MISA And Its Army Of Lawyers Agree With Us: The Order To Shutdown The Internet Was Not Lawful

Early today we published our opinion on whether the internet shutdown was lawful or not. Econet’s Strive Masiyiwa claims that his companies were following a legal directive issued in terms of the law when they shutdown Zimbabwe’s internet.

I could not disagree more, while it is true that Zimbabwe’s government forced Econet and others to shutdown the internet, despite the government’s lame claim that it was congestion, Mr Masiyiwa’s claim that this was done in terms of the law is of the law is just to put mildly is not true. The legal instrument Econet and allegedly its lawyers say the government used to shutdown the internet does not remotely allow for this.

We are not lawyers but a lot of lawyers including those from the Media Institute of Southern Africa (MISA) agree with our reading of the law:

16 January 2019

Attention: Honourable Minister Owen Ncube

Minister of State in the President’s Office for National Security
Chaminuka Building
5th Street
Harare

Dear Sir,

Re: WARRANT IN TERMS OF THE INTERCEPTION OF COMMUNICATIONS ACT [CHAPTER 11:20] — SUSPENSION OF INTERNET SERVICES

1. We refer to the above matter and hereby write in that regard at the instance of our clients:
1.1. Columbus Mavhunga, and
1.2. Godwin Mangudya, and
1.3. Philemon Jambaya, and
1.4. ‘The Media Institute of Southern Africa (MISA),

who are all aggrieved by the ongoing nationwide internet shutdown in Zimbabwe.

2. The individuals listed above (Mangudya, Mavhunga and Jambaya) are Zimbabweans who are duly accredited journalists and whose profession heavily hinges on access to the internet. On the internet platform, these journalists access the information that is needed for them to effectively carry out their duties, and on the same platform they disseminate information in the form of news stories, features and other forms of journalistic output.

3. MISA is a local Trust duly registered in terms of the laws of Zimbabwe operating as a non-governmental organisation primarily to promote free, independent, diverse and pluralistic media, as envisaged in Section 61 of the Constitution Zimbabwe. Further they work to promote access to information in terms of Section 62 of the Constitution.

4. As stated in the aforegoing, our clients strongly object to the ongoing closure of all internet services, officially acknowledged through Econet Wirless (our client’s service provider) in a bulk SMS message sent out to clients this morning — Wednesday 16th January 2019. ln that message, Econet Wireless Zimbabwe Limited announced thus:

“Further to a warrant issued by the Minister of State in the President’s Office for National Security through the Director General of the President’s Dept, acting in terms of the Interception of Communications Act, Internet Services are currently suspended across all networks and Internet Services Providers.

We are obliged to act when directed to do so and the matter is beyond our control. All inconveniences are sincerely regretted “

5. We have perused the Interception of Communications Act [Chapter 11:251 carefully and cannot find anything in that statute that would authorize such blanket interference with an essential means of communication in the manner you have proceeded.

6. In particular, our considered view is that the Act is applicable only as far as “listening, recording or copying” of telecommunication systems or radicommunicaton systems and “reading and copying” in respect of communications by post. It is our view that there is no provision in the Act that empowers the Minister to issue a blanket warrant that suspends/shuts down internet services throughout the country.

7. Such conduct is a clear violation of universal fundamental rights recognised by various Internation Law Instruments and in the Constitution of Zimbabwe, including the right to freedom of expression and freedom of the media, and the right of access to information.

8. In addition, it goes without saying that the ongoing nationwide shutdown of internet services has wider grave implications on Zimbabwean society in general, for example;

8.1. Schools cannot efficiently call back all their staff and pupils;
8.2. The banking system has been crippled and therefore people are unable to transact;
8.3. Businesses generally cannot transact;
8.4. The justice delivery system has been hampered; and
8.5. Our clients are unable to disseminate information essential to people’s safety and security, particularly in the context of the current situation as they have no access to their e-mails and other internet services.

9. As long as you, in your capacity as Minister, allow the unlawful warrant to stand with all access to e-mails and other Internet services blocked, the Government’s mantra that “Zimbabwe is open for business” would be significantly undermined.

10. In addition to being ultra vires the Act and the afore-mentioned rights, the nationwide shutdown of all internet services is in violation of section 68 (1) of the Constitution in that it amounts to administrative conduct which is not lawful, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

11. We now that the Act authorises you to revoke a warrant, and the present circumstances require that this be IMMEDIATELY done.

12. As a result of the afore-said, we have been instructed to demand, as we hereby do;

12.1. the immediate revocation of the warrant; and
12.2. a copy of the warrant, and
12.3. your written assurance that there will be no further shutdown/suspension of internet services.

13. We further advise that if the above is not done PROMPTLY, we have been instructed to proceed to institute legal proceedings without further notice to you.

Yours Faithfully

ATHERSTONE & COOK

CC – Econet Wireless Zimbabwe Limited

CC – The President’s Office (The Director General of the President’s Department)

CC – The Minister of Information, Communication and Technology

CC – Attorney General of Zimbabwe