.”
Dondo submitted that the present case passed the test set out above.
“The legislative objective to allow the president to intercept
mail or give directions to licensee in terms of the Act is to ensure
that national security is preserved,” she said.
“Maintenance or preservation of national security is sufficiently
important to justify limiting a fundamental right.”
The case was heard before Chief Justice, Godfrey Chidyausiku, Vernanda
Ziyambi, Misheck Cheda, Luke Malaba and Elizabeth Gwaunza - Daily Mirror
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