‘We will visit your bedrooms’: testing the adequacy of safeguards in the interception of communications in Zimbabwe through the lens of the AmaBhungane case

Abstract

Targeted or bulk interception of communications is a permanent feature of contemporary society. Ancient states deployed rudimentary practices such as raiding mailmen, shooting carrier pigeons and rerouting telegrams. In modern times, the interception of communications happens effortlessly. Under these laws, interception targets are usually not informed. Laws compel public and private actors to cooperate with government directives mandating real-time, targeted or bulk surveillance. Government officials have openly acknowledged the state’s capacity to intercept private communications and intrude upon private spaces. In most regimes, the laws lack oversight and effective remedies. The article looks at Zimbabwe’s Constitution and international legal obligations and frameworks on surveillance. It problematises the various provisions of the national law authorising interception against international human rights standards, comparatively with the South African laws. The article contrasts provisions of Zimbabwe’s Interception of Communications Act of 2007 (IC Act), on interception and surveillance of communications against the decision in Ama Bhungane v Minister of Justice & Others which found provisions of South Africa’s Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (RICA) unconstitutional. The article observes that the RICA provisions are uncannily similar to the Act’s provisions and, therefore, concludes that the IC Act cannot stand a constitutional test. If these provisions are challenged, a court would have no option but to find them repugnant to constitutional and international human rights standards. In addition to the fully developed principles of necessity and proportionality, the article proposes the expansion of principles of adequate safeguards as essential to protecting individuals against arbitrary surveillance that allows visitation in people’s bedrooms. Any surveillance law must start from the basis of achieving adequate safeguards, and in this instance any amendments to the IC Act must fulfil this basic requirement.