When the current crop of leaders in government executed a clever coup that drove out Robert Mugabe in November 2017, most of us overestimated their ability to think. Those guys are just a dumb lump of clowns pretending to be ruling Zimbabwe.
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You can’t quarrel against this opinion if you consider the manner in which they responded to last week’s business shutdown by closing down the internet. The shutdown started last Monday and was scheduled to last until Wednesday. Hooligans showed up, looted and burnt things. That gave the government a fat opportunity to exhibit its dumbness.
On Tuesday, the State Security minister ordered internet service providers (ISPs) to plunge Facebook, Twitter, Instagram, WhatsApp and other digital services into darkness so that people couldn’t communicate. Then there was a complete shutdown of the internet. On Thursday, the minister directed the ISPs to bring back internet, but not the social media services. This was immediately reversed. The reversal was then reversed on Friday to bring back the internet only. Virtual Private Networks that some people were using to bust the block were also disrupted.
The European Union has already issued a statement from Brussels condemning the internet shutdown, so has a couple of international watchdogs. President Emmerson Mnangagwa, ironically, also spoke on the business shutdown from Eurasia. That is a group of useless eastern European countries that he fled to after torching the current storm by serving breaking news on fuel price hikes in the thick of night last Saturday. The president said people must enjoy their constitutional right of freedom of expression. He didn’t talk about the closure of the internet, strangely.
His statement presents the first absurdity. He posted it on Facebook. His government had closed down Facebook. That is pretty like hollering into the hollow. And things can’t get hollower than that. You can’t use the same platform that your government has closed down to communicate. Who is your audience then? Because, you see, you mustn’t be talking into darkness and hope that will make sense. In any case, it was always going to be weird to try and sound like you are a proponent of freedom of expression and access to information when you are busy doing the opposite by starving people of the same goods.
Mnangagwa’s clumsiness was just part of the sad tale of absurdities. Deputy Information minister, Energy Mutodi, flatly denied the reality of an internet shutdown. He is always doing crazy things, so people were prepared to ignore that stunt. Then, apparently realising the mess Mutodi had made, the Information ministry offered its own statement acknowledging the internet shutdown. Apparently taking a cue from Mnangagwa, the ministry used Twitter to make that acknowledgement!
But that tweet exposed government big time because it showed that the authorities don’t have a single clue on the law. That’s a legal absurdity. The ministry claimed that government had used the Interception of Communications Act to shut down the internet. It claimed that the Act provided “for the issuing of a warrant to interfere with communications where, among other things, public safety or national security is (sic) threatened”.
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This ignorance of the law is unbelievable for a government that has a whole, albeit captured, division of justice and a president who claims to be a lawyer. The last time I checked — and there is no other time because the law in question has not been amended — the Interception of Communications Act didn’t say a single thing about interfering with communications as claimed by the ministry.
Here is what section 6(2) of the Act says: “The Minister may, if he or she is of the opinion that the circumstances so require… upon an application being made in terms of this Part (i.e. Part 3 that deals with applications for lawful interception of communications), issue instead of a warrant any directive to a service provider not involving any interception or monitoring of communications”. This is the only clause that the ministry could be referring to in its vain attempt to justify the internet shutdown. There is no other in the whole Act.
This clause clearly says the minister may set aside a warrant and issue a directive instead. That contradicts what the ministry says in its tweet. The ministry is saying the minister is empowered to issue a warrant to interfere with communications and, by implication, is saying government used a warrant to block the internet. But that’s not what the law says. It’s therefore a mystery where the ministry got its fake clause from.
That’s not all. Generally, the Act in question never says a single thing about internet shutdowns. The law focuses on monitoring and interception of communications that are deemed to be harmful or potentially to national security and stability. These communications would be telephonic, postal or digital. There lies another absurdity. If you close down the internet, there is no online communications to monitor or intercept. So, even if the responsible authority were to use his or her own discretion to make a relevant directive, it wouldn’t make sense to close down the internet and pretend that he or she is doing it so as to monitor or intercept communications.
Besides, section 6(2) of the Interception of Communications Act is one of the vaguest pieces of law that humanity has known since the days of Abraham Lincoln. It doesn’t define the parameters within which a responsible minister may give a directive that is not a warrant which would ordinarily be applied for to intercept or monitor communications. The net effect is that the clause gives the minister a blank cheque where directives are concerned. That means the minister can do anything from ordering his wife to strip in public to using a death squad to kill people.
That militates against one age-old principle of law-making. Any law that is vague is null and avoid. This is because it can be interpreted against the interests of justice. But then, the law is a tool to promote justice. Naughty interpretation of the law brings injustice and promotes abuse of the justice system. That is what happened when the State Security minister shut down the internet.
Even if the Act unequivocally gave the minister the power to shut down the internet, there is no way in which that provision would be sustained. This is because the Zimbabwean constitution outlaws any intervention that undermines freedom of expression and access to information.
Three sections of the Constitution are useful in this regard. Section 60 gives Zimbabwean citizens, permanent residents and others freedom of conscience. This means freedom of thought, opinion and belief and the right to propagate them. Section 61 gives people the right to seek, receive and communicate ideas, thoughts and other forms of information. Section 62 provides for people’s freedom to gain access to information that reflects interests of the public. Without the slightest doubt, closure of the internet takes away these freedoms. Granted, these freedoms must be balanced against other important issues such as national security. But it will always be a long haul for the government to demonstrate that the destruction of property by hooligans was a sufficient justification to clause down the internet.
Tawanda Majoni is the national co-ordinator at Information for Development Trust (IDT), a member of the Global Investigative Journalism Network (GIJN) and can be contacted on tmajoni@idt.org.zw
