Raid on newsroom justified, says Nyambirai

The legal counsel for Econet Wireless' banking subsidiary Steward Bank, Tawanda Nyambirai, says Thursday's raid on online news agency, The Source, was justified.

Nyambirai, together with Steward Bank's acting chief executive officer, Lance Mambondiani, addressed a chaotic Press conference on the complex matter in Harare yesterday - that pits the right of the media to report on issues against the right of financial institutions to secure their customers' sensitive banking information.

Giving a historical account of the matter, Nyambirai said private and confidential information relating to Steward Bank and its clients, as well as confidential processes that the bank undertakes in evaluating its clients' proposals had been stolen some time last year.

"Some of the information landed in the hands of very responsible journalists who gave us a right of reply and, after considering our response, concluded that the information was of a private and confidential nature and that its publication was not in the public interest and would constitute an unwarranted and malicious invasion of the right to privacy of not only the bank, but also of the bank's clients.

"The banker-client relationship is a relationship uberrimae fidei, or in the utmost of good faith. When a client visits his bank to transact, no matter who they are, whether loved by the public, or vilified, they must do so with the knowledge that the information they share with the bank is safe and protected from unwarranted public disclosure without their consent.

"Even regulatory authorities hold such a right to be sacred and inviolable to the extent that any disclosure legislation such as the Money Laundering legislation, the Criminal Law (Codification Reform) Act and the Criminal Procedure and Evidence Act provide very clear safeguards where disclosure is necessary for purposes of investigating crime.

"Failure to protect this important right can undermine the very foundations of our banking system and can condemn us to the dark ages where people shun banks and keep their money hidden under their beds, or resort to informal business transactions," Nyambirai said.

He said some of the stolen confidential information had been published by The Source without giving Steward Bank the right of reply.

"Because the Econet Wireless group respects journalists and holds freedom of expression to be paramount, Mr Douglas Mboweni (the CEO of Econet Zimbabwe) and his team communicated with the editor of The Source and made a kind request for the withdrawal of the stolen information that was published without affording Steward Bank the right of reply.

"The request was ignored.  It was only then that an application was made to the courts.  Our client did not seek to take the law into its own hands. It went to court. The search and seizure that has taken place is a court-sanctioned search and censure conducted in the presence of officers of the court.

"True, the Constitution of Zimbabwe grants freedom of expression and of the media. But that freedom is not absolute. It is not a license to theft and unwarranted invasion of privacy," Nyambirai added.

He said the same section that granted freedom of expression and of the media, Section 61 of the Constitution, specifically provided under subsection 5, that freedom of expression and freedom of the media excluded "malicious injury to a person's reputation or dignity" and "malicious or unwarranted breach of a person's right to privacy".

"The right to privacy is itself protected under Section 57 of the Constitution of Zimbabwe from encroachment not only by the State, but also by other private citizens. In the new Constitutional dispensation, we have very clear access to information legal procedures set out in the Constitution.

"Journalists no longer have to rely on theft of information or the unwarranted violation of other citizens' rights in order to access information needed in the public interest or to protect, or enforce rights. The hallmark of good journalism has ceased to be the ability to access underground unethical or criminal networks for provision of information.

"The Constitution has justiciable access to information provisions that can prove to be very handy tools to a modern and progressive journalist who has respect for the rights of others and of the law," Nyambirai said.

"What happened here must be condemned by all progressive Zimbabweans. It was not only the commission of theft of information belonging to a bank. It was an attack on the very foundation on which the banker-client relationship is legally anchored.

"It was also a violation of Section 163 (1) of the Criminal Law (Codification Reform) Act which makes it a crime to copy or transfer any data held in a computer without the consent of the owner.

"It was a violation of the rights to privacy protected by Section 57 of the Constitution of Zimbabwe. It was a violation of the protection against malicious and unwarranted invasion of a person's privacy protected by Section 61 of the Constitution of Zimbabwe.

"We know who the thieves are. We know them that have received these proceeds of crime and used them, and seek to use them to effect an unwarranted invasion of the privacy of other citizens. We are on their trail. We shall make them accountable for their unlawful actions through lawful means", Nyambirai added.