Internet Governance in Zimbabwe
An analysis of legislation in Zimbabwe that has an impact on the use of the internet. MISA Zimbabwe would like to acknowledge the following:
Otto Saki - Researcher Hivos - Partner
Published by MISA Zimbabwe www.misazim.com
©2016 Misa-Zimbabwe All Rights Reserved CONTENTS
Introduction 1 Internet use in Zimbabwe 3 Who owns Internet? 4 Internet usage 4
Legislative and Regulatory Framework 5 Constitution 5 Right to human dignity 5 Right to Personal Security 6 Right to Privacy 7 Freedom of Expression and Freedom of the Media 8 Access to Information 8 Limitation of Rights 9
Regulatory Legislation 10 Postal and Telecommunications Act 10 Interception of Communications Act 11 Criminal Law (Codi cation Reform) Act (CODE) 11 Censorship and Entertainment Controls Act 12 Access to Information and Protection of Privacy Act 13 Consumer Contracts Act 13 Copyright Right and Neighbouring Rights Act 14
Regulatory and Oversight Bodies 15 Cabinet Committee on Scienti c Research, Technology Development and Applications 15 Monitoring of Interception of Communications Centre 15 Postal and Telecommunications Regulatory Authority (POTRAZ) 15 Zimbabwe Media Commission 16 Broadcasting Authority of Zimbabwe 16 Consumer Council of Zimbabwe 16 Zimbabwe Internet Service Providers Association 17 Zimbabwe Internet Governance Forum 17
Incidents of Breach of Rights 18 State vs. Edmund Kudzayi and Another (Baba Jukwa) 18 State vs. Vikas Mavhudzi 19
International and Regional Law and Practices 20 ICCPR, General Comments and Special Rapporteur on Freedom of Expression 20 UN Special Rapporteur on Right to Privacy 20 African Union Convention Cyber Security and Personal Data Protection in Africa 21 African Charter on Human and Peoples Rights and Associated Declarations 21 Tunis Commitment and Tunis Agenda for the Information Society (2005) 22
Recommendations and Conclusions 23 Personal and Privacy Data/Personal Data Protection Bill 23 Information Communication Technology Bill 24 Cyber Crimes Bill 24 Consumer Protection Bill 24 Electronic Commerce Bill 24 National ICT Policy Implementation 24 Zimbabwe Internet Governance Forum 25 Civil Society Internet Rights Watch/Forum 25 25 and policies in place are not concerned with facilitation individual lives” This is not to suggest that the technical access content net neutrality use and furtherance of funda matters are not important the research terms are con ning Introduction mental rights and freedoms as enshrined in the Constitution to those matters The terms of reference intends to; or other international norms that Zimbabwe has rati ed and acceded Unfortunately the current framework that could be • Summarise internet use in Zimbabwe including mobile Introduction arguably de ned as internet governance framework is access⁄social media trends Internet use in Zimbabwe concerned more with control security and restrictions These Who owns Internet? regulations and measures have been adopted as part of the • Detail existing and pending legislation and policy measures Internet usage ordinary laws on access to information regulation of commu around internet governance in Zimbabwe including legisla
nications or ordinary setting up of communications and tion that appears unrelated to internet use but have impact Legislative and Regulatory Framework internet infrastructure Constitution • Give recommendations on policy directions the country Right to human dignity This paper is focusing on internet governance as it relates to should take towards democratic internet governance Right to Personal Security the “issues concerned with the use of the Internet – the ways Right to Privacy in which it impacts on society economy politics culture and Freedom of Expression and Freedom of the Media Access to Information Limitation of Rights
Regulatory Legislation Postal and Telecommunications Act Interception of Communications Act Criminal Law (Codi cation Reform) Act (CODE) Censorship and Entertainment Controls Act Access to Information and Protection of Privacy Act Consumer Contracts Act Copyright Right and Neighbouring Rights Act
Regulatory and Oversight Bodies For purposes of this research, the de nition of should ordinarily be interested in issues of access, Cabinet Committee on Scienti c Research, Technology Development and Applications internet governance as adopted by World Summit for security, diversity and openness. These were the Monitoring of Interception of Communications Centre Information Society (WSIS) will be used, which is the inaugural themes for the rst internet governance Postal and Telecommunications Regulatory Authority (POTRAZ) development and application by Governments, the forum (IGF) meeting. Zimbabwe Media Commission private sector and civil society, in their respective Broadcasting Authority of Zimbabwe roles, of shared principles, norms, rules, The involvement of private sector and civil society in Consumer Council of Zimbabwe decision-making procedures, and programmes that internet governance is critical. In many jurisdictions Zimbabwe Internet Service Providers Association shape the evolution and use of the Internet. The private sector constitutes a signi cant enabler, active Zimbabwe Internet Governance Forum internet society de nes internet governance as a participant and an equal threat to actual enjoyment
Incidents of Breach of Rights broad term used in many di erent contexts, [which] of rights and freedoms associated with the internet applies to activities as diverse as the coordination of more than the state. In restrictive environments, State vs. Edmund Kudzayi and Another (Baba Jukwa) technical standards, the operation of critical internet service providers (ISPs), are proactive in State vs. Vikas Mavhudzi infrastructure, development, regulation, legislation censoring or ltering information on websites and
International and Regional Law and Practices and more. The de nition by the WSIS captures all the trac. An appropriate example of such is China, essential aspects and includes the di erent actors where several companies were actively supporting ICCPR, General Comments and Special Rapporteur on Freedom of Expression such as, private sector, civil society and government. the government in censorship, these include Yahoo UN Special Rapporteur on Right to Privacy From the de nition it is clear that there is apprecia- Inc!, Google. Inc, Microsoft Corporation and Skype. African Union Convention Cyber Security and Personal Data Protection in Africa tion of the di erent roles and responsibilities of These companies responded, e ectively expressing African Charter on Human and Peoples Rights and Associated Declarations stakeholders in internet governance matters. Shared the need to conduct business and compliance with Tunis Commitment and Tunis Agenda for the Information Society (2005) principles do exist but informed by sectoral interests. the laws of China including to provide the service
Recommendations and Conclusions Ordinarily government and states lead in the devel- under censorship laws than not providing such at all. opment of governance frameworks to regulate or This is not an unusual response. Personal and Privacy Data/Personal Data Protection Bill facilitate particular activities, relationships, contracts Information Communication Technology Bill between juristic and natural persons, between The government’s role in internet governance frame- Cyber Crimes Bill persons, between juristic persons. While public and work is di erent from other communications gover- Consumer Protection Bill private law remains, it is always grounded in some nance framework which evolved entirely under the Electronic Commerce Bill government led frameworks. Internet governance domain of government or the state. The current laws National ICT Policy Implementation Zimbabwe Internet Governance Forum 1 WSIS, Tunis Agenda for the Information Society, 2005, para. 34, Civil Society Internet Rights Watch/Forum 2 Avri Doria and Wolfgang Kleinwächter (eds) Internet Governance Forum(IGF) The First Two Years. Retrieved from: http://www.intgovforum.org/cms/documents/publications/172-in- ternet-governance-forum-igf-the- rst-two-years/ le (accessed 17 June 2015) 3 Human Rights Watch “Race to the Bottom” Corporate Complicity in Chinese Internet Censorship, 2006 4 Supra, Yahoo! issued a press release titled “Our Beliefs as a Global Internet Company,” in which the company made the following commitments: As part of our ongoing commitment to preserving the open availability of the Internet around the world, we are undertaking the following: Collective Action: We will work with industry, government, academia and NGOs to explore policies to guide industry practices in countries where content is treated more restrictively than in the United States and to promote the principles of freedom of speech and expression. Compliance Practices: We will continue to employ rigorous procedural protections under applicable laws in response to government requests for information, maintaining our commitment to user privacy and compliance with the law. Information Restrictions: Where a government requests we restrict search results, we will do so if required by applicable law and only in a way that impacts the results as narrowly as possible. If we are required to restrict search results, we will strive to achieve maximum transparency to the user. Government Engagement: We will actively engage in ongoing policy dialogue with governments with respect to the nature of the Internet and the free ow of information. 1 and policies in place are not concerned with facilitation individual lives” This is not to suggest that the technical access content net neutrality use and furtherance of funda matters are not important the research terms are con ning mental rights and freedoms as enshrined in the Constitution to those matters The terms of reference intends to; or other international norms that Zimbabwe has rati ed and acceded Unfortunately the current framework that could be • Summarise internet use in Zimbabwe including mobile arguably de ned as internet governance framework is access⁄social media trends concerned more with control security and restrictions These regulations and measures have been adopted as part of the • Detail existing and pending legislation and policy measures ordinary laws on access to information regulation of commu around internet governance in Zimbabwe including legisla nications or ordinary setting up of communications and tion that appears unrelated to internet use but have impact internet infrastructure • Give recommendations on policy directions the country This paper is focusing on internet governance as it relates to should take towards democratic internet governance the “issues concerned with the use of the Internet – the ways in which it impacts on society economy politics culture and
Below is pictorial presentation of issues that give rise to internet governance and the focus for the paper con nes itself to the rights and political spaces.
