Opinion / Columnist
Computer Crime and Cyber Crime Bill - an unjust Law in the making
10 Aug 2016 at 14:34hrs | Views
"An unjust law is no law at all" this is a quote from Saint Augustine, an early Christian theologian whose writings influenced the development of politics and law. This quote pretty much sums up the spirit to which the Computer Crime and Cyber Crime Bill being proposed by the Zimbabwe government is in its current format. This bill seeks to empower the Zimbabwe police to 'intercept private communications, search and confiscate electronic gadgets' used in what they deem to be 'criminal activity'. The proposed law seeks to impose a five year mandatory sentence to would be 'offenders' who fail to legally use their phones, laptops and desktop computers. The proposed bill goes on further to say the violation of the proposed law and the attendant repercussions will reach out to offenders "globally" in as long as they are Zimbabweans. These 'Zimbabweans' will be extradited back to Zimbabwe under existing extradition laws, namely , The Extradition Act (Chapter 9.08) Part of the draft bill reads : if —
"(a) committed in connection with or in furtherance of the commission or attempted commission of the crime of insurgency, banditry, sabotage or terrorism, theft, unauthorised borrowing or use of property, extortion, fraud, forgery, malicious damage to property, damaging, destroying or prejudicing the safe operation of an aircraft, concealing, disguising or enjoying the proceeds of the unlawful dealing in dangerous drugs, corruptly using false data or defeating or obstructing the course of justice; or "(b) the computer, computer network, data, programme or system is owned by the State, a law enforcement agency, the Defence Forces, the Prison Service, a statutory corporation or a local or like authority; or (c) the crime occasions considerable material prejudice to the owner of the computer, computer network, data, programme or system; or (d) the crime disrupts or interferes with an essential service. Police, according to the Bill, are required to apply to a magistrate for permission to search and seize electronic gadgets and to intercept private communications to prove criminal cases. "(1) If a magistrate is satisfied on the basis of an application by a police officer, supported by an affidavit, that there are reasonable grounds to suspect or believe that the content of electronic communications is reasonably required for the purposes of a criminal investigation, the magistrate may: a) order an Internet service provider whose service is available in Zimbabwe through application of technical means to collect or record or to permit or assist competent authorities with the collection or recording of content data associated with specified communications transmitted by means of a computer system; or (b) authorise a police officer to collect or record that data through application of technical means." The Bill also says: "Any person, who unlawfully and intentionally generates, possesses and distributes an electronic communication with the intent to coerce, intimidate, harass, threaten, bully or cause emotional distress, degrade, humiliate or demean the person of another person, using a computer system or information system shall be guilty of an offence and liable, on conviction, to a fine not exceeding level 10 or imprisonment not exceeding five years or both."
An addition to AIPPA and POSA
Any reasonable person reading this draft bill is immediately gobsmacked by its content and its apparent intention to instil fear and control on a citizenry already living on the edge after being pummelled by the police for so long. This bill attempts to take away the only avenue left for Zimbabwe's citizens have for free expression. This bill now waits in line to join other statutory provisions like the Access to Information and Protection of Privacy Act (AIPPA) and The Public Order and Security Act (POSA) both enacted in 2002. The former to "oversee" how the print and electronic media operate in Zimbabwe. Since its enactment it has banned foreign news organisations from reporting in Zimbabwe and indeed some of Zimbabwe's newspapers have been obliterated. And the later gives greater control powers to the police and the act has helped Mugabe consolidate power by limiting the freedom of Association amongst citizens. In fact it is a requirement for any political or civic formation to seek police approval before holding any public meetings. So, Zimbabwe it is not rocket science to figure out where the government is going with this new proposed draft Computer Crime and Cyber Crime bill. One may be forgiven for seeing the parallels between North Korea and the fast developing trend in Zimbabwe were the government interfere to a point of being in the citizen's personal lives.
When a law seeks to take away an individual or a group's freedom, it causes harm or basically just causes chaos; it is the opposite effect of what a law is put in place to do. In his 1963 letter from Birmingham city prison, Dr Martin Luther King lamented the effect of unjust laws. He speaks of the difference between a just law and an unjust law. "A just law is a man-made code that squares up with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law" St Thomas Aquinas a respected Italian Philosopher and theologian out it more succinctly, he says, "An unjust law is a human law that that is not rooted in eternal law and natural law. Any law that uplifts human personality is a just law. Any law that degrades human personality is unjust".
