The authoritarian roots of Zim’s surveillance laws

By Allen Munoriyarwa | Jan. 12, 2024

Vice-President Kembo Mohadi

Zimbabwe’s hardening authoritarianism has always manifested in many ways. Since the fall of Robert Mugabe, the ruling party, Zanu PF, has shown to everyone that is it not only hopelessly incapable of reforming the state, but that it has no interest in such an endeavour.

The stubborn resistance to reform the economy, politics institutions, and society of Zimbabwe by Zanu PF is not new. It is very characteristic of the ruling party.

Since independence in 1980, the ruling party has always been unwilling to respect any processes – be it social economic, legal institutional political that do not grant it absolute power.

The ongoing decimation of the opposition party, the Citizens’ Coalition for Change (CCC) by ZANU PF proxies has nothing to do with democracy but has everything to do with the ruling party’s quest for total power in a context where its hegemony is waning, and increasingly being challenged by other forces.

This backsliding of democracy in Zimbabwe is enabled by state institutions that have for all intent and purposes, been captured into the service of the ruling party. It is difficult to see the Zimbabwean judiciary as a dispenser of justice. The judiciary has been weaponized by Zanu PF to push the party’s totalitarian agenda.

There is, however, a lesser explored dimension to Zimbabwe’s hardening authoritarianism, its laws and legislative practices. One of these laws is the 2007 Interception of Communications Act (ICA) [Chapter 11:04] which was enacted in 2007 and is still to be aligned with the current 2013 Constitution of Zimbabwe. States all over the world have been passing legislations aimed at either fence human rights off from the encroachment by surveillance forces, or in some context, deepen surveillance of citizens.

In both cases, the justification has been security of the state and its citizens. The same has been the case with Zimbabwe. The same justification has been given by the ruling regime in Zimbabwe.

For instance, under the Act, surveillance can only be instituted under section 6 in relation to serious offences. Section 6(1) which is particularly offensive to human rights and democracy in Zimbabwe, provides that: a warrant shall be issued by the Minister to an authorised person …if there are reasonable grounds for the Minister to believe that any of the following offences has been or is being or will probably be committed (i) a serious offence by an organised criminal group; … the gathering of information concerning an actual threat to national security or to any compelling national economic interest is necessary.

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The gathering of information concerning a potential threat to public safety or national security becomes necessary. These clauses of the ICA, hide an authoritarian streak that well-meaning Zimbabweans should be warry of. But, before I delve into this authoritarian streak, it is important to historicise law-making in Zimbabwe under Zanu PF.

For Zanu PF, laws have an important function in the broader scheme of power. In sober and democratic contexts, a piece of legislation proposed by those in power should be used to further a public interest need. But Zimbabwe is neither democratic nor politically sober.

Over the years, beside ICA, the ruling regime has increased state security legislations because these state security legislations, more than any other laws, are part of the regime’s menu of manipulation.

They serve two critical roles in Zanu PF’s quest for total power. First, they can be weaponised against political opposition- and Zanu PF has many such groups and individuals who fit this bill.

These include lawyers especially those on the forefront of defending human rights; journalists, the private press who have consistently defended what remains as critical spaces of articulation in Zimbabwe’s ever-shrinking public sphere.

Second, these laws can be used to stymie internal opponents within

ZANU PF itself. The party is infamous for its own violent outbursts factionalism. The coup that removed Mugabe was one such culmination of the party’s violent factionalism. What makes ICA wrong? Ordinary people, and even those connected to power should not take ICA’s clauses lightly. They are a threat to democracy and privacy. ICA is authoritarian in two ways; what it says, and what it does not say. For instance, the Act is silent about whether lawyers and journalists will be surveilled.

There arise circumstances where the targets of surveillance are either a practising journalist or lawyer. ICA is silent about how such surveillance would be carried out considering that these two communities- lawyers and journalists have rights that are guaranteed and protected under the constitution and common law.

During the colonial regime, identical laws existed, that protected minority rule. In that period, just as it is now in now, under the status quo, the judiciary was an important institution that protected the rule of a few.

The current notorious politicisation and weaponisation of the Zimbabwean judiciary are steps further into Zanu PF’s scheme of institutional capture and total hegemony over the Zimbabwean polity, which, hitherto, has been opposed by activists and citizens through the ballot. In the history of Zimbabwe, journalists and lawyers, especially those who are fiercely independent of the state and ruling party, have always faced systematic persecution, and in politicised judiciary, they have also faced persecution.

This is because journalists are central, and exert influence in the broader dissemination of information. One thing that authoritarian regimes, like Zimbabwe’s second republic dislike the most, is the free flow of information. Information can empower people to act contrary to regime’s expectations.

So, what the public consumes as information, should be carefully managed. Lawyers, on the other hand, are at the centre of protecting the rule of law which in turn.

Make them influential in the democratisation process. This is why independent lawyers in Zimbabwe always face the wrath of the regime, just like independent journalists.

If you add up this lack of protection for lawyers and journalists in ICA, with the Patriotic Act recently passed by parliament, one can easily see a concoction of an authoritarian legal framework that is carefully managed to entrench the vested parochial interests of a beleaguered ruling party. For journalists, ICA is silent on journalistic privilege, especially with regards to the privilege of confidential sources. Journalists are already periled by a law which does not make specific provisions for their work rights and which does not fence off certain practices from violations. Investigative journalism is the most endangered under the ICA.