For purposes of this research, the de nition of should ordinarily be interested in issues of access, internet governance as adopted by World Summit for security, diversity and openness. These were the Information Society (WSIS) will be used, which is the inaugural themes for the rst internet governance development and application by Governments, the forum (IGF) meeting. private sector and civil society, in their respective roles, of shared principles, norms, rules, The involvement of private sector and civil society in decision-making procedures, and programmes that internet governance is critical. In many jurisdictions shape the evolution and use of the Internet. The private sector constitutes a signi cant enabler, active internet society de nes internet governance as a participant and an equal threat to actual enjoyment broad term used in many di erent contexts, [which] of rights and freedoms associated with the internet applies to activities as diverse as the coordination of more than the state. In restrictive environments, technical standards, the operation of critical internet service providers (ISPs), are proactive in infrastructure, development, regulation, legislation censoring or ltering information on websites and and more. The de nition by the WSIS captures all the trac. An appropriate example of such is China, Figure 1: Mindmapping Internet governance issues. Source – APC, Mapping Internet Public Policy, essential aspects and includes the di erent actors where several companies were actively supporting such as, private sector, civil society and government. the government in censorship, these include Yahoo The issues raised in the above mind-mapping picture respect of internet governance might rest entirely on From the de nition it is clear that there is apprecia- Inc!, Google. Inc, Microsoft Corporation and Skype. cannot all be exhausted. The researcher is therefore the private sector such as telecommunications tion of the di erent roles and responsibilities of These companies responded, e ectively expressing focusing on the rights, access to information, cultural companies and internet service providers (ISPs). This stakeholders in internet governance matters. Shared the need to conduct business and compliance with and social aspects in this analysis, but with a heavy raises the extent to which private actors can be held principles do exist but informed by sectoral interests. the laws of China including to provide the service bias towards the existing laws and regulations as they accountable for breaching constitutional or legislative Ordinarily government and states lead in the devel- under censorship laws than not providing such at all. relate to the issues of internet governance. This provisions in their engagement with citizens on opment of governance frameworks to regulate or This is not an unusual response. analysis is further mindful of the di erent power contractual issues such as expiring unused data facilitate particular activities, relationships, contracts structures in respect of the internet, that while bundles, or limitations of browsing and downloading between juristic and natural persons, between The government’s role in internet governance frame- governments might be instrumental in law making content. persons, between juristic persons. While public and work is di erent from other communications gover- and policy issues, the actual implementation in the private law remains, it is always grounded in some nance framework which evolved entirely under the government led frameworks. Internet governance domain of government or the state. The current laws
5 David Souter, Assessing National Governance Internet Arrangements : A framework for comparative assessments, April 2012
2 Internet Use in Zimbabwe
It is important to understand the internet for one to support specially formatted documents. The documents meaningfully participate in discussions or debate on are formatted in a mark-up language called HTML (Hyper- internet governance. There is need for an in-depth compre- Text Markup Language) that supports links to other hension of internet form, what it is, how it works, who documents, as well as graphics, audio, and video les. owns it, and the terminology around it. This section gives Hypertext Transfer Protocol (HTTPS) is a protocol for secure context to internet use in Zimbabwe, illustrating interlinks communication over a computer network which is widely with the broader internet space. Internet is a global used on the Internet. The main motivation for HTTPS is computer network providing a variety of information and authentication of the visited website and to protect the communication facilities, consisting of inter-connected privacy and integrity of the exchanged data. Secure networks using standardised communication protocols. websites have their Uniform Resource Locator URL, It's a collection of inter-networked computer systems that pre xed with HTTPS. Information that we get from the spans the entire globe. It depends on several sets of rules internet is stored on networked machines that are called called protocols. These protocols make it possible for Servers. Every computer that is connected to the Internet is computer communication across networks. It also relies on part of a network. Computers are connected to the a huge infrastructure of routers, Network Access Points internet via an Internet Service Provider (ISP). The ISP may (NAPs) and computer systems. Then there are the satellites, then connect to a larger network and become part of their miles of cable and hundreds of wireless routers that network. The Internet is a network of networks. Sending transmit signals between computers and networks. When and receiving emails is done through an ISP’s mail server. two computers are connected over the Internet, they can The message is transmitted and received with Simple Mail send and receive all kinds of information such as text, Transfer Protocol (SMTP) and Post Oce Protocol Version 3 graphics, voice, video, and computer programmes. The (POP3) respectively. World Wide Web is a system of Internet servers that
6 IGI Global: International Publishers of Progressive Academic Research Books and Journals. Retrieved from http://www.igi-global.com/dictionary/internet/15369 (accessed July 1, 2015)) 7 Baylor University. Web Terminology. Retrieved from http://www.baylor.edu/cms/index.php?id=93970 (accessed July 1, 2015)\
3 Who owns Internet? Not one, but everyone owns the internet. There are many report noted that Zimbabwe had 11.798.652 mobile organisations, corporations, governments, schools, phone subscribers, being 80.82 subscribers per 100 private citizens and service providers that all own pieces inhabitants. Globally, as of 1 July 2015, Google remains of the infrastructure, but there is no one body that owns the most popular search engine with monthly unique it all. The Internet is more of a concept than an actual visitors of 1, 1 billion, followed by Bing with 350 million, tangible entity, and it relies on a physical infrastructure Yahoo with 300 million, and many more in descending that connects networks to other networks. The Internet order. Facebook is the most popular social networking consists of lots of di erent bits and pieces, each of which site, with 900 million monthly unique visitors, followed has an owner. Some of these owners can control the by Twitter with 310 million, LinkedIn with 255 million, quality and level of access you have to the Internet. They and many more in descending order. The most popular might not own the entire system, but they can impact person(s) on the internet vary over time, with 16- year your Internet experience. The physical network that old Canadian Justin Bieber ranking 1st in 2010 and 25 carries Internet trac between di erent computer year old Swedish Felix Arvid Ulf Kjellberg (aka. systems is the Internet backbone. Within the backbone PewDiePie) in 2015 , however of interest is to look at are Internet Exchange Points (IXPs), which are physical trends on most popular issues that people search for on connections between networks that allow data exchang- the internet. Sport and entertainment are the most sort es. Several large corporations provide routers and cable after. In Zimbabwe, the most popular individuals on that make up the Internet backbone. These companies Facebook are Mufti Ismail Menk and Strive Masiyiwa with are upstream Internet Service Providers (ISPs). Then there over 1.196.000 fans and 899.171 respectively. These are the smaller ISPs that are not part of the Internet individuals are then followed by a private company, backbone that subscribe to upstream ISPs. These ISPs Econet, with 575.122 fans. Local newspapers, Newsday negotiate with the upstream ISPs for Internet access. and Herald are number 5 and 8, with 469.545 and 153.381 fans respectively. On Twitter, the top ve Internet Usage pro les are Mufti Ismail Menk, with 575.366 followers, According to the Postal and Telecommunications Danai Gurira, 123.233 followers, Bishop Tudor Bismark, Regulatory Authority (POTRAZ) by end of 2015, Zimba- 92 160, NewsDay 91.739 and Econet with 76.363. bwe’s internet penetration stood at 46.6%. Individual users’ details for social media sites such as The International Telecommunications Union (ITU) 2014 Facebook and Twitter are not available for Zimbabwe.
8 Mobile Cellular Subscriptions. Retrieved from http://www.itu.int/en/ITU-D/Statistics/Documents/statistics/2015/Mobile_cellular_2000-2014.xls (accessed 18 July 2015) 9 TIME: Current and Breaking News. Retrieved from http://time.com/3732203/the-30-most-inuential-people-on-the-internet/ (accessed July 1, 2015) 10 Google Trends. Retrieved from https://www.google.com/trends/ (accessed July 16, 2015) 11 Zimbabwe Facebook Statistics. Retrieved from http://www.socialbakers.com/statistics/facebook/pages/total/zimbabwe/ (accessed 18 July 2015) 12 Zimbabwe Facebook Statistics supra, 11 13 Zimbabwe Twitter Statistics. Retrieved from http://www.socialbakers.com/statistics/twitter/pro les/zimbabwe/ (accessed 18 July 2015)
4 Legislative and Regulatory Framework
Constitution The Constitution of Zimbabwe is hailed as a progressive freedom of expression “as the right that includes freedom document due to it is fairly expansive Bill of Rights, to hold opinions without interference and to seek, receive, inherent safeguards through judicial and other indepen- and impart information and ideas through any media and dent bodies. There are limitations however to the enjoy- regardless of frontiers”. Internet has removed those ment of those rights and in respect of their application to frontiers. Coupled with globalisation, convergence of internet governance. The provisions of the Constitution means of dissemination and notion of inter-operability of are not categorical in respect of the internet. The internet platforms, multi-media issues and ability for information is however viewed and considered a tool, platform, formats to be altered and modi ed. These technological vehicle or evidence of the enjoyment of the other rights, advancements e ectively challenge the continuous with the associated and inherent limitations. The emer- limited interpretation of rights to respond or reect the gence of the internet has however brought new meaning changing environs. to the rights as contained in the Constitution. The internet gives rise to new spaces, di erent from the old, virtually di erent from the physical, di erent from print in respect Right to human dignity of expression and access to information, with boundaries Section 51 of the Constitution provides that every person not de ned by one’s extent and constraints. Privacy issues has inherent dignity in their private and public life, and have become central as boundaries are easily crossed, the right to have that dignity respected and protected. blurred and ctitious/imaginary. The rapid globalisation The internet has and remains a tool used for purposes of trends have removed the boundaries that were o ered by private and public communications or use, information limited technology eras. Provisions of international gathering, social interactions, among others. As a sphere human rights instruments for instance, the Universal for the enjoyment or exercising of a digni ed life or Declaration of Human Rights (UDHR), Article 19, speaks of existence, one would argue that this provision would
5 extend to the private and public life as exercised through “We think that the right to life includes the right to live with human the internet as a medium. This provision raises questions dignity and all that goes along with it, namely, the bare necessaries about the extent to which such protection extends to of life such as adequate nutrition, clothing and shelter and facilities matters relating to personal pictures, videos of a sexual for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human nature recorded in the privacy of one’s home that ends up beings. Every act which o ends against or impairs human dignity in public domains especially if such were produced for would constitute deprivation pro tanto of his right to live and it personal purposes and by individuals over 18 years of age. would have to be in accordance with reasonable, fair and just These pictures have ended up on social media, websites procedure established by law which stands the test of other and other internet based forums. Zimbabwe has seen an fundamental rights.” increase in these cases in particular in respect of female celebrities and some instances female models. The notion In the Prinsloo v RCP Media Ltd t/a Rapport the court of human dignity is however expanding beyond the observed that that the possession by a newspaper of limitation to civil, political and social and economic rights. photographs of persons involved in intimate sexual acts It must be considered that human dignity is “the funda- leaves them “at the mercy of another” and violates their mental agency of human beings to apply their gifts to dignity and privacy”. thrive. As such, it requires social recognition of each person’s inherent value and claim to opportunity. To be In the locus case of State vs. Makwanyane, the South meaningful, human dignity must be institutionalised in African Constitutional Court, Justice O’Reagan opined that practice and governance”. This introduces dimension of “recognising a right to dignity is an acknowledgement of personal growth including having an institutionalised the intrinsic worth of human beings: human beings are approach of such in practice and governance in the entitled to be treated as worthy of respect and concern. pursuit of human dignity. Certain advanced jurisdictions are exploring the enactment of unique identity (UID) This right therefore is the foundation of many of the other which will allow a centralised approach to obtaining rights that are speci cally entrenched in [the Bill of information on citizens that relates to bank accounts, Rights]” loans, rates and service delivery. This has been contested as e ective state surveillance through compulsory The protection of human dignity during the age of registration. technological advancement is controversial and very much disputed due to di ering schools and approaches. Decisions of the South African and Indian superior courts However, it should be clear that in the advancement of have reiterated the importance and centrality of the this right there are certain minimums and norms which protection of human dignity as a right that e ectively would require protection and observance, unfortunately creates conditions for the enjoyment of other fundamen- Zimbabwe still faces challenges in respect of the barest tal freedoms. The Supreme Court of India in the case of minimums such as invasion of privacy and further Naz Foundation v. Government of NCT and Others contestation or lack of clarity on regulation and gover- observed that, nance.
“At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as Right to Personal Security members of our society. It recognises a person as a free being who Section 52 (a) of the Constitution provides that every develops his or her body and mind as he or she sees t. At the root of person has the right to bodily and psychological integrity, the dignity is the autonomy of the private will, and a person's which includes the right to freedom from all forms of freedom of choice and of action. Human dignity rests on recogni- violence from public or private sources. Zimbabwe’s tion of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he jurisprudence has not developed signi cantly in respect can provide to others.” of these rights since they are fairly new additions to our Constitution, therefore comparative and persuasive Justice Bhagwati in the case of Francis Coralie Mullin v. interpretations from other jurisdictions in particular South Administrator, Union Territory of Delhi and Ors observed Africa, are instructive. In the case of Ferreira vs Levin NO, and ruled that; Ackermann J argued that the right to freedom was a constitutional protection of the sphere of individual
14 See Mark P. Lagon and Anthony Clark Arend in Human Dignity and the Future of Global Institutions Georgetown Press, October 2014 15 Retrieved from: hZp://www.prsindia.org/uploads/media/NIA%20Drap%20Bill.pdf (accessed 13 June 2015) 16 MANU/DE/0869/2009 17 (1981)2 SCR 516 18 2003 4 SA 456 (T) 4 19 S v Makwanyane 1995 (6) BCLR 665 (CC); S v Makwanyane 1995 (3) SA 391 (CC) 20 See C. Weeramantry, Justice Without Frontiers: Furthering Human Rights, Protecting Human Rights in the Age of Technology, Springer 1998
