Ignorantia juris non excusat is simply translated Ignorance of the law is not an excuse,
These days, its so common to join discussions on the legalities of state spying, and just how the government can or cannot eaves drop over Whatsapp messages, and it came as shocker to learn what the law actually says about interception of communication.
While the general population has exchanged nothing but mere opinion, it is shocking to millions of Zimbabwe who are ignorant of the current law which actually gives state arms the right to openly intercept any information should they deem it necessary.
By Toneo T Rutsito.
While the new ICT bill has already been presented to cabinet, .the current ICT law which we are using is nothing but an old piece of legislation, which came into effect in 9 years ago, and was gazetted on Friday 3rd August, 2007 as the Act No. 6 of 2007, Chapter 11:20, which gives arms of the state exclusive power to spy, intercept or tape into any form of communication.
The Zimbabwean law enforcing agencies, are empowered to intercept any information through a legal channel and these are but only limited to:
a) the Chief of Defence Intelligence or his or her nominee;
(b) the Director-General of the President’s department responsible for national security or his or her nominee;
(c) the Commissioner of the Zimbabwe Republic Police or his or her nominee;
(d) the Commissioner-General of the Zimbabwe Revenue Authority or his or her nominee.
Efforts to try and investigate the actual establishment and whereabouts of this center came to a naught, though we suspect it could be now housed under the gigantic IT center just close to the Munhumutapa building at the government offices.
The same law is also empowfered to order the service provider to strictly comply with such technical requirements as may be specified by the agency to facilitate the interception; (d) specify the apparatus and other means that are to be used for identifying the communication that is to be intercepted
Establishment of monitoring centre
(1) There shall be established a centre to be known as Monitoring of Interception of Communications Centre (MICC). [Chapter 11:20] Interception of Communications Act No. 6/2007 — 5 — (2) The monitoring centre shall be the sole facility through which authorised interceptions shall be effected.
(3) The monitoring centre shall be manned, controlled and operated by technical experts designated by the agency.
(4) The monitoring centre shall give technical advice to— (a) authorised persons; and (b) to service providers; on the interception of communications in terms of this Act.
Authorised persons to apply for warrant of interception
(1) An application for the lawful interception of any communication may be made by the following persons— (a) the Chief of Defence Intelligence or his or her nominee; (b) the Director-General of the President’s department responsible for national security or his or her nominee; (c) the Commissioner of the Zimbabwe Republic Police or his or her nominee; (d) the Commissioner-General of the Zimbabwe Revenue Authority or his or her nominee.
(2) An application in terms of subsection
(1) shall be made by an authorised person to the Minister for the Minister to issue a warrant for the interception of any communication. (3) An application in terms of subsection (1) shall contain the following information— (a) the person or customer, if known, whose communication is required to be intercepted; and
(b) the service provider to whom the direction to intercept the communication must be addressed, if applicable; and
(c) the nature and location of the facilities from which, or the place at which, the communication is to be intercepted, if known; and
(d) full particulars of all the facts and circumstances alleged by the applicant in support of his or her application; and
(e) whether other investigative procedures have been applied and have failed to produce the required evidence, or the reason why other investigative procedures appear to be unlikely to succeed if applied, or whether they involve undue risk to the safety of members of the public or to those wishing to obtain the required evidence: Provided that this paragraph shall not apply to an application for the issuing of a warrant in respect of a serious offence;
(f) the period for which the warrant is required to be issued; and
(g) the basis for believing that communication relating to the ground on which the application is made will be obtained through the interception; and [Chapter 11:20] Interception of Communications Act No. 6/2007 — 6 —
(h) any other information which may be required by the Minister for the Minister to make an appropriate decision.
6 Issue of warrant
(1) A warrant shall be issued by the Minister to an authorised person referred to in section 5 if there are reasonable grounds for the Minister to believe that—
(a) any of the following offences has been or is being or will probably be committed
(i) a serious offence by an organised criminal group; or
(ii) an offence referred to in the Third Schedule or in paragraph 1, 2, 3, 4, 5, 6, 7 or 8 of the Ninth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07];
(b) the gathering of information concerning an actual threat to national security or to any compelling national economic interest is necessary; or
(c) the gathering of information concerning a potential threat to public safety or national security is necessary.
(2) The Minister may, if he or she is of the opinion that the circumstances so require
(a) upon an application being made in terms of this Part, issue instead of a warrant any directive to a service provider not involving any interception or monitoring of communications; or
(b) after a warrant has been issued, amend or revoke the warrant
Evidence obtained by unlawful interception not admissible in criminal proceedings
9 Assistance by service providers
(1) A service provider must ensure that—
(a) its postal or telecommunications systems are technically capable of supporting lawful
interceptions at all times in accordance with section 12;
(b) it installs hardware and software facilities and devices to enable interception of
communications at all times or when so required, as the case may be;
(c) its services are capable of rendering real time and full time monitoring facilities for the
interception of communications;
(d) all call-related information is provided in real-time or as soon as possible upon call
(e) it provides one or more interfaces from which the intercepted communication shall be
transmitted to the monitoring centre;
(f) intercepted communications are transmitted to the monitoring centre via fixed or
switched connections, as may be specified by the agency;
(g) it provides access to all interception subjects operating temporarily or permanently
within their communications systems, and, where the interception subject may be
[Chapter 11:20] Interception of Communications Act No. 6/2007
— 8 —
using features to divert calls to other service providers or terminal equipment, access to
such other providers or equipment;
(h) it provides, where necessary, the capacity to implement a number of simultaneous
interceptions in order—
(i) to allow monitoring by more than one authorised person;
(ii) to safeguard the identities of monitoring agents and ensure the confidentiality
of the investigations;
(i) 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 fulfil the warrant.
(2) A service provider who fails to give assistance in terms of this section shall be guilty of
an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not
exceeding three years or to both such fine and such imprisonment.
10 Duties of telecommunication service provider in relation to
(1) Any person who is aggrieved by a warrant, a directive referred to in section 6(2)(a) or a directive or order issued to or by the Authority, an authorised person or the agency may appeal to the Administrative Court within one month of being notified or becoming aware of it, as the case may be. (2) The Administrative Court may in any appeal confirm, vary or set aside the warrant, directive or order appealed against and may make such order as to costs as it thinks fit. (3) For the avoidance of doubt, the Administrative Court is an “adjudicating authority” for the purposes of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] when considering any appeal in terms of this section.