THE intensified prosecution of those expressing themselves on Twitter and other social media platforms indicates the government’s desire to protect itself from public pressure. Now, a new bill clamping down on cyber security and data protection is set to further curtail freedom.
Criminalising dissenting voices like politician Jacob Ngarivhume and journalist Hopewell Chin’ono would have been possible had the Cyber Security and Data Protection Bill already been enacted.
Since the proposed legislation is still a bill, awaiting enactment, the State charged them with inciting public violence instead.
Ngarivhume and Chin’ono’s alleged crimes were committed in Zimbabwean cyberspace on their Twitter accounts. Authorities say their social media accounts were used to call for a nationwide demonstration under the hashtag #31stJuly.
As part of their stringent bail conditions, Chin’ono and Ngarivhume were prohibited from posting anything on Twitter.
However, Section 164 of the Cyber Security and Data Protection Bill states:
“Any person who unlawfully by means of a computer or information system makes available, transmits, broadcasts or distributes a data message to any person, group of persons or to the public with intent to incite such persons to commit acts of violence against any person or persons or to cause damage to any property shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”
The bill is designed to establish a cybersecurity centre and a data protection authority within the Postal and Telecommunications Regulatory Authority, which will be mandated to:
– Provide data protection with due regard to the Declaration of Rights under the Constitution.
– Consolidate cyber-related offences and provide for admissibility of electronic evidence for such offences.
– Regulate the permissibility and non-permissibility of the transfer of personal information outside Zimbabwe.
– Oversee the definition of cybercrimes and their respective penalties, including the transmission of data messages inciting violence or damage to property.
Where does the bill come from?
President Emmerson Mnangagwa, who was brought to power in a military coup in November 2017, vowed to create a “new dispensation, a second republic”.
Mnangagwa also pledged to be a “listening president, respect human rights, uphold the Constitution and open the country for business”.
While the bill was first proposed under former president Robert Mugabe in 2015, it was only ratified in 2018, barely a year after Mnangagwa deposed his long-time mentor.
Speaking during a State of the Nation Address in Parliament in September 2018, Mnangagwa suggested that the bill would be tabled to mitigate the security risks and cybercrime-related threats.
Two months later, on 12 November, Zimbabwe’s Finance Minister, Mthuli Ncube, received US$3.6-million from the Japanese Ambassador to Zimbabwe, Toshiyuki Iwado, for the procurement of cybersecurity equipment – before Parliament had even debated the bill.
The ugly side of the bill
Authorities have tried to sneak in a repressive provision in the bill’s current gazetted form permitting the covert use of “keystroke loggers”, which facilitate remote data access, as well as monitoring and recording of computer activities. It is neither known under which circumstances the forensic tools would be used – nor how the State would authorise such surveillance.
The director of the Media Institute of Southern Africa Zimbabwe, Thabani Moyo, believes the bill should be “unbundled so that it’s not just an omnibus that logs together cybersecurity, data protection and electronic transactions in one”.
“Keystroke loggers are dangerous because it’s an infringement of the right to privacy. It’s an attack on the right to privacy as military intelligence will have access to the back end of mobile user data, which is provided through [the postal authority] under interception of the Communications Act,” Moyo told Daily Maverick.
There is no judicial oversight or other accountability measures for monitoring and reviewing potential abuses of such intrusive technologies and the bill has no specific safeguards to protect whistle-blowers who can be targeted for leaking information of public interest.
Part X (1) of the bill gives oversight to a state enterprise (the postal authority), which in turn reports directly to the executive. According to best practice, there is a need for an independent data protection authority answerable to Parliament, in order to minimise executive abuse.
Section 6 threatens to infringe on freedom of expression because there is no clear definition of offences related to electronic communications by individuals. It also gives the government the ability to “legally” violate privacy, thereby enabling state interference with online communications, and clamp down on potential social media revolutions as evidenced by the recent cases of Chin’ono and Ngarivhume.
The bill is a threat to free speech.
‘Cyber offences’ already being prosecuted
Since independence in 1980, Zimbabwe has only had one state-owned television station, but the internet has opened up alternative sources of information. The State’s current stance on freedom of expression clearly shows that the bill can be used to stifle dissent.
More than a dozen people have been arrested since July 2020 for offences committed in cyberspace, although there is not yet a specific law to prosecute alleged offenders.
The bill comes as no surprise, given previous internet shutdowns during demonstrations in the country. The recent intensified prosecution of people for allegedly expressing themselves on Twitter and other social media platforms indicates the government’s desire to cushion itself from public pressure.
Here are some examples of cases represented by Zimbabwe Lawyers for Human Rights:
– On 21 July 2020, Zimbabwe Lawyers for Human Rights, together with lawyer Sheila Jarvis, challenged the police seizure of personal information from mobile operator Econet Wireless, arguing that the warrant was unlawful and violated the constitutional right to privacy.
– On 29 July 2020, 32-year-old George Makonzo was charged with criminal nuisance and incitement after tweeting that “Chin’ono will be remembered for the great job he is doing while those corrupt ones will have nowhere to run. That day will come.”