6 liberty. The judge went on to de ne the right to freedom subjected him to mental pain and distress, far greater negatively as the right of individuals not to have obstacles than could be inicted by mere bodily injury.” The right to possible choices placed in their way by the state. This to privacy of communications is central to the enjoyment de nition was later rejected by the Constitutional Court as of internet access. This right however faces restrictions in the protection a orded goes beyond physical integrity. many instances once an individual willingly enters into This right as per our Constitution needs further exposition agreement of employment for instance, or contractual in respect of its application to integrity that relates to agreements that might lead to some level of disclosure of spaces that one occupies or interacts with through private information to a second party. Civil cases of internet. The right to be left alone, as being allowed to invasion of privacy of communications has already been make choices over one’s integrity could be read to mean dealt with in South Africa in respect of conversations such ability to exercise decisions and choices that relate to illegally obtained during course of employment and use of internet. whether such constitute a violation of privacy. In Protea Technology vs. Wainer, the court held that an employee has right to privacy of communications, but in respect of Right to Privacy conversations involving the employer’s a airs, the Section 57 of the Constitution provides that every person employer is entitled to demand and obtain as full an has the right to privacy, which includes the right not to account as the employee can furnish. Upon termination of have- (a) their home, premises or property entered contract or when employee abandons private sphere then without their permission, (b) their person, home, premises protection of privacy ceases. or property searched; (c) their possessions seized; (d) the privacy of their communications infringed; or (e) their The right to privacy has been de ned to have four themes health disclosed. This provision is clear. The internet by of which three have a direct relation with the internet and virtue of being a medium for communication and internet governance. These are information privacy, bodily information sharing using some form of device, such as privacy, privacy of communications and territorial privacy. computer or mobile phone makes ones communication Information privacy, involves the establishment of rules through these devices susceptible to inference. This can governing the collection and handling of personal data be done through remote access including very much such as credit information, and medical and government unauthorised remote access. Such access would be records. It is also known as data protection. Bodily contrary to section 57(a), as computers and mobile privacy, concerns the protection of people’s physical phones can be suciently de ned as property for purpos- selves against invasive procedures such as genetic tests, es of this section but also further to that “what man seeks drug testing and cavity searches. Privacy of communica- to preserve as private, even in an area accessible to the tions, which covers the security and privacy of mail, public, may be constitutionally protected” compared to telephones, e-mail and other forms of communication. what he knowingly exposes to the public even in his Territorial privacy, concerns the setting of limits on home or oce might not be protected. The right to intrusion into domestic and other environments such as privacy has been de ned as the ‘right to be let alone’ as the workplace or public space. This includes searches, per Justice Brandeis in his dissenting opinion in the case video surveillance and ID check. of Olmstead v. United States. Black’s Law Dictionary refers to privacy as “the right to be let alone; the right of a Privacy of communications and protection of data face person to be free from unwarranted publicity; and the enormous challenges in the age of internet. The increase right to live without unwarranted interference by the in data banks which collect personal and commercial public in matters with which the public is not necessarily information for individuals such as credit ratings, loans, concerned.” Justice Brandeis in a journal article followed banking details, real estate among others, are on the up on his views in respect of right to privacy stating that increase. This information is used for mainly commercial “the intensity and complexity of life, attendant upon purposes but with no clear parameters for the individual advancing civilisation, have rendered necessary some concerned to take action if concerned with or aware of a retreat from the world, and man, under the re ning violation. This information might become available on inuence of culture, has become more sensitive to public platforms, and the process of removing, or techni- publicity, so that solitude and privacy have become more cally framed take-down notice might be cumbersome, essential to the individual; but modern enterprise and met with resistance or lack of cooperation from the invention have, through invasions upon his privacy, internet service providers (ISPs) concerned. Territorial
21 Ferreira vs Levin NO 1996 (1) SA, 984 (CC) para 54 22 Katz vs. United States 389 U.S. 347, 351 (1967). 23 277 U.S. 438 (1928) 24 3rd Edition 25 Samuel Warren and Louis D. Brandeis, The Right To Privacy, 4 Harvard Law Review 193 (1890) 26 See also C, Ncube, 'A Comparative Analysis of Zimbabwean and South African Data Protection Systems', 2004 (2) The Journal of Information, Law and Technology (JILT). Retrieved from: http://www2.warwick.ac.uk/fac/soc/law2/elj/- jilt/2004_2/ncube/ (accessed 2 July 2015), 27 1997 (9) BCLR 1225 (W) 28 See Deva Prasad, Analysing the Right to Privacy and Dignity with Respect to the Unique Identity, The Centre for Internet and Society. See also the Australian Privacy Law and Practice Report this was commissioned by the Australian Law Reform Commission. Retrieved from: http://www.alrc.gov.au/publications/report-108 (accessed 17 June 2015)
7 privacy, raises several issues as well in respect of the communications subject to State licensing procedures, ubiquitous nature of computing, and internet based which are necessary to regulate airwaves and other forms communications. Traditional de nitions of territory of signal distribution and are independent of control by intended a private space, room or location whose access government or by political or commercial interests. can be limited or contained. De nitions in respect of the Arguably it is under this provision that subsidiary laws advancement of technology renders this de nition that allow or provide for regulation or, control and inadequate as “invisible embedded sensors, actuators and establishment of regulatory authorities derive their in particular wireless communications could widen the existence. These laws will be dealt with further below. The boundaries of a private territory far beyond its physical Constitution excludes certain practices from the ambit boundaries”. This is a real danger and threat to conven- and protection of freedom of expression and freedom of tional understanding of territorial privacy, furthermore the media, including, acts that incite violence, advocacy the information that is transmitted is equally invisible and for hatred or hate speech, malicious injury to a person’s undiscernible to the ordinary mind without use of reputation and dignity or malicious or unwarranted enhancing technologies. breach of a person’s right to privacy. The interpretation of this section places an obligation on the state, private actors not to use platforms such as the internet for Freedom of Expression and purposes or activities that might lead to breach of a Freedom of the Media person’s right to privacy or malicious injury to a person’s This right stems from the UDHR, Article 19, and further reputation and dignity. Dignity is already provided for enshrined in the International Covenant on Civil and under the Constitution as a right. Limitations either in law Political Rights (ICCPR), Article 19 and Article 9 of the or practice of freedom of expression should meet the African Charter on Human and Peoples Rights (ACHPR). established test acceptable under the law. Zimbabwe has rati ed the ICCPR and ACHPR, further guided by the UDHR, which has attained customary Freedom of the media, encompasses their ability to be international law status due to application and use over established and operate, and their ability to operate free the years. Section 61 (1) of the Constitution provides that from state molestation. However, this does not give a every person has the right to freedom of expression which carte blanche for their operations to constitute a violation. includes (a) freedom to seek, receive and communicate For instance, freedom of the media to disclose personal ideas and other information (b) freedom of artistic images or pornographic material might not be deemed expression and scienti c research and creativity and (c) acceptable at law, as they would fall foul of the limitations academic freedom. This provision is similar to section 16 provided. Pornographic material might constitute (1) of the South African 1996 Constitution. Zimbabwe’s freedom of artistic expression, as part of art. In the courts have dealt with this provision under the repealed Zimbabwean context this remains to be seen whether constitution (Section 20) and in many instances upheld laws such as the Censorship and Entertainment Controls the fundamental provisions of the right. In the case of Act can pass the constitutional muster. Freedom of the Chavhunduka vs. Minister of Home A airs and Another, media, is de ned to include protection of con dentiality the Supreme Court of journalists’ sources of information. In the instances of increased databanks, leakages, cyber-attacks, cyber-crime, “held that s 20(1) of the Constitution is to be given a benevolent and the issue of journalistic sources becomes critical. If the purposive interpretation. It has repeatedly declared the importance information was obtained through unlawful means, there of freedom of expression to the Zimbabwean democracy. Further- is room to challenge the publication without necessarily more, what has been emphasised is that freedom of expression has asking for disclosure of the source. Con dentiality of four broad special objectives to serve: (i) it helps an individual to sources is paramount for the enjoyment of freedom of obtain self-ful lment; (ii) it assists in the discovery of truth, and in expression, it is limited to the extent that such is consis- promoting political and social participation; (iii) it strengthens the tent with provisions of Section 61 (5). capacity of an individual to participate in decision-making; and, (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.” Access to Information The access to information (ATI) laws in Zimbabwe are still The Constitution further provides for freedom of estab- weak, and this is worse for e-access to information (e-ATI). lishment of broadcasting and other electronic media
29 Bastian Könings and Florian Schaub Territorial Privacy in Ubiquitous Computing, Institute of Media Informatics Ulm University, Germany. Retrieved from: https://www.uni-ulm.de/ leadmin/web- site_uni_ulm/iui.inst.100/institut/mitarbeiter/schaub/2011-WONS-tp-ubicomp.pdf (accessed 17 June 2015) 30 2000 (1) ZLR 522 (SC) at 558D-E, several other decisions on freedom of expression include Capital Radio (Pvt) Ltd. v Broadcasting Authority of Zimbabwe and Others SC 162/2001s SC 52/02, 31 Sec+on 61(3) (a), (b) 32 Sec+on 61(5) a 33 Sec+on 61(5) b 34 Sec+on 61(5) c 35 Sec+on 61(5) d 36 See section on limitations of rights below 37 De Reuck vs Director of Public Prosecution 2004 (1) SA 406 (CC), the South African constitutional court seems to be of the view that pornography constitutes artistic creativity including child pornography. Further in the case of Phillips vs. Director of Public Prosecutions 2003 (3) SA 345 (CC) para 48 the court holds that prohibition of entertainment featuring indecency, obscenity or nudity, is an infringement on the right to artistic creativity since the prohibition hits dramatic performances including plays and concerts irrespective of whether they represent serious works of art or the communication of thoughts and ideas essential for positive social development.
8 Section 62 of the Constitution provides for ATI by citizens by the Supreme Court’s ruling in the case of Nyambirai v NSSA & or permanent residents of Zimbabwe including juristic Anor. The limitation of rights is usually in terms of laws or persons if such information is held by a state agency, or practices or some other subsidiary regulation or action of the institution at any level of government. This information executive, a private person or state agency. The Supreme Court in the Nyambirai case set out a three tier criteria that legislation should be available for purposes of public accountability. has to satisfy to be adjudged reasonably justi able in a demo- Section 62(2) provides that every person including the cratic society. These are: whether the objective of the legislation Zimbabwe media has a right to access of information held is suciently important to justify limiting a fundamental right; by any person including the state for exercising or whether the measure designed to meet the legislative objective protecting a right. Subsidiary legislation is yet to be rationally connected to it; and whether the means used to enacted compliant with the Constitution as provided impair the right or freedom are no more than is necessary to under Section 62 (3). The major issue that will require accomplish the objective. The concept of reasonably justi able critical inclusion is the application of this provision in has been considered an elusive concept. The courts have held respect of information that is held by the state in electron- that reasonably justi able “de es precise de nition by the courts. There is no legal yardstick, save that the quality of ic format, such as a database, transactions conducted by reasonableness of the provision under attack is to be adjudged state agencies, for instance commercial electronic trans- on whether it arbitrarily or excessively invades the enjoyment of fers or collection of personal data, lawfully or otherwise. the guaranteed right according to the standards of a society that Prior to the 2013 Constitution, there was no constitutional has a proper respect for the rights and freedoms of the provision stating the right to access to information. The individual” . inclusion of the word any person and any institution under Section 62 (1) and (3) could potentially allow The clarity of the Constitution in terms of the limitations is yet to request for information held by private persons or be fully tested before the courts and the constitutional court in companies. In the digital age the extent of information particular. However, the provisions under Section 86 (2) are that is harvested or stored by private actors is more than fairly thorough and detailed to deter intrusive, unwarranted and unregulated limitation of fundamental rights. The act of what the government has in respect of individuals. limitation would have to be fair, reasonable, necessary, and Currently laws that relate to e-access to information are justi able in a democratic society based on openness, justice, limited if not none existent. This presents loopholes as the human dignity, equality and freedom. Further, the following Zimbabwe government moves towards an e-government should be taken into account as per the Constitution; a) the framework, while the transition from hard to electronic nature of the right or freedom concerned; b) the purpose of the les and lling will require signi cant resources, enabling limitation, in particular whether it is necessary in the interests of laws for e-access to information should be introduced defence, public safety, public order, public morality, public now. A good example is a company that o ers related health, regional or town planning or the general public interest; services under one parent company but with subsidiaries c) the nature and extent of the limitation; d) the need to ensure that the enjoyment of rights and freedoms by any person does for mobile services, banking services, insurance details, not prejudice the rights and freedoms of others; e) the relation- and medical aid facility. The danger, depth and detail ship between the limitation and its purpose, in particular contained by such a company can rival some state whether it imposes greater restrictions on the right or freedom agencies. State actors have a history of secrecy and concerned than are necessary to achieve its purpose; and f) reluctance to provide information even when ocially whether there are any less restrictive means of achieving the requested and noti ed. Coupled with a limited culture purpose of the limitation. and e ort to pursue these requests, most die a natural death. There is a limitation of ATI under Section 62 (4) This criteria is also inuenced by the South African constitution and this is discussed fully below. and constitutional court decisions, therefore the Zimbabwe courts are not without some persuasive reference points if there is need for such interpretation. It is essential however for such Limitation of Rights limitations to be tested on cases that relate to internet gover- There are few rights that are deemed non-derogable in the nance, data protection, privacy, e-ATI, e-commercial transac- Constitution. These are speci ed under section 86 (3), and tions, among others. The current legislative framework in include rights such as the right to human dignity, and the right Zimbabwe presents potential opportunities to seek the opinion not to be subjected to torture. The Constitution sets out the of the Constitutional Court, despite the fact that already those criteria for the limitations of rights and this is heavily informed laws that are inconsistent with the Constitution are invalid to the extent of their inconsistency.