So in essence an unjust law is morally wrong and can be disobeyed. Protesting is in essence disobedience against unjust laws. The purpose of protesting is mainly to publicise an unjust law or a just cause; to appeal to the conscience of the public; to force negotiation with recalcitrant public officials to "clog the machine" with political prisoners; to get into court where one can challenge the constitutionality of a law; to exculpate oneself, or to put an end to one's personal complicity in the injustice which flows from obedience to unjust law. While protesting in a broad sense is as old as the Hebrew midwives' defiance of Pharaoh the social media age brings it to another level.
Panic, Power retention at all costs
The Zimbabwe government is going to great lengths to try and market this new cyber bill as an enhancement of our laws by aligning it with the control of pornographic images and videos and terror as part of computer crimes being curtailed. But Zimbabweans are not naïve; the devil is in the detail. The appearance of a law may make it look just, but will be unjust in its application. The Public Order and Security Act (POSA) give powers to the police to control gatherings and issue permits for the same. But we all know that government protests are never accompanied by this requirement whilst opposition and civic groups are put through this audacious process and in most instances they are refused and they end up seeking relief from the courts. A law becomes unjust when those who are from the ruling party are never compelled to do the same. So the intentions of the Computer Crime and Cyber Crime bill are clear. Recent events have been instructive. Social media is the new political battleground. The Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA) are now archaic. They do not offer sufficient control anymore. This is what this Cyber bill is about, control through instilling fear amongst the citizens of Zimbabwe. Here is the tragedy if the bill should it ever become law. Social media is not domiciled in Zimbabwe. Questions abound, how you seek to prosecute a person who is holding on their gadget a forwarded message. Furthermore, does Mugabe still think that after 36 years of persecution and repression Zimbabwean society has remained stagnant. Has the government of Zimbabwe factored in the possibility that most of its citizens are now citizens of other countries together with their children who by the way are now leading the onslaught for a democratic dispensation in their country of origin? Does the Zimbabwe government have the resources to pour into policing personal gadgets and information flow in the context of Zimbabwe? The government cannot even pay the current public servant. Can POTRAZ do this?
The Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ)
The Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) was established in terms of the Postal and Telecommunications Act [Chapter 12:05].Part of Section 4 defines its functions as
(a) To ensure the provision of the sufficient domestic and international telecommunication and postal services throughout Zimbabwe on such terms and conditions as the Authority may see fit.(b) Without prejudice to the generality of paragraph (a), to ensure that any person by whom any telecommunications or postal services falls to be provide is able to provide these services at rates consistent with the provision of an efficient and continuous service and the necessity of maintaining independent financial 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; etc.
They term is a "regulatory functions", but Zimbabweans are not oblivious to the fact that POTRAZ has recently used its sweeping powers to order mobile service providers to suspend the various popular promotions they had on offer. Despite official denial by the same, whatsApp and Facebook activity has dropped sharply in the last few weeks. This part of the broader attempt by the Mugabe government to control social media.
ECONET/ TELECEL/ NETONE: Mobile Service Providers in Zimbabwe
Mobile service providers are governed by both national law and International law. The reason for this is because mobile service is now global. Mobile service providers are also mandated under national and international law to respect the privacy of the service users. If a government makes a demand for information that is deemed "unreasonable", the service provider can refuse to provide it and fall back on international provisions. Precedents abound: The Apple boss Tim Cook refused to cooperate with the American government's request to unlock an iPhone belonging to Syed Farook, one of the alleged shooters in the San Bernardino attack. The service provider argued this was a defence of civil liberties despite the fact that a federal court in Riverside, California, granted the justice department the order. Apple refused to obey an unjust law. Without the consent of the service provider it is not possible for the government to read ones messages as WhatsApp messages have a secured end to end encryption, which means WhatsApp or third parties, cannot read your messages without physically getting hold of your phone.
Computer Crime and Cyber Crime bill fallacy
The long and short of this proposed draft bill, is that it will be impossible to police and enforce should it be railroaded into law. Firstly international law will not compliment laws in domestic jurisdictions that are on the face of it unjust. So an attempts to invoke the Extradition based on this type of law will be an own goal. It will simply reinforce the dictatorial nature of Mugabe's government. Secondly this proposed unjust law will be resisted by all right thinking progressive Zimbabweans globally who want to take Zimbabwe forward and not backwards into the Stone Age. The internet is not restricted to the borders of Zimbabwe, but a global phenomenon, hence it cannot suffer violence and intimidation. Free expression is one of the cornerstones of the internet era. Zimbabweans are not stuck to the local service providers to access social media. In fact most in Zimbabwe are now using foreign sim cards (South African, Zambian and UK etc. etc.). Free expression in the internet era is exactly that- free. An attempt to legislate against free internet expression will be unjust and will fall flat on its face. Simple as.
Lloyd Msipa is a Lawyer by profession and can be contacted at email@example.com. He writes in his personal capacity.
Source - Lloyd Msipa
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