Why government’s internet blackouts are illegal

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By Tyler Walton

Murmurs of an imminent internet shutdown began leaking out of Zimbabwe on the evening of Tuesday 15 January. Marches and protests had broken out in Bulawayo and across the country following the hike in the petrol price that President Emmerson Mnangagwa announced the prior weekend.

Overnight and into the morning, Zimbabweans and media rights organisations began spreading information about Virtual Private Networks (VPNs) that could be used to circumvent the potential government blockage of the internet.

Beginning around 9 am local time on Wednesday 16 January, internet users began being unable to access the internet, including social media apps like Facebook, Twitter, and WhatsApp. At first, Zimbabweans were able to use VPNs to get around the blockage, but by noon Wednesday, the majority of the country was experiencing a complete internet blackout.

Initial responses by the government denied any involvement in the internet outage. Information Deputy Minister Energy Mutodi said in a live newscast that the outage was due to congestion. However, just a few hours later, Strive Masiyiwa, the founder of Econet Wireless Zimbabwe, the largest wireless provider in Zimbabwe, confirmed that Econet had been ordered to shut down access to the internet pursuant to a warrant issued by the Minister of State in the Office of the President and Cabinet. Subsequent reports revealed that in addition to Econet, TelOne, NetOne, and ZOL had all been ordered to suspend internet access.

The warrant was issued pursuant to the Interception of Communications Act, a 2007 law which provides the government with the right to lawfully intercept or monitor postal and telecommunications to fight crime and protect national security. The definition of interception in the act states that it “means to listen to, record, or copy” a communication; nowhere in the act is blocking or disrupting communication services even mentioned. This order by the government, to completely shut down internet access across the whole country, is not authorised anywhere in the Act. The warrant issued by the Zimbabwean government amounts to an unlawful order.

Furthermore, the order to cut off access to the internet across Zimbabwe violates rights protected in the Constitution and under international human rights law. People in Zimbabwe have their rights to freedom of expression, freedom of the media, and freedom to access information protected in the Constitution. The ability to access the internet is essential for the operation of these rights in any modern society. The constitution says that any limitation to these fundamental rights must be set out in law, and “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”. Misconstruing a pre-constitutional law to greatly hamper the fundamental rights of people across Zimbabwe cannot be justified.

Unfortunately, the internet disruption has proved to have further impacts than just freedom of expression. The education sector, health care, justice department and banking systems have all been negatively affected. In a country where e-payments have proliferated over the past several years, business has ground to a halt.

Following the initial shutdown, Zimbabwe Lawyers for Human Rights and the Media Institute of Southern Africa initiated an urgent challenge to the government’s order to shut down the internet. They are challenging the illegal use of the Interception of Communications Act which violated the rights of people across Zimbabwe. There was a question of whether or not the court would receive the application, being that internet services began to be partially restored around 5 pm on the evening of 16 January. However, many social media platforms were still blocked, and then on Thursday night, Econet again announced via SMS that the government had ordered another internet shutdown. At the time of writing of this article, the internet blackout is ongoing across Zimbabwe.

People in Zimbabwe have a right to express their opinions and to have an environment which promotes the free flow of ideas and information. These rights become even more important when a country faces the types of challenges that Zimbabwe is currently working through.

In order to address the social and economic problems, the government should be all the more eager to listen to its citizens, and have a participatory national dialogue to find a way forward. A fearful response which puts the whole country on mute is unhelpful, illegal, should be stopped immediately and never repeated again.

Tyler Walton is a Freedom of Expression Fellow, Southern Africa Litigation Centre. This article was originally published by the Daily Maverick.