38 E-Knowlege for Women in Southern Africa (EKOWISA), Zimbabwe. Retrieved from: http://www.giswatch.org/sites/default/ les/Zimbabwe.pdf (accessed 2 July 2015) 39 In the United States of America an estimated 91% of the population feels that consumers have lost control of information in the hands of the private sector, while 80% agree that they should be concerned about government actions in interfering with their private communications. See Mary Madden, Public Perceptions of Privacy and Security in the Post-Snowden Era Retrieved from: http://www.pewinternet.org/ les/2014/11/PI_PublicPerceptionsofPrivacy_111214.pdf (accessed 3 July 2015) 41 Section 62(4) provides that “Legislation must be enacted to give e ect to this right, but may restrict access to information in the interests of defence, public security or professional con dentiality, to the extent that the restriction is fair, reasonable, necessary and justi able in a democratic society based on openness, justice, human dignity, equality and freedom” 42 1995 (2) ZLR 1 (S), see also In re Munhumeso & Ors 1994 (1) ZLR 49 (S) at 64; and generally, CoT v CW (Pvt) Ltd 1989 (3) ZLR 361 (S) at 370F-372C; 1990 (2) SA 260 (ZS) at 265B-266D 43 Woods & Ors v Minister of Justice & Ors 1994 (2) ZLR 195 (S) at 199B-C: 44 Section 36 of the Constitution of South Africa, Limitation of rights. “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justi able in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including- a) the nature of the right; b) the importance of the purpose of the limitation; c) the nature and extent of the limitation; d) the relation between the limitation and its purpose; and e) less restrictive means to achieve the purpose. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. 45 Iain Currie & Johan de Waal The Bill of Rights Handbook 5 ed (2005) 46 Section 2 (1), provides that “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency”
9 Regulatory Legislation
There is a litany of laws that relate to or have some munications. It took court action for the government to connection to internet related usage and governance. deregulate and remove state monopoly under this sector Unfortunately, from the analysis of that list, several of the in terms of voice and data provision with the Retro t case laws are intended mainly for state protection, with the that birthed Econet. The striking down of the monopoly state placing itself at the centre of all regulation issues. then culminated in the unbundling of the Postal and The burden for compliance is also passed onto the private Telecommunications Corporation (PTC) into di erent units entities who are the main service providers for internet which include postal, mobile and landline units in prepa- related products and platforms. The bargaining power of ration of the competition. The Postal and Telecommunica- the service providers is questionable. This presents tions Act repealed the Postal and Telecommunication diculties going forward in particular as internet gover- Services Act [Chapter 12:02], the Posts and Telecommuni- nance is wide and expansive. Laws that are concerned cations Corporation Act [Chapter 12:03] and the Radio with cyber-crimes, fraud, internet law, and internet based Communication Services Act [Chapter 12:04]. The admin- commerce, consumer protection laws are limited and istration of the Act is placed under the Postal and insucient or lacking. These laws could potentially Telecommunications Regulatory Authority of Zimbabwe support the regulation of private persons over-reaching (POTRAZ) discussed further below. acts, to which the state has little control of, in the absence There are few minor and obvious limitations of this Act, of such laws. which would require some recti cation or expansion. The rst is on de nition in respect of internet service de ned to mean a telecommunication service consisting in the Postal and transmission by means of satellite, telecommunication Telecommunications Act lines or electricity transmission lines of sounds, visual By far the oldest act for regulation of postal and telecom- images or signals between computer terminals located
47 Retro t (PVT) Ltd v PTC and ANOR 1995 (2) ZLR 199 (S
10 within and outside Zimbabwe. This de nition potentially al and privacy spaces. The minister/responsible authori- limits its applicability to communication to computer ty has unfettered powers and is supposed to submit a list terminals, which might not cover other platforms which of warrants issued to the Attorney General annually. The are not necessarily computer terminals such as mobile Attorney General will give guidance on future warrants phones and closed networks. Admittedly, the Act does and ministerial discretion but does not address if there is provide for an expansive de nition of telecommunication any harm su ered or remedial action. The persons whose system. According to the Act, telecommunications system, communications have been intercepted is not aware. “means any system by means of which signs, signals, There is no judicial oversight in respect of the interception sounds, pictures or communications are conveyed by the and extensions of the warrants can be obtained before agency of electricity, magnetism or electromagnetism or the Administrative Court through an ex parte applica- by any agency of a like nature, whether with or without tions. Most email accounts of foreign domains or the aid of wires, and includes telephony and telegraphy websites now have a multiple login veri cation process, and any improvements and developments thereof. This including noti cation when e orts to log-in by unautho- should cover the use of wireless connectivity, mobile or rised persons is made. Access to most emails might cellular connectivity. The Act requires some review to actually be based on hacking rather than granting of consider its consistency with advancing technologies authority from Yahoo! or Google. There is no record of a globally and the relevance of a heavy state-centric successful request thus far by Zimbabwe authorities or regulation. The Supreme Court in Law Society of Zimba- recorded internet ltering. There have been uncon- bwe vs. Minister of Transport and Communications and rmed reports of institutions however blocking certain Another, found the provisions of the Postal and Telecom- content that might be deemed political on their emails munications Act Sections 98 and 103, which gives the and local ethernet. president powers to intercept mail, telephones, e-mail and any other form of communication unconstitutional. Service providers must ensure that their equipment is able to facilitate interception of information, installation of software, hardware, allow for simultaneous intercep- Interception of tion, call-relation upon termination, access or decryp- Communications Act tion. The ICA criminalises the non-compliance or This Interception of Communications Act (ICA) has a clear uncooperative service providers. Zimbabwe Internet intention which is intercepting of personal, private or such Service Providers Association (ZISPA) raised concerns with communications without limitation as to the form of the this Act, but there is no record indicating whether their communication, electronic, email, short message service, members then objected to installation of intercepting voice, video, or print in the form of letters, telegraphs or software and involvement in administering or executing search warrants. The recorded complaint was from the such other correspondence. The ICA provides a limited number of individuals that are authorised to apply for a access providers complaining of the costs for such equipment, which was probably passed down to the warrant of arrest, these individuals apply for the warrant consumer through increased rates or loss of unused or before the responsible minister. The assumption is that the Chief Secretary to the President might be the respon- “expiring” data. There are already indications of informa- sible person now for the ICA since there is no minister of tion, including personal, being intercepted (whether this state security or minister of state in the Presidency who is ocial or unocial there is no proof) which has ended has been mandated with implementation of the Act. To up in public media. This Act severely encroaches on assume that the President is involved in the actual communication rights and freedoms, through unregulat- issuance of the warrants will be stretching it far. The ed surveillance, potentially undermining the implementa- question is whether there is any prospects of oversight tion of just and fair internet governance regime. under this current enforcement regime? First of concern is the fact that the warrants are issued on grounds of belief Criminal Law Codification and not of reasonable suspicion that a criminal o ence is about to be committed or was committed, this is the Reform Act (Code) standard test for issuance of warrants that invade person- Following the codi cation of Zimbabwe’s criminal law,
48 A basic de nition of a computer terminal is an electronic or electromechanical hardware device that is used for entering data into, and displaying data from, a computer or a computing system. There is also an increase in terminal emulators such as computers, wi hotspots gadgets that can create multiple entry points for users to connect to the internet. 49 SC28/02 50 Grounds for interception include economic interests, public order, public safety, crime, see section 6, 51 Section 5 (1)a-d, chief of intelligence, police, commissioner of taxes, director general in President’s O ce 52 Ordinarily Minister of Transport and Communications. However during the inclusive government, this instrument was moved to from Information and Communications Technology to O ce of the President and Cabinet through Statutory Instrument 49 of 2010, renewed under Statutory Instrument 19 of 2014 53 Section 5 (g) 54 Section 19, section 6, Minister can issue any directive to service provider, 55 Section 9 (1)(i) provides that “all interceptions are implemented in such a manner that neither the interception target nor any other unauthorised person is aware of any changes made to ful l the warrant”. 56 Section 7 57 Kubatana Interception of Communications Bill Articles. Retrieved from: http://archive.kubatana.net/html/archive/archspecialentry_index.asp?spec_code=060426commdex§or=INFTEC (accessed 4 July 2015) archive/archspecialentry_index.asp?spec_code=060426commdex§or=INFTEC (accessed 4 July 2015) 58 As of 2009, Open Net Initiative recorded no incidents of internet ltering, See Internet Filtering in Zimbabwe Retrieved from: https://opennet.net/sites/opennet.net/ les/ONI_Zimbabwe_2009.pdf (accessed 4 July 2015) 59 Mainly government agencies, companies in which government is a major shareholder including banks, Lance Guma, Internet Service Providers block e-mails with political content 22 June 2006. Retrieved from: http://www.swradioafrica.com/News_archives/ les/2006/June/Thur%2022%20June/lg-zim-isp%27s-block-political-e-mails.html (accessed 4 July 2015) 60 Section 12 61 See 47 above, ISPs reported in 2010 that they required over $1million to get the required equipment, reports indicate that Econet, Telone and Telecontract complied with this request from government, 62 Daily News Worry Over Spy Agency’s Surveillance, August 2013 http://www.dailynews.co.zw/articles/2013/08/14/worry-over-spy-agency-s-surveillance (accessed 4 July 2015)
11 most criminal o ences or statutory o ences are purpose is to regulate and control the public exhibition of referenced and contained in the Code. Chapter 8 of the lms, the importation, production, dissemination and Code provides for computer related crimes. The Code has possession of undesirable or prohibited video and lm been used to arrest and prosecute individuals who would material, publications, pictures, statues and records and have expressed opinions, sentiments or posted materials the giving of public entertainments; to regulate theatres on internet platforms such as emails and Facebook. It and like places of public entertainment in the interests of contains the infamous insult law provisions whose safety. The CECA is still very much concerned with the constitutionality was disputed at the Bill’s conception physical bringing of materials into the country that is stages. These cases will be dealt with under breach of considered unsafe or undesirable and is arguably very rights. The Code provides under Section 163 that unau- primordial in a heavily digitised world. The CECA de nes thorised access to a computer or computer network is “import” to bring, or cause to be brought, into Zimbabwe. when one gains access to; or destroys or alters; or renders This seems to exclude electronic importation in the form meaningless, useless or ine ective; or copies or transfers; of access to internet, good examples of this include the or obstructs, intercepts, diverts, interrupts or interferes censorship of a movie Fifty Shades of Grey and a with the use of any data, programme or system which is documentary on Zimbabwe’s 2013 Constituion making held in a computer or computer network. Those shall be process, Democrats. Both of these can be easily streamed guilty of unauthorised access to or use of a computer or on the internet, and in the case of Fifty Shades of Grey, computer network. While authorised access under the ICA can be downloaded in its original format and now is covered, the diculty rests in proving that it was available in open markets for sale. There is not clearly authorised. The burden rests with the state in a criminal stated provisions in this Act or related provisions that trial, which burden might be dicult to discharge. It is a compels internet services providers, cyber cafés, to put standard practice that unlawfully obtained information is measures to restrict access to such sites. By comparison, not admissible in court, the same should apply to the equivalent South African law, Film and Publication Act evidence obtained through unauthorized interception or (FPA), requires all ISPs to register with the Board, and takes breach. It is a standard rule of evidence that unlawfully measures in preventing child pornography. This might obtained information is not admissable in court; the same be protested in Zimbabwe but is not materially di erent should apply to evidence obtained through unauthorised from the forced installation of interception software onto interception of communication, breach or access. ISPs under the ICA. In fact, the object for prevention of Evidence gathered under the guise of a warrant issued child pornography would be widely supported. The under the ICA potentially violates the principles of production of lms and publications is now not sophisti- accepted rules of evidence. This is because there is no cated as in yesteryear. Powerful personal computers, latest oversight mechanism or transparency in how the warrant handheld devices or smartphones have impressive is executed. The person whose communication is being capabilities for user created content which ends up being intercepted has no way of knowing that he or she is being viral. In Zimbabwe several incidents have been recorded monitored & such person has no way of appealing the and such footage (audio and video), produced. issuing of a warrant to monitor his or her communica- tions. In instances where the state has been put to The CECA de nes publication as “(a) any newspaper, book, strictest proof in these matters, the cases have not been periodical, pamphlet, poster, playing card, calendar or abandoned or dismissed before the courts. The CODE’s other printed matter; (b) any writing or typescript which provision will require revisiting in the future especially if has in any manner been duplicated or exhibited or made other acts that are directly relevant to the governance of available to the public or any section of the public . This the internet such as a detailed cyber-crimes and e-com- should be compared with the South African FPA which mercials transaction laws are put in place. includes publication as “any message or communication, including a visual presentation, placed on any distributed network but not con ned to the internet.” Due to the Censorship and Entertainment increased need to create clear guidelines and regulations Controls Act on internet freedoms, the South African Film and Publica- The Censorship and Entertainment Controls Act (CECA), tions Board issued draft policy guidelines for consultations.