Sources can be subjected to surveillance, making it hard to break stories.

There is, however, a logic to this deliberate exposure of journalism and journalists by the law. The ruling Zanu PF party has a violently adversarial relationship with the private media. This is the media that has always exposed the party’s corruption and maladministration. This is the media that makes every attempt to hold Zanu PF to account- and accountability something the party passionately dislikes. For lawyers, the lawyers-client privilege relationship is jeopardised by dragnet laws that provides no exception for critical communities. The ICA assert no obligation on the state and government to protect. What this means, therefore is that journalists are not shielded from the dragnet surveillance practices of the state. Furthermore, the fact that the ICA provides no procedure to notify subjects of interception and surveillance post-facto is in itself a serios loophole of the act. The authorities can, cate blanche, walk surreptitiously in the dark to sniff out people’s private lives.

Sections 11(7)(b), 15 (2) of the Act does not prescribe the proper procedure to be followed when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing data obtained from interceptions.

Importantly, the powers vested under section 5 to a prejudiced minister in government to receive and issue warrants, instead of an independent and impartial judicial authority blurs the separation of powers envisaged under section 3 of the Constitution.

The Act, in particular sections 6 and section 6 are inconsistent with the constitution and invalid to the extent that they fail to address expressly the circumstances where a subject of surveillance is either a practising journalist or a lawyer.

This failure is compounded by the unlawful provision that allows for unconstitutional bulk surveillance under section 9 of the Act. The bulk surveillance is an automatic dragnet that incorporates journalists and lawyers alike. The ICA does not provide adequate safeguards to protect subjects with a legitimate right to protect sources of information, particularly practising journalists and lawyers having privileged communication with their clients. Key terms in the Act, such as ‘monitoring’ are not clearly defined creating room for abuse, especially in relation to the collection and analysis of metadata.

In a democratic system, or at least a system that aims to be democratic, ICA could have been repealed or amended. If the tope courts of the Zimbabwean judiciary had been independent, this is one law which could have been struck down for dangerous imperilling democracy. It is now an acknowledged fact that a certain measure of surveillance has to be accepted as a trade-off for security.

There are four major yardsticks that have been adopted to align surveillance with competing rights. First, judicial oversight is necessary. Surveillance/ Interception requests by the state should, liberal democratic contexts, be approved by a high-ranking court judge. This is necessary to ensure that institutions that are involved in surveillance are held accountable. Second, surveillance should be strictly crime related. It cannot be, as a practice, trained towards legitimate opposition as is

often the case in the so called second republic. Third, the protection of the surveilled data is key.

What happens to the data post-surveillance? ICA is silent about this. Fourth, post-surveillance notification is yet another important safeguard. Targets should be informed after the act. But there is no expectation that these crucial reforms can be done. For a start, the courts are too captured to push back and protect rights like the right to privacy.

This means there is no judicial route to reform this defective law. There is also the growing role of China as a supplier of the technologies, and as a case study of how to do surveillance. China is a major supplier of surveillance technologies to Zimbabwe, and many countries in Africa. Recipient countries are not only absorbing the technologies. They are also mimicking some of the hard-core surveillance practices China implements at home.

But because countries like Zimbabwe are not officially one-party states like China, we will see an inevitable authoritarianism interspersed with some democratic practices to appease the international and regional communities.

Given the burdens of the ruling party at the moment, i.e. its inability to win public opinion, Zimbabwe’s authoritarianism is likely to harden through surveillance. This authoritarianism is embedded in the country’s laws and have no change to anticipate. Zimbabwe’s authoritarianism, remain rooted in its history, as well as the current status quo. Zimbabwe’s parliament, if its majority was sober, would have moved with haste, to amend ICA in order for the law to provide sufficient constitutional protections and guardrails to journalists and lawyers in the country.

But there is a warped thinking by the Zanu PF majority that all flawed legislations that they gleefully pass, will be weaponised against the opposition and civil society. The world is awash with vicarious lessons for those who participate by

collusion in the passing of such flawed laws. They forget to learn that one day, these laws will be used against them when they are on the wrong side of political power.

When vice-president Kembo Mohadi resigned on 1 March 2021, he wrote, in his resignation letter that he was, “…a victim of voice cloning, sponsored spooking and political sabotage…”

What Mohadi was saying by ‘sponsored spooking’ is that he had been surveilled on. This is what happens when laws are unjust and lack protection. Everyone becomes a victim as decided and determined by the powerful. ICA is one such law. While those in power celebrate, thinking it will be used against their enemies, reality is that it makes everyone vulnerable.

Munoriyarwa is senior lecturer of media studies at the University of Botswana’s Department of Media Studies. He is also a senior research associate in the Department of Communication and Media at the University of Johannesburg in South Africa. This article is an output of an eight-country surveillance research project titled Public oversight of digital surveillance for intelligence purposes: A comparative case study analysis of oversight practices in Southern Africa. This project is supported by the British Academy Global Professorship Programme, through the School of Social and Political Sciences at the University of Glasgow.