– Confidence Sithole was arrested on 4 August 2020 for inciting public violence after he allegedly circulated a picture on WhatsApp of himself and a friend holding the Zimbabwean flag, a hoe and an axe. The picture was inscribed “Ready for the battle tirikuendapo”, which prosecutors translated to mean “We are coming there”.
– National University of Science & Technology student Rujeko Hither Mpambwa, 22, was arrested on 6 August 2020 for allegedly insulting the president after she criticised him in a WhatsApp group for “lacking patriotism” after his televised address to the nation.
– Nurse Moses Sigauke was arrested in July after allegedly recording a video and posting it on Facebook, encouraging other nurses to join the nationwide demonstrations against corruption.
During the 2018 harmonised election, members of the main opposition party fought among themselves, which saw more than one candidate forwarded for constituencies and no election agents in more than 1,500 polling stations.
The concoction of challenges, many of which were self-inflicted, resulted in Zanu PF gaining a two-thirds majority, which it can effectively and legitimately use to pass the bill into law.
The inherent folly that characterises opposition politics in Zimbabwe is that they spend too much time singing praise songs to Nelson Chamisa in Parliament, thinking that they are spiting their Zanu PF counterparts. When confronted to account for any gains in the House of Assembly, the opposition laments that it does not have a majority to influence a vote.
Does this mean they can’t oppose and stall the bill in Parliament? Are voters going to wait for the main opposition to get a majority in Parliament to start seeing any meaningful gains in the fight for civic freedoms?
These questions paint a gloomy picture of Parliament as the last line of defence in the democratic struggle for human rights in Zimbabwe.
Constitutional lawyer and University of Zimbabwe lecturer Professor Lovemore Madhuku told Daily Maverick: “It does not necessarily follow that the bill will easily become law. The court can set aside a decision by Parliament to overlook an adverse report by a parliamentary legal committee. So, the two-thirds majority is not an open licence for Parliament to do anything, there are limits to the exercise of power by a two-thirds majority.”
Madhuku urged citizens to be “alert and not give up before engaging”, on the basis that Zanu PF has the majority.
“People must know there’s still room in this country to fight for certain positions, regardless of what you think. As long as there’s a clear case that is made on how the bill is infringing certain core rights in the Constitution, we cannot already say it will just pass, it’s a forgone conclusion. I don’t agree with that kind of approach or even the conclusion,” Madhuku said.
If signed into law in its current form, the bill will join the Maintenance of Peace and Order Bill to become the biggest blow since the repealing of the draconian Public Order Security Act and the Access to Information and Protection of Privacy Act, which were passed to prohibit access to information and privacy at the height of Mugabe’s rule.
Credit card fraud is on a steep increase in Zimbabwe and strong cyberlaws will deter would-be offenders. While the threat of potential cyberattacks is real to any country, including Zimbabwe, the country’s cyberlaws ought to be guided by respect for human rights.
Other threats to democracy
Tendai Biti, the vice-president of the main opposition MDC Alliance and a human rights advocate, has been accused by the ruling Zanu PF of being behind the Zimbabwe Democracy and Economic Recovery Act, which imposed sanctions on the country.
Enforced by the US, the act laid the foundation for targeted sanctions on Zimbabwean state actors who are accused of human rights violations.
Biti and others, including Chamisa, are alleged to have called for sanctions against Zimbabwe, in spite, after losing the elections. Zanu-PF members of Parliament and state actors have called for the amendment of the Citizenship of Zimbabwe Act (Chapter 4:01) by the insertion of Section 20, which provides as follows:
Offences for violating duties of citizenship:
(1) It shall be an offence for a citizen of Zimbabwe without due authority, to:
a) Travel to a foreign country and negotiate with any foreign government to effect measures which negatively affect Zimbabwe’s interest.
b) Call on any foreign government or its agent to effect economic sanctions while in the territory of Zimbabwe.
Madhuku argued that it will not be possible to pass such a law because it will violate the Constitution.
“Whoever is going to do that will still suffer the disadvantage that the courts will set aside that kind of thing. People must know that it’s no longer possible in this country for an out-and-out process of oppression through passing laws in Parliament,” said Madhuku.
Media freedoms and journalism in Zimbabwe
In July, Mnangagwa promised to “flush out all malcontents and peddlers of falsehoods who are bent on destabilising his government”. Journalist Chin’ono is currently being prosecuted for tweeting awareness about the US$60-million Drax International, Covid-19 procurement scandal involving the first family. The State has accused him of inciting public violence.
The Drax story was first published by investigative journalist and editor of ZimLive Mduduzi Mathuthu, who has been in hiding since July. Police arrested Mathuthu’s sister and his three nephews, including Tawanda Muchehiwa, after they failed to find him. Muchehiwa then went missing from police custody, only to reappear after being dumped at Mathuthu’s place, severely tortured.
Another journalist who was a fierce critic of the government, Itai Dzamara, was abducted during the day and has been missing since 2015.
— Daily Maverick