63 Section 33 of the Code Bill and the CODE, See, Report of the Parliamentary Legal Committee on the Criminal Law Codi cation and Reform Bill [H.B.10, 2003]. Retrieved from: http://archive.kubatana.net/docs/legisl/clb_plc_041118.doc (accessed 5 July 2015), the Constitutional Court has quizzed these provisions before and acquitted individuals brought before it to answer to these charges, Retrieved from: http://www.news24.com/Africa/Zimbabwe/Court-acquits-4-on-Mugabe-insult-charges-20150130 (accessed 5 July 2015) 64 Section 162 (1) of the Code de nes a “computer” means a device or apparatus or series of devices which, by electronic, electromagnetic, electro-mechanical or other means, is capable of one or more of the following(a) receiving or absorbing data and instructions supplied to it; (b)processing data according to rules or instructions; (c) storing and additionally, or alternatively, reproducing data before or after processing the data; and includes (i) the devices or apparatus or series of devices commonly known as automatic telling machines, electronic cash registers and point of sale tills; and (ii) any other device or apparatus used for the electronic processing of monetary transactions. 65 Section 162 (1) of the Code de nes a “computer network” means the interconnection of one or more computers through (a)the use of satellite, microwave, terrestrial line or other communication media; or (b)computer terminals, or a complex consisting of two or more interconnected computers, whether or not the interconnection is continuously maintained 66 Section 8 of the ICA, reconcile that with s 3 of the ICA in respect of authorised interception of communications. 67 The Daily News, 50 Shades of Grey Banned in Zimbabwe http://www.dailynews.co.zw/articles/2015/02/21/50-shades-of-grey-banned-in-zim (accessed 5 July 2015) 68 Section 27A of the Films and Publications Act 69 Child abuses cases are on the increase, include child marriages which exposes children to such material, child pornography is also covered as a legitimate ground for limitation of internet rights under international law, see the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child Prostitution and child pornography, art. 3, para. 1(c). Zimbabwe rati ed February 2012 70 Retrieved from: http://www.timeslive.co.za/africa/2015/06/11/Nude-photos-topple-another-Miss-Zimbabwe (accessed 5 July 2015) 71 Section 2 of the Act 72 Section 1 (bb) of the Films and Publications Act 73 South Africa Draft Online Regulation Policy, Notice 185 of 2015, Government Gazette 4 March 2015, Retrieved from: http://www.fpb.org.za/pro le-fpb/legislation1/514-draft-online-regulation-policy-2014/ le (accessed 5 July 2015)
12 Censorship is contrary to enjoyment of fundamental material. Public bodies are those de ned as such by rights of expression, cultural artistic expression and statute, and hold “personal information bank” which is a academic freedoms all protected under the Constitution. collection of personal information that is organised or The proliferation of internet access simply means that this retrievable by the name of an individual or by an identify- Act is insucient for purposes of regulating that space ing number, symbol or other particular assigned to that and should not be concerned possibly with that. The individual and includes personal images. This de nition danger remains with the Board appointed under this Act should be considered for a law that relates to information extending or over stretching its mandate to include held by private persons. The state while having the rst censorship of websites or materials or documents that are obligation in collecting a person’s information on birth, available online. This would mean some level of coopera- has ceased to have a monopoly of that information after tion and engagement between the Censorship Board and birth. Arguably, the state’s details are likely to be far other regulatory bodies such as POTRAZ, ZMC. The Act ‘incomplete’ or ‘inadequate’ compared to private institu- also introduces under Section 33 a de nition of what is tions personal information banks for instance on address, depicted as indecent or obscene if; (i) it has the tendency marital status, employment records, commercial transac- to deprave or corrupt the minds of persons who are likely tions, loans etc. AIPPA seeks to achieve compulsory to be exposed to the e ect or inuence thereof or it is in registration of journalists. Compulsory statutory any way subversive of morality; or (ii) whether or not registration and accreditation is very much debated in the related to any sexual content, it unduly exploits horror, current context, and the limitation of journalist to the cruelty or violence, whether pictorial or other-wise; (b) current de nition means that several other classes of o ensive to public morals if it is likely to be outrageous or individuals who gather and disseminate information are disgustful to persons who are likely to read, hear or see it; excluded and the advent of Web 2.0, increasing the (c) harmful to public morals if it deals in an improper or user’s interface more with the web, from blogs, wikis, o ensive manner with criminal or immoral behaviour. This syndication, tagging, web engine optimization etc, defy limitation of rights will also have to con rm to the test laid the ordinary meaning of content development. out in the Constitution as provided under Section 86. Consumer Contracts Act Access to Information Contracts are usually covered by privity unless there are clauses that create an unfair advantage or burden to one and Protection of Privacy Act party over the other. A “consumer contract” is de ned as a The Access to Information and Protection of Privacy Act contract for the sale or supply of goods or services or (AIPPA) is mostly referenced law in respect of media both, in which the seller or supplier is dealing in the freedoms, free practice of journalism, access to informa- course of business and the purchaser or user is not. This tion held by public bodies, and statutory regulation of the would presumably cover aspects such as mobile and media. Some sections of AIPPA have been tested and internet service providers’ agreements with third party challenged before the courts. The AIPPA has a mix of users to their customers’. Because of increased competi- progressive salient provisions that seek to protect person- tion and need to maximise on services, consumers are al privacy. The Act needs further expansion to address vulnerable to anti-competition behaviour from service accessing information that is held by private bodies, providers and even false misleading and misrepresenta- correction of such records and deleting such. Further, the tion of services available. As currently framed, the CCA is Act limits records to electronic but does not include a insucient for purposes of addressing potential threats computer programme or any other mechanism that posed by expansion of technologies and internet usage, produces records. Access to e-information regime under critically undermining internet governance framework. In this law is insucient for purposes of handling or the absence of interest to adopt/produce a revised responding to the e-government strategy as contained in Consumer Protection Bill, there is need for inclusion of the ICT Policy of 2012. provisions on consumer protection in one of the major laws regulating electronic based transactions. Monitor- De nitions of mass media products include the total data ing of product quality in respect of internet usage or or part of the data of any electronically transmitted subscription is a very technical and complicated process.
74 Independent Journalist Association of Zimbabwe, Abel Mutsakani and Vincent Kahiya versus The Minister of State for Information and Publicity, the Media and Information Commission and the Attorney General – SC 136/02; Associated Newspapers of Zimbabwe (Pvt) Ltd versus Chief Superintendent Madzingo and the Commissioner of Police, Harare High Court 157-03; Associated Newspapers of Zimbabwe (Pvt) Ltd versus The Minister of State for Information and Publicity, the Media and Information Commission and the Attorney General. Supreme Court 20/03; Geo Nyarota and Lloyd Mudiwa versus the State 75 See provisions of s 25, 76 Journalist means a person who gathers, collects, edits or prepares news, stories, materials and information for a mass media service, whether as an employee of the service or as a freelancer 77 See Tawanda Hondora, Compulsory Accreditation of Journalists in Zimbabwe: An Opinion, June 17, 2002. Retrieved from: http://archive.kubatana.net/docs/media/020617accredmisazth.rtf. (accessed 6 July 2015) 78 Web 2.0 means second generation of the World Wide Web that is focused on the ability for people to collaborate and share information online, emphasize user-generated content, usability, and interoperability 79 Section 5 of the Act, particular in the unreasonable exchange of values and services, 80 See for South Africa’s Consumer Protection Act (2008), 81 Section 32 of the Botswana Electronic Communication and Transactions Act 2014. Postal and Telecommunications Act provides for consumer protection as one of the mandates of the POTRAZ but this is insu cient. Also there are POTRAZ Guidelines on Consumer Protection,
13 In Zimbabwe, mobile and internet users have raised Copyright Right and repeatedly the challenges of expensive internet bundles and unexplained disappearance of units (airtime leakage). Neighbouring Rights Act This was more pronounced on value added services The emergence of internet based publishing, reproduc- (VAS). Some service providers market their ability to tion and access to information has signi cantly eroded provide for instance $39/month of unlimited data, but in copyrights protection for producers of such information. fact would throttle the downloading speeds or the Literary products, audio, video, artistic, images, are now all volumes or not be able to o er that in all locations. In the online with limited enforcement of the laws and in some US, a mobile and internet service provider, AT & T, was in instances absence of sucient laws to protect producers 2015 found liable and subjected to nes of over $100 and reduce counterfeit, unauthorised reproduction and million for slowing down speeds of its ‘unlimited’ data even basic acknowledgment of source. The Copy Right by the Federal Communications Commission. In addition and Neighbouring Rights Act (CRNR Act) protects real to throttling of downloading speeds, some service rights in a person’s work and extends to public computer providers are giving preferential treatment to customers network. The “public computer network” means a group based on less volumes, “halting, slowing, or otherwise of interlinked computers to which the public or a section tampering with the transfer of any data” for reasons of the public have access, whether on payment of a fee or other than dealing with spam or congestion. The presence otherwise, and includes the computer network commonly of such freedoms is net neutrality. The threat to net known as the Internet. The CRNR Act restricts the repro- neutrality stems from corporates and service providers, duction or dissemination of copyright material on the compelling governments to act to protect the consumers. internet without the exclusive approval of the copyright Unfortunately, as currently framed, Zimbabwe’s CCA is owner (Section 20). Broadcasting on the internet is inadequate to handle the evolving space of cyber prohibited (Section 21). The ability for the tribunals under consumers, internet based contracts, and electronic the CRNR Act and courts to enforce these provisions and transactions. Zimbabwe is literally a sitting duck for the copyright owners is very limited. Recommendations internet scams and fraud, and remedies for consumers for reform of the laws has been made, these include remain limited. incorporation of changes brought about by information technology and the operationalisation of Intellectual Property Tribunal Act.
