PRO-DEMOCRACY activist Alice Kuvheya has taken Information minister Monica Mutsvangwa and the Postal and Telecommunications Regulatory Authority of Zimbabwe (Potraz) to court for enacting Statutory Instrument (SI) 95 of 2021, permitting the monitoring, recording and storing of communications data between persons, where at least one communicator is using a Zimbabwean number.
The regulations were published and gazetted by the respondents on 9 April this year.
Kuvheya is seeking a review of the regulations which she feels are ultra vires the law, irrational and illegal as they violate the Administrative Justice Act and the right to privacy as embraced by the Constitution of Zimbabwe.
The urgent chamber application is before the High Court.
Kuvheya said Mutsvangwa and Potraz purport to have made the regulations using power bestowed upon them in terms of section 99 of the Postal and Telecommunications Act (chapter 12:05).
The objective of the regulations as set out in section three is to provide for conditions, requirements and procedures for monitoring telecommunications traffic in Zimbabwe in order to ensure accurate revenue collection.
Revenue is defined as taxes, duties, fees, levies, charges, penalties, fines or any other monies levied, imposed, collected or received in terms of any of the Acts outlined in the first schedule of the Revenue Authority Act.
But Kuvheya argued that the Zimbabwe Revenue Authority (Zimra), which operates under the ministry of Finance and Economic Development, is responsible for matters of revenue collection thus the ministry headed by the respondent has no duty at law to facilitate revenue collection.
“Clearly the respondent has acted beyond the powers given by the Act,” Kuvheya said.
It is her submission that the Act as required by the law, specifies the limits of the power, the nature and the scope of the statutory instrument that may be made and the principles and standards applicable to the SI.
She said it is not legal, therefore, that the respondents exercised powers which they were not given by the Act.
“In the course of my human rights work, I advocate for promotion and protection of economic, social and cultural rights. This brings me in close interaction with members of the media as I am interested in pursuing protection of human rights including shelter, water, education,freedom of association and assembly,” she said.
“I aver that the regulations infringe on the right to privacy which extends to the freedom of expression and freedom of the media. In the course of my advocacy work, I provide information on a confidentiality basis to members of the media to protect my identity and my privacy and this privacy is under threat given the provisions of the regulations.”
She added: “The regulations are providing an opportunity for mass surveillance, thereby jeopardising the anonymity of sources. As a result, there is a real threat to the protection of journalistic sources and the chance that they may face retribution from powerful members of society if their identities are disclosed. The regulations are doing more harm than good to the democratic society of Zimbabwe. It is clear that they are irrational and unjustifiable.”
In her founding affidavit, Kuvheya says confidential source protection ensures that journalists and media houses in the country are able to perform their role as a public watchdog uncovering wrongdoing, maladministration and corruption.
“Mass surveillance and lack of protection of the police means they would lose their credibility as independent, impartial observers. The apparent drawbacks of the Regulations therefore are that they do not provide any safeguards to prevent the abuse of the surveillance ensuring the protection of constitutional rights and freedoms of Zimbabwean citizens. There are no parameters set to protect citizens from abuse by the state,” she said.
The activist said the regulations threaten the privacy of such communications and others as it allows for installation of a system to collect call detail records and for such details to be stored for three years.
Kuvheya said regulations do not only infringe upon the rights of media practitioners and their contacts but also extend to any communication, personal relationships and contacts which the public wish to keep private.
“The collection and storing of data over such contacts and communications is an untenable invasion into the right to privacy. To add salt to the wound, the regulations mandate every licensee to provide Potraz with any information relating to the entity or carrier managing international incoming traffic and or the national traffic including but not limited to the identity of the entity or carrier (entity name) and or the base transceiver station used for a specific call. The regulations prescribe the unlawful tracking of physical location of users.”
She said the monitoring of telecommunications through extraction of information such as caller identification and call duration constitutes direct infringement of privacy. Such conduct may well be categorised as the state spying on its citizens.
The matter is yet to be set down for hearing.-Staff Writer