82 Econet is one such that faced a deluge of complaints on social media accounts forcing them to reconsider some of their costing practices and provision of third party services. The Telegraph, Econet separates VAS billing after customer complaints, 24 June 2015. Retrieved from: https://www.telegeogra- phy.com/products/commsupdate/articles/2015/06/24/econet-separates-vas-billing-after-customer-complaints/ (accessed 6 July 2015). There have been complaints that such practices for Econet are contrary to competition and violate anti-trust laws with creation of monopolies, see The Herald, Econet in Anti Competition Behaviour. Retrieved from: http://www.herald.co.zw/econet-in-anti-competition-behaviour/ (accessed 6 July 2015) 83 The Federal Communications Commission plans to ne AT&T Mobility, LLC $100,000,000 for misleading its customers about unlimited mobile data plans. The FCC’s investigation alleges that AT&T severely slowed down the data speeds for customers with unlimited data plans and that the company failed to adequately notify its customers that they could receive speeds slower than the normal network speeds AT&T advertised. 17 June 2015. Retrieved from: https://www.fcc.gov/document/att-mobility-faces-100m- ne-misleading-consumers (accessed 6 June 2015) 84 American Civil Liberties Union. Retrieved from: https://www.aclu.org/feature/what-net-neutrality (accessed 6 July 2015). The United States of America Federal Communications Commission produced rules on net neutrality which include; No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices; No Throttling: broadband providers may not impair or degrade lawful Internet tra c on the basis of content, applications, services, or non-harmful devices and No Paid Prioritization: broadband providers may not favor some lawful Internet tra c over other lawful tra c in exchange for consideration of any kind—in other words, no "fast lanes." This rule also bans ISPs from prioritizing content and services of their a liates. These rules were adopted 12 June 2015. Retrieved from: https://www.fcc.gov/openinternet (accessed 6 July 2015) 85 In 2013, KPMG Fraud Barometer survey and report, Zimbabwe, Nigeria, Kenya, and South Africa account for 74 percent of all fraud type cases reported in the continent. Probably the prevalent use pirated software be most Zimbabweans could be another reason why it is ranked amongst the top “baddest” in Africa, a case which could be also driven by lack of or clear cut online payment system. Retrieved from: http://www.technomag.co.zw/2013/02/07/zimbabwe-involved-in-74-of-fraud-cases/#sthash.Vu4LlL6w.dpuf (accessed 6 July 2015) 86 National Copyright Strategy for Zimbabwe 2014, Retrieved from: http://nhimbe.org/sites/default/ les/policies/Copyright%20Strategy%20for%20Zimbabwe%20at%2008%2001%2015%20Edited%20%282%29.pdf (accessed 18 July 2015)
14 Regulatory and Oversight Bodies
Cabinet Committee on Scientific experts designated by the agency. It will among other functions of intercepting and monitoring, give technical Research, Technology advice to authorised persons, and service providers on the interception of communications in terms of ICA. This Development and Applications mandate of the MICC is wide and equally unchecked as The Committee was presented at the WSIS 2005 confer- the enabling provisions of the ICA. There is no indication ence as part of Zimbabwe’s e orts to increase policy of where it is located, or who actually constitutes the implementation that encourages research and technology group technical of experts. Service providers would development. The Committee is a subset of the Cabinet probably know of its location and would possibly be one presumably chaired by the Minister responsible for of the locations considered a designated and protected technology. There is lack of public knowledge on its role place. The technical experts are believed to be experi- other than being mentioned in the draft ICT Policy 2012. enced or trained in various skills and might be aliated It would appear that this Committee has a limited role with or part of the military school of intelligence. other than leading government e orts at executive level to advance the cause for ideal or conducive conditions for research and development. Postal and Telecommunications Regulatory Authority of Zimbabwe Monitoring of Interception of (POTRAZ) Communications Centre Established in terms of Section 3 of the PTA and The ICA establishes a Monitoring of Interception of expansive mandate under Section 4 of the PTA. The Communications Centre (MICC) which functions as the mandate of POTRAZ is wide and inclusive of many aspects “sole facility through which authorised interceptions shall that would be best placed to have other actors supervise be e ected”. In terms of the ICA the monitoring centre or oversee to avoid conict and have clear separation of shall be manned, controlled and operated by technical roles. The POTRAZ board is responsible for oversight and
87 This could be minister of information communications and technology postal and courier services or minister of higher and tertiary education science and technology. 88 Draft ICT Policy 2012, section 4 Status of ICTs in Zimbabwe available from Government Internet Service Provider. Retrieved from: http://www.gisp.gov.zw/index.php/downloads/category/5-ict-policies?download=8:draft-ict-policy-2012 (accessed 7 July 2015)89 Zimbabwe Human Rights NGO Forum, Privacy International, Research Development Centre, Communication and Political Intelligence Surveillance on Human Rights Defenders in Zimbabwe, 2013-2014 page 46. The Robert Mugabe School of Intelligence was established through a $98 million loan from China and intends to train courses such as cryptologic linguists, signals intelligence analysts, human intelligence collectors, military intelligence systems maintainers and integrators, common ground station analysts, intelligence analyst and signals analysts 90 Section 4 (1) Subject to this Act, the functions of the Authority shall be (a) to ensure the provision of su cient domestic and international telecommunication and postal services throughout Zimbabwe on such terms and conditions as the Authority may x; (b) without prejudice to the generality of paragraph (a), to ensure that any person by whom any telecommunication or postal service falls to be provided is able to provide those services at rates consistent with the provision of an e cient and continuous service and the necessity of maintaining independent nancial viability; (c) to promote the development of postal and telecommunication systems and services in accordance with practicable recognised international standards and public demand; (d) to exercise licensing and regulatory functions in respect of postal and telecommunication systems and services in Zimbabwe, including the establishment of standards and codes relating to equipment attached to telecommunication systems; (e) to exercise licensing and regulatory functions in respect of the allocation and use of satellite orbits and the radio frequency spectrum in Zimbabwe for all purposes, including the establishment of standards and codes relating to any matter in connection therewith; (f) to secure that reasonable demands for postal and telecommunication services are satis ed; (g) to promote the interests of consumers, purchasers and other users, in respect of the quality and variety of postal and telecommunication services provided and telecommunication apparatus supplied; (h) to maintain and promote e ective competition between persons engaged in the provision of postal and telecommunication services and any activities connected therewith; (i) to monitor tari s charged by cellular telecommunication, postal and telecommunication licensees with a view to eliminating unfair business practices among such licensees; (j) to promote and encourage the expansion of postal and telecommunication services; (k) to further the advancement of technology relating to postal and telecommunication systems and services; (l) to represent Zimbabwe internationally in matters relating to postal and telecommunication services; 15 management of the POTRAZ and is constituted of not less Broadcasting Authority of than ve (5) but not more than seven (7) individuals with experience in law and telecommunications. The Zimbabwe appointment criteria for individuals to the Board should Established under the Broadcasting Services Act (BSA) the ideally be expanded to cater for other much specialised mandate of the Broadcasting Authority of Zimbabwe areas such as consumer protection, which is part of (BAZ) is equally wide under Section 3. Of note is its POTRAZ’s mandate. POTRAZ has issued some guidelines responsibility in “the advancement of appropriate on consumer protection on their websites including a technology relating to broadcasting systems and services.” complaint form. Some areas covered by the guidelines Broadcasting services means any service which delivers include rights of consumers, online safety, child online television or radio programmes to persons having protection, tari s, and service agreements among equipment appropriate for receiving that service, whether others. POTRAZ commissioned a consumer survey the delivery is e ected by means of or uses the radio research in 2013, whose ndings remain instructive for frequency spectrum, cable, optical bre, satellite or any the proper functioning of the telecommunications other means or a combination of those means. BAZ is industry and provision of satisfactory services to also responsible for oversight on data-casting and web consumers. There is an equal need for POTRAZ to rebrand casting services, this e ectively creates synergies with itself as a neutral and impartial broker. Funds collected POTRAZ or possible confusion on roles and from the universal fund that is levied on service providers responsibilities of these institutions. In terms of the BSA, should also be ploughed back into communities through POTRAZ is responsible for allocation of all frequencies for civic education programmes on consumer rights and the purposes of broadcasting services to BAZ, and the awareness in collaboration with other institutions such as BAZ shall manage and allocate the frequencies for all Consumer Council of Zimbabwe. broadcasting systems or services in Zimbabwe. To expand the reach of broadcasts, radio stations are webcasting or live streaming on the internet, including some stations Zimbabwe Media Commission that have been prohibited or denied registration or By the time of preparing this paper the Zimbabwe Media allocation of frequencies in Zimbabwe. Webcasting space Commission (ZMC) was yet to be constituted following is beyond the regulators unless if they block access to the lapsing of the mandate of the previous Commission. such websites for individuals in Zimbabwe with the active Previous commissions under the Constitution and also involvement of the ISPs. under AIPPA (Media Information Commission) were not highly regarded due to partisan appointments, selective application of the law and closure of the operating space Consumer Council of Zimbabwe for media practitioners, journalists and media houses. The The Consumer Council of Zimbabwe (CCZ) is a voluntary mandate of ZMC is enshrined in terms of Section 249 of organisation that has recognition in statute through the the Constitution. The ZMC is supposed to encourage Consumer Contracts Act which recommends the relevant the adoption of new technology in the media and in the minister to consult on regulations and reforms. The CCZ dissemination of information. This role will need further will require some level of statutory powers including clari cation in terms of the actual steps ZMC needs to formation of Consumer Protection Commission under a undertake to encourage adoption of new technology. revised consumer protection law. In the absence of such Considering that its mandate constitutes an oversight, other regulatory bodies such as POTRAZ that have a clear monitoring, and regulatory duties, the ZMC will have to mandate to promote interest of consumers, should be propose how best to encourage use of technology. Media allowed to recommend individuals to the Minister practitioners subscribe to the voluntary self-regulation responsible for POTRAZ to appoint individuals with such under the Voluntary Media Council of Zimbabwe (VMCZ). expertise onto the board. CCZ should also increase its This might also be an institution that looks at internet work with institutions such as POTRAZ in the provision of governance and how to best introduce accountability public education and awareness programmes in light of measures for internet based media products. The ZMC will the increasing technological advancements. have to develop capacity to attend to such cases or complaints that relate to internet based media products or publications.
91 Section 4 (1) of the Botswana Telecommunications Act, establishment, constitution and membership of the Telecommunications Authority constitutes ve members appointed by the Minister with quali cations, expertise or experience in a) information and communication technology, b) law; c) consumer protection; d) nancial accounting; e) economics; or f) general business management. 92 POTRAZ Consumer Protection Guidelines. Retrieved from: https://www.potraz.gov.zw/images/Reports/Consumer%20protection%20guidelines%20Zimbabwe%20 nal%20August%202013%201.pdf (accessed 7 July 2015) 93 POTRAZ, Consumer Survey and Satisfaction Report Telecommunications, Postal and Couriers Service in Zimbabwe 2013. Retrieved from: https://www.potraz.gov.zw/images/ les/reports/FINAL_CONSUMER_SATISFACTION_REPORT.pdf (accessed 7 July 2015) 94 249 Functions of Zimbabwe Media Commission (1) The Zimbabwe Media Commission has the following functions— (a) to uphold, promote and develop freedom of the media; (b) to promote and enforce good practices and ethics in the media; (c) to monitor broadcasting in the public interest and, in particular, to ensure fairness and diversity of views broadly representing Zimbabwean society; (d) to encourage the formulation of codes of conduct for persons employed in the media and, where no such code exists, to formulate and enforce one; (e) to receive and consider complaints from the public and, where appropriate, to take action against journalists and other persons employed in the media or broadcasting who are found to have §breached any law or any code of conduct applicable to them; (f) to ensure that the people of Zimbabwe have fair and wide access to information; (g) to encourage the use and development of all the o cially recognised languages of Zimbabwe; (h) to encourage the adoption of new technology in the media and in the dissemination of information; (i) to promote fair competition and diversity in the media; and (j) to conduct research into issues relating to freedom of the press and of expression, and in that regard to promote reforms in the law.95 Section 2 of BSA 96 Section 2, an information service that delivers information, whether in the form of data, text, speeches, images or any other form, to persons having equipment appropriate for receiving that information, where the delivery of the service uses the broadcasting service bands; 97 Section 2, computer-mediated broadcasting service. 16 Zimbabwe Internet Service Technology, Postal and Courier Services, and facilitated by the Postal and Telecommunications Regulatory Authority Providers Association of Zimbabwe (POTRAZ), the Zimbabwe Internet Gover- With a membership of about 28 as of 2013, ZISPA is the nance Forum (ZIGF), was established through a consulta- private sector association of ISPs in Zimbabwe. Internet tive workshop with stakeholders. The workshop estab- Service Providers in Zimbabwe are organised under an lished a 15 member interim Multi-Stakeholder Coordinat- independent and voluntary association named Zimbabwe ing Team (MCT) comprising of three (3) members nomi- Internet Service Providers Association (ZISPA). Current nated from ve (5) clusters. These were drawn from ZISPA members include Africa Online, Africom, Arachnid Government, Technical (service providers), Academic, Design, Cyberplex Africa, Design@7, Ecoweb, E-World, Private Sector, and Civil Society. POTRAZ shall continue to Earth Internet, Global Internet, Goldnet, Harvey Micro provide Secretariat services until ZIGF is fully established. Systems (HMS), MANGO Email Service, MWEB Zimbabwe, Establishment of ZIGF, responds to the 2003 and 2005. The Myzimhost, Reliant Computers, Roach Web Design, Taurai United Nations World Summit on the Information Society Zimbabwe, Telco Internet, Utande Internet Services, (WSIS) call for the creation of the global Internet Gover- Venekera Works Technologies, Webdev, Web Solutions, nance Forum, the "IGF" and further establishment of Yo!Africa, Zambezi Net, ZARNet, Zimbabwe Internet Mail, Continental, Regional and Country Internet Governance Zimbabwe Online (ZOL), Zimbabwe Business Network Fora. The rst global IGF was held in 2006 in Athens. Since (Zimbiz), Zimlink. then, global IGFs have been held in Brazil, India, Egypt, Lithuania, Kenya, Azerbaijan, Indonesia and Turkey. In 2015, the next global IGF returned to Brazil in João Pessoa Zimbabwe Internet (10-13 November 2015). Governance Forum On June 17, 2015, Zimbabwe established an Internet To that end, Africa formally launched African Internet Governance Forum, becoming 5th out of 15 SADC Governance Forum (AIGF) in Nairobi, during the global countries, after South Africa, Mozambique, Tanzania and Internet Governance Forum in 2011. Five regional initia- Malawi. tives – West Africa Internet Governance Forum (WAIGF), – East Africa Internet Governance Forum (EAIGF), – Forum The Internet Governance Forum (IGF) serves to bring de Gouvernance de l'Internet en Afrique Centrale people together from various stakeholder groups as (FGI-CA), – North Africa Internet Governance Forum equals, in discussions on public policy issues relating to (NAIGF) – and Southern Africa Internet Governance Forum the Internet. While there is no negotiated outcome, the (SAIGF) were set up. IGF informs and inspires those with policy-making power in both the public and private sectors. At their annual The Southern Africa Internet Governance Forum was meeting delegates discuss, exchange information and inaugurated in September 2011 with the overall objective share good practices with each other. The IGF facilitates a of developing a coordinated and coherent approach to common understanding of how to maximise Internet dealing with Internet Governance issues in the Southern opportunities and address risks and challenges that arise. Africa Development Community (SADC). Hosted by the Ministry of Information Communication
99 Zimbabwe Internet Service Providers Association (ZISPA). Retrieved from http://zispa.co.zw/members.html (accessed July 1, 2015) 100 The Internet Society. Retrieved from http://www.internetsociety.org/igf?gclid=Cj0KEQjwz6KtBRDwgq-LsKjMk9kBEiQAuaxWUl8K2UmclO4T6q9K0fLl6k6JnHlBWjlynUrf3NPCEB8aArBP8P8HAQ (accessed July 16, 2015) 101 The Internet Governance Forum. Retrieved from http://www.intgovforum.org/cms/aboutigf (accessed July 16, 2015)
17 Incidents of Breach of Rights
In November 2003, the rst case of widespread concerns Mavhudzi. on the monitoring of emails was recorded. Although the actual court documents and cases are not publicly State vs. Edmund Kudzayi available, the case in which 14 people were arrested and Another (Baba Jukwa) following an email chain circulated in their workplace is In June 2014, Edmund Kudzayi and his brother Philip on public record. Following this case, other cases report- Kudzayi were arrested on a raft of charges including ed included individuals arrested for making posts on sedition for allegedly operating a shadowy character social media (Facebook) and whatsapp messages. The pro le on Facebook, called Baba Jukwa. This pro le arrests for social media users such as whatsapp are carried information and posts that the State perceived to trigged not only by interception but through sending be inciting violence and treasonous. The complexity of the such to one person who then reports to the police or is a matter arose when during his trial Edmund indicated and security agent. There are reports of political parties also claimed that he worked with government ministers requesting their members to shut down social media Jonathan Moyo, Savior Kasukuwere and the ministry of pages and groups. A teenage Facebook user Gumisai defence to expose the real Baba Jukwa and that he was Manduwa was arrested in January 2014 for allegedly only operating another counter pro le, Amai Jukwa. insulting President Robert Mugabe after he posted on his However, there was insistence from the state that Edmund Facebook page that Mugabe “had died and was being had been recruited to in ltrate the ruling party and state preserved in a freezer”. The state has and continues to structures, considering that he was then employed as face challenges in procuring the evidence required or editor for the state-controlled, The Sunday Mail. The necessary to prove cases beyond any reasonable doubt in allegations include that Edmund used a Google account respect of alleged o ences committed on social media to set up the Facebook page. However, Google records internet based platforms, hence most cases su er a do not indicate any ocial request for such information spectacular collapse despite the hype. Due to absence of from Zimbabwe. The accused insisted on the state monitoring of such digital freedoms violations there is providing the proof. The state subsequently discharged limited tracking and documentation of the cases, with the the accused persons. exception of those that attract national interest such as State vs. Edmund Kudzayi and Another, and State vs. Vikas
102 http://www.balancingact-africa.com/news/en/issue-no-185/web-and-mobile-data/zimbabwean-govt-arre/en (accessed 15 July 2015) 103 Zimbabwe Elections, Man Fined for Insulting Chinotimba. Retrieved from: http://www.zimbabweelection.com/2015/06/25/man- ned-for-insulting-chinotimba-on-whatsapp/ (accessed 15 July 2015) 104 NewsDay, Whatsapp Lands Woman in Trouble. Retrieved from: https://www.newsday.co.zw/2013/01/04/whatsapp-lands-woman-in-trouble/ (accessed 15 July 2015) 105 Retrieved from: http://www.news24.com/Africa/Zimbabwe/MDC-orders-WhatsApp-group-shutdown-20150207 (accessed 15 July 2015), 106 Retrieved from: http://www.thestandard.co.zw/2014/01/19/mugabe-death-lands-teenager-trouble/ (accessed 15 July 2015) 107 http://www.dailynews.co.zw/articles/2014/06/27/factbox-sunday-mail-editor-edmund-kudzayi (accessed 15 July 2015) 108 No reports were received from Zimbabwe on Google Transparency Report. www.google.com/transparencyreport (accessed 15 July 2015) 109 No reports were received from Zimbabwe on the Facebook Transparency Report https://govtrequests.facebook.com/ (accessed 15 July 2015)
18 State vs. Vikas Mavhudzi the message from the phone and how it was to be used in court. The court dismissed the case at the close of the In March 2011, Vikas Mavhudzi was arrested following state case as no evidence was available to prove that a posts he allegedly made on Facebook. From the state crime had been committed. There were several constitu- papers, it was apparent that the police were acting on a tional rights issues in this case that could have been tip o , from a supposedly anonymous caller. The state canvassed had the state case managed to proceed with prosecution papers accused Mavhudzi of having a the prosecution. The Interception of Communications Act, message on his phone which stated “I am overwhelmed for example requires that all telecommunication service (don’t) know what to say Mr. PM (Prime Minister), what providers should have mechanisms to store all data that happened in Egypt is sending shockwaves to all dictators passes through their service and should be able to submit around the world. No weapon but unity of purpose, worth the data upon lawful demand by state representatives. emulating hey”. The comment was allegedly made on a The question that remains is whether the liability of Facebook page for the then Prime Minister Morgan intermediaries such as Internet Service Providers (ISPs) or Tsvangirai. Mavhudzi was charged with subverting a mobile operators as they provide connectivity to a constitutionally elected government under Section 22 (2) content carrier or platform, is warranted. of the Code. The major dicult for the state was to provide evidence on how they had managed to retrieve
110 Chiedza Simbo, Dewa Mavhinga, A closer legal look at the Baba Jukwa case http://www.newzimbabwe.com/opinion-17488-A+closer+legal+look+at+Baba+Jukwa+case/opinion.aspx (accessed 5 July 2015)
19 International and Regional Law and Practices
ICCPR, General Comments and Special Rapporteur on Freedom of Expression
International Covenant on Civil and Political Rights (ICCPR) ltering of content ; criminalising of freedom of expres- has several articles that relate to internet issues, from sion on the net, intermediary liability which has also privacy, expression, dignity, inter alia. These provisions exposed several service providers from criminal or state have also been subjected to some level of discussion and sanctions if they fail to comply with certain directives. In debate through UN General Comments as well as various Zimbabwe similar provisions would be comparable to the special rapporteurs particularly on freedom of expression. threat of sanctioning service providers that fail to install The UN Rapportuer has underscored that “access to the software for interception of communications under ICA. Internet has two dimensions: access to online content, Private actors and companies, however, are equally not without any restrictions except in a few limited cases transparent about decisions they make and reasons for permitted under international human rights law; and the such in particular in respect of take down notices. The availability of the necessary infrastructure and informa- UN Rapportuer also raised concerns on the absence of tion communication technologies, such as cables, protection mechanisms for privacy and data protection. modems, computers and software, to access the Internet This prompted the UN to consider the appointment of a in the rst place. While many countries have recorded special rapporteur on the right to privacy. major expansion of internet through mobile or cable platforms, the cost has been inhibitive and constitutes one of the barriers in addition to infrastructure which in UN Special Rapporteur on some instances is owned individually by companies hence Right to Privacy increases the costs of transacting. Zimbabwe is currently The rst UN Rapporteur on Privacy was appointed on grappling with the harmonisation of telecommunications 1 July 2015 pursuant to UN Human Rights Council infrastructure among major service providers. Other resolution of 24 March 2015 on the right to privacy in a than the issues of cost, access and infrastructure, the UN digital age. The mandate is fairly expansive but very Rapportuer has also raised concerns with blocking or
111 Full title is Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression 112 See UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression A/HRC/17/27, 16 May 2011 113 Retrieved from: http://www.potraz.gov.zw/index.php/categorylinks/103-potraz-embarks-on-an-infrastructure-sharing-drive (accessed 15 July 2015),http://www.techzim.co.zw/2015/07/infrastructure-sharing-purely-an-emotional-debate/ (accessed 15 July 2015), http://www.herald.co.zw/econet-rapped-for-hypocrisy/ (accessed 15 July 2015) 114 Harvard University Survey of Government Internet Filtering Practices Indicates Increasing Internet Censorship First Year of Global Survey Examines 41 Countries by Political, Social and National Security Filtering May 18, 2007. Retrieved from: http://opennet.net/sites/opennet.net/ les/ONI_Zimbabwe_2009.pdf (accessed 15 July 2015). See also Freedom House, Freedom on the Net Zimbabwe (2012-2013). Retrieved from: https://freedomhouse.org/sites/default/ les/re- sources/FOTN%202013_Zimbabwe.pdf (accessed 15 July 2015) But there were reports of closed networks blocking of certain websites especially in government o ces and institutions, see for instance Clapperton Mavhunga, The Glass Fortress: Zimbabwe’s Cyber-Guerrilla Warfare, Retrieved from: http://concernedafricascholars.org/docs/acasbulletin80-4.pdf (accessed 15 July 2015). 115 Article 19, Internet Intermediaries: Dilemma of Liability, Article 19. Retrieved from: https://www.article19.org/data/ les/Intermediaries_ENGLISH.pdf (accessed 15 July 2015) 116 Zimbabwe government has protested over several internet based statements and adverts but has not been able to get such removed from some websites including YouTube, NANDOs advert on President Mugabe still is available. Retrieved from: https://www.you- tube.com/watch?v=PYnL5oUePM8 (accessed 15 July 2015), http://www.telegraph.co.uk/news/worldnews/africaandindianocean/zimbabwe/8929536/Nandos-drops-last-dictator-advert-following-Zimbabwe-protest.html (accessed 15 July 2015). 117 Human Rights Committee, general comment No. 16 on article 17 of the International Covenant on Civil and Political Rights, para. 10. 118 UN Human Rights Council. Retrieved from: http://www.ohchr.org/Documents/HRBodies/SP/CallApplications/HRC29/Letter_from_President_on_mandate_holders_appointment_HRC29_01072015.pdf (accessed 6 July 2015)
20 indicative of the concerns of rapid technological advanc- cation Technologies, Johannesburg, South Africa (2009); es, and the potential threats it poses to privacy posed. Abidjan Declaration (2012) and the Addis Ababa Declara- The mandate terms include; to gather relevant informa- tion (2012) on the Harmonisation of Cyber Legislation in tion, including on international and national frameworks, Africa. The AUC Cyber Security has not entered into force national practices and experience, study trends, develop- as the requisite numbers are still outstanding. The AUC ments and challenges in relation to the right to privacy Cyber Security has an expansion de nition of terms that and to make recommendations to ensure its promotion will be very useful for state parties to consider inclusion as and protection, including in connection with the they revise their laws. In part one, the AUC Cyber Security challenges arising from new technologies; identify covers, electronic transactions, electronic contracts, and possible obstacles to the promotion and protection of the fast replacing or easing the pace of transacting business right to privacy, identify, exchange and promote princi- in Africa due to rapid technology expansion, yet there are ples and best practices at the national, regional and limited or uncomprehensive safeguards to transacting international levels, submit proposals and recommenda- parties. Part two of the AUC Cyber Security covers in tions to the Human Rights Council in that regard, includ- depth the issues of personal data protection. This is very ing with a view to particular challenges arising in the positive considering that the dangers of personal data digital age. The mandate also includes raising awareness leakages are increasing with the growth in use of web, concerning the importance of promoting and protecting internet, cloud and other storage facilities, yet most the right to privacy, including with a view to particular governments are ill-prepared for such leakages including challenges arising in the digital age, as well as concerning the most technologically advanced nations. The AUC the importance of providing individuals whose right to Cyber Security covers the six principles on personal data privacy have violated with access to e ective remedy, namely: consent and legitimacy; lawfulness and fairness; consistent with international human rights obligations; purpose relevance and storage; accuracy; transparency, and to integrate a gender perspective throughout the con dentiality and security. Data rights subjects are also work of the mandate; to report on alleged violations, entitled to rights to information of the detail contained, wherever they may occur, of the right to privacy, as set out the right to object, right to recti cation of errors and in article 12 of the Universal Declaration of Human Rights erasure. Part three, covers extensively the cyber security and Article 17 of the ICCPR, including in connection with and cyber-crime prevention, national strategy and critical the challenges arising from new technologies. As a new information infrastructure (CII) aspects. In combating mandate under the UN special mechanisms, there is need cyber-crime the AUC Cyber Security recognises the role for di erent civil society actors, consumers, users, service and inuence of public private partnerships, and the providers and governments to put this mechanism to use importance of legal frameworks for mutual assistance on for purposes of not only highlighting the absence of cyber crimes. Part four provides for safeguards mecha- protection but required mechanisms to protect personal nisms that the AUC Cyber Security “shall not be interpret- privacy and data. ed in a manner that is inconsistent with the relevant principles of international law, including international customary law.” As a framework, the AUC Cyber Security cannot be faulted. It will remain a yard stick for assessing African Union Convention the various laws that Zimbabwe will adopt in her e orts to Cyber Security and Personal close the many legal lacunas that exist. Data Protection in Africa After years of advocacy work by various civil society African Charter on Human and groups, the African Union (AU) adopted the Convention Peoples Rights and Associated on the Establishment of a Credible Legal Framework for Cyber Security and Personal Data Security in Africa (AUC Declarations Cyber Security) at its 23rd Ordinary Session in Malabo, The African Charter on Human and Peoples Rights Equatorial Guinea (June 2014). Prior to adoption of this (ACHPR) is the main human rights instrument on the instrument, the AU had held several meetings accompa- African continent. The ACHPR provides for protection of nied by declarations restating their intention to develop a freedom of expression (Article 9), equal protection of the common legislation framework. These declarations law (Article 3), and fair trial rights (Article 7) among other include; the Oliver Tambo Declaration Conference of rights de ned as peoples’ rights. The ACHPR emphasises; African Ministers in charge of Information and Communi-
119 UN Human Rights Council Resolution on Right to Privacy in a Digital Age. Retrieved from: http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_28_L27.doc (accessed 6 July 2015) 120 Retrieved from: http://au.int/en/cyberlegislation (accessed 18 July 2015) 121 The African Commission on Human and Peoples Rights adopted a model law on access to information which also extends to access to electronic information. Retrieved from: http://www.achpr.org/ les/instruments/access-information/ach- pr_instr_model_law_access_to_information_2012_eng.pdf (accessed 18 August 2015) 122 Communication 379/09 Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT)v Sudan; Communications 105/93, 128/94, 130/94 and 152/96 Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v Nigeria
21 “Freedom of expression and information , including the right to Tunis Commitment and Tunis seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of Agenda for the Information Soci- communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of ety (2005) democracy”. The Tunis Commitment and Agenda are a follow up to the Geneva Declaration and Geneva Plan of Action (2003) The ACHPR and civil society have led the adoption of which sowed the seeds for internet governance, closing declarations for purposes of creating a framework that the divide in digital gap between nations, nancial guides the enforcement and protection of expression mechanisms for funding the expansion of the internet rights and mediums for such which includes the internet. among others. As established in the Geneva Plan of While not binding and deemed soft law, the standards are Action, and restated in the Tunis Commitment and instrumental in creating shared values, these include Agenda, “ the Internet has evolved into a global facility Windhoek Declaration on Promoting an Independent and available to the public and its governance should consti- Pluralistic African Press (1991) , the African Charter on tute a core issue of the Information Society agenda”. Broadcasting (2001) , the Declaration of Principles on Further, “the international management of the Internet Freedom of Expression in Africa (2002) , and the African should be multilateral, transparent and democratic, with Platform on Access to Information Declaration of 2011 . the full involvement of governments, the private sector, Following the holding of the AIGF meeting in Kenya, the and civil society and international organisations. It should African Declaration on Internet Rights and Freedoms ensure an equitable distribution of resources, facilitate (ADIRF) (2013) was adopted. The ADIRF contains several access for all and ensure a stable and secure functioning progressive articles that guides e ective law making, of the Internet, taking into account multilingualism”. governance of the internet focusing on 12 principles The setting up of internet governance forum (IGF) should namely: openness; internet access and a ordability; be consistent with the provisions of this declaration. There freedom of expression; right to information; freedom of are however di erences in countries in respect of appreci- assembly and association on the internet; cultural and ation, inclusion and transparency in respect of internet linguistic diversity; right to development; privacy; security governance leading to over representation and domi- on the internet; marginalised groups; right to due process; nance of government. Zimbabwe has an opportunity to and democratic internet governance framework. address this as the ZIGF is still in the formative stages.
123 http://www.unesco.org/webworld/fed/temp/communication_democracy/windhoek.htm (accessed 18 July 2015) 124 http://portal.unesco.org/ci/en/ les/5628/10343523830african_charter.pdf/african%2Bcharter.pdf (accessed 18 July 2015) 125 Article 19, Declaration of Principles on Freedom of Expression in Africa, 22 October 2002. Retrieved from: http://www.refworld.org/docid/4753d3a40.html (accessed 18 July 2015) 126 http://www.africanplatform.org/campaign/apai-declaration/ (accessed 18 July 2015) 127 African Declaration on Internet Rights and Freedoms. Retrieved from: http://africaninternetrights.org/declaration-container/declaration/ (accessed 18 July 2015) 128 Tunis Commitment and Agenda, paragraph 29 129 Supra para 29
22 Recommendations and Conclusions
Recommendations in this report are predominantly consumers, service providers, and mobile network focused on government in respect of law making, but this operators (MNO), ISPs, and ASPs. law making should as much as possible include and involve civil and private sectors. The heavy legislative Personal and Privacy approach in the absence of stakeholder involvement or Data/Personal Data Protection Bill acceptance can produce laws that are illegitimate. The invasion of personal spaces through technology is of Considering the genesis of the internet as outside govern- prime concern to users in particular. Information gather- ment frameworks, private sector is critical if not at the ing, storage and usage by third parties is increasing with centre of most of the fundamental tenets of internet the rise of remote storage, cloud facilities and online ling freedoms and governance. States are increasingly weak, systems. This Bill should take into account the constitution unable and constrained in regulating or governing this provisions on right to privacy, international standards, space without su ocating business and create limited guidance from various internet forum resolutions and access, a ordability, reach and competition. The overall declarations. Regulatory agencies such as POTRAZ as part recommendation relates to the need to explore one stop of their consumer awareness exercise should focus on regulator for all communications related issues, from privacy rights and clauses in the various user agreements. broadcasting, internet and spectrum allocation. This will CCZ should consider in the various consumer protection allow the development of an ecient institution as there bills or policies how to safeguard consumers’ private is potential for inconsistencies, confusion by having details and information. The recent data leakages and multiple actors involved. Zimbabwe should consider hacking of data hitherto perceived to be secure jurisdic- having a Telecommunications Authority with a clearer tions should evidence the inadequacy of the current legal mandate, seen as fair, transparent and an e ective regime. Because of the state tendencies to encroach in regulator suciently protected for the political exigencies, private spaces, the regulatory authority should be which might lead to partisan or partial behaviour towards suciently able to stop or interdict such tendencies. There
130 The Competition and Tari Commission under the Competition Act appears unable to confront and resolve some of the issues prevailing in the ICT and internet sector.
23 are lessons from Canada, Ireland, and other developed statutory commission. The ministry responsible for this Bill informational economies. The current regulator is collect- should also be compelled in terms of the Bill to provide ing signi cant resources from the licensed operators regular reports on the law's use to an all-party parliamen- which contributes towards the universal service fund. tary committee on the application of the Bill and the cases The usage of this fund needs greater transparency as it under investigation.Consumer associations will also need can easily be used for other non-related purposes. to increase their e orts to assist citizens in familiarisation with such laws and what is protected. Information Communication Consumer Protection Bill Technology Bill A revised consumer protection bill is required that speaks An ICT Bill is required for purposes of clearly de ning what to the various rights of consumers such as right to simple Zimbabwe is lacking in terms of policy and statutory and plain language on consumer contracts , right to regulation. This ICT Bill has been proposed by di erent choose, right to redress, right to be informed on choices ministers over the past few years with limited movement. and stopping of automated spamming on internet, There is likely to be limited traction in this regard and privacy measures such as dealing with caches if not dealt therefore some sustained advocacy might be required. with under the Electronic Transactions Bill. The Bill should Civil society demands for such reforms should include also allow for setting up of consumer associations that are how a clear framework can allow for business, economic speci c to sectors such as internet and mobile users to growth, increased information reach and diversity. allow for more sustained engagement on their needs and Freedom of expression and information might not be the concerns. The Bill should also domesticate international state’s interest, but will be an unintended consequence of standards and rights of consumers. There is need to a permissive environment. have holistic protection of internet users in respect of fraudulent marketing that involves get rich quick Cyber Crimes Bill schemes, chain emails, cure for illness over the net and Current laws have proved ine ective in deterring and these are likely to increase in Zimbabwe, as technology prosecuting actual criminality through ICT. Unfortunately replaces ordinary commercial transactions that have a most sections of the current Code have been targeting physical veri cation ability. mainly perceived critics of the state. While the introduc- tion of the Cyber Crimes Bill in the country is welcome, Electronic Commerce Bill consideration should be made in the revision of many of The increase in use of mobile and web-based nancial the de nitions in the Bill to increase speci city and services, begs the question of the suciency of current remove vagueness and ambiguity. Further, new or laws. Electronic transactions are currently regulated by a additional de nitions should be considered especially for mix of communication and banking laws which were terms that are likely to cause confusion such as sexually designed for ‘brick and mortar’ retail banking. Incentives explicit conduct, computer crimes, cyber crimes, a thing, for e-commerce need to be considered in particular on device, among others. As currently structured, some taxes, value added taxes to increase interest and uptake. provisions of the Bill run counter to the Constitution, The wide array of services also provided through mobile especially the Bill of Rights. In the event that this Bill is services will require some level of intermediary liability enacted as it stands, several possible actions remain for clarity in laws and practices. The increasing shift to individuals, citizens, Internet society, and civil society to internet banking and online transactions through the use consider approaching the Constitutional Court for of web, Point of Sales (POS), and emergence of Mobile interpretation and judicial restraint. Further, individuals Point of Sales (MPOS), increases exposure and risk of who are subject of the intrusions envisaged under this Bill transaction interception. The widely used magnetic stripe have the right to be informed of any investigations card does not provide insurance cover in the event of loss against them, coupled with judicial oversight, and of value through unauthorised access. The risk of unau-
131 Section 73 and 74 of the Postal and Telecommunications Act, 2% of annual revenue levied on all licensed operators is paid. 132 Many internet service providers, software campaigns are revising their user agreements to make them simple and plain, recently Microsoft. Retrieved from: http://www.windowscentral.com/microsoft-will-update-and-simp- lify-its-privacy-and-service-agreements-aug-1 (accessed 6 July 2015), 133 The rapid expansion of internet and internet mobile users signals a commensurate increase in disputes between service provider and consumers, consumers and third parties, 134 vSee draft alternative Consumer Protection Bill, produced by the Consumer Council of Zimbabwe, which seeks to incorporate some of the provisions of the United Nations Guidelines on Consumer Protection into law.
24 thorised access to Personal Identi cation Numbers (PINs) Civil Society Internet Rights and passwords is high, especially on websites without proprietary Secure Socket Layers (SSL). In such instances, Watch/Forum services providers, including retail stores, should meet The complexity of the internet has limited those who are secure requirements to protect consumers. keen to understand its operation and functions to a few very technically focused. This is unfortunate as it has led to the internet rights being more focused on security of National ICT Policy Implementation the state more than on users, private sectors and every A revised ICT Policy had been tabled and discussed in other concerned person. The internet is more of a univer- Cabinet during the inclusive government period. There sal resource with threats and dangers posed to every appears to be no interest in rolling this policy out despite other user (government and citizen) and private sector as having progressive guidance for the ICT sector and some the progenitors of the internet. Civil society should of the internet related aspects for governance. The consider stepping up their oversight on internet related government has and considers itself to be moving toward rights, freedom of expression, association, protection of e-governance. However there is no visible evidence privacy, digital identity among others. There is limited towards, including information availability on the most scholarship on the internet in Zimbabwe possibly explain- basic and rudimentary government services. The transi- ing the technical nature of the subject or exclusionary tion to e-government will remain stuck if there is no politics. There is little evidence of documentation of deliberate e ort to move processes faster. A few govern- breaches of rights of expression, privacy and personal ment departments have automated their processes. data. Despite the work conducted by private sector and civil society in crafting a policy, currently the country is using a This paper will not purport to have exhausted the issues 2005 ICT policy which is insucient. Issues such as an around internet governance. Zimbabwe is starting the open government, open data initiative, and internet conversation and playing catch up with many other universal access are not covered in the 2005 policy. jurisdictions which have already advanced in this area. Conversations at the global level are far advanced now Zimbabwe Internet Governance with Internet Corporation for Assigned Names and Numbers (ICANN) exploration of transition stewardship, Forum powerful countries such as the US will e ectively continue The launch of ZIGF is a positive step. However there to have considerable inuence in these processes. This appears to be concerns already on legitimacy, inclusivity paper does not focus on these issues as they are potential- and ownership. Civil society should clearly propose ly deep waters for Zimbabwe as the internal frameworks alternatives to strengthening this platform and inclusion are suciently weak and focus should not be diverted to of other actors not represented. Provision of research in global internet politics and governance before addressing respect of the roles, functions and mandate of the ZIGF the domestic framework. will assist in measuring its e ectiveness and ecacy. If legitimately constituted ZIGF can play a convening role and address the multi-faceted interests of stakeholders.
135 Registrar of Deaths, Births, Citizens and Passports seems to be moving a bit faster than others in particular on processing of births, deaths and passports. This could be a result of government policy to allow the department of use some of the revenue collected.
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