UNPACKING THE DATA PROTECTION ACT CHAPTER 11:22 BY MDC ALLIANCE SECRETARY FOR ICT -HON GILBERT KAGODORA
To begin with, this piece of legislation is meant to legalise actions that had been practiced by the state but have since been spelt out as illegal by the adoption of the constitution in 2013.
It must be noted that the supreme law of the land have guaranteed basic and fundamental human rights ranging from the people right to human dignity protected under section 51 of the constitution, Right to personal security in section 52, right to privacy in section 57, Freedom of expression and freedom of media of choice in section 61 and that unfettered right to access the media.
These are inalienable rights, meaning they cannot be taken away by just a signature on a piece of paper. They would require the executive to institute far fetching constitutional amendments for these to be taken away.
If that thread is coming from the police we would need to know why they are so much interested in enforcing section 164 of the new act. This is the only piece of that act which can allow the police to arrest at will. It affects our day to day communications. It deals a body blow to our capacity to organise and mobilise. They are legally infringing into our spaces.
This is coming at a time that the PoTRAZ has been designated as the Data Protection agency. We all know how this authority has behaved in the past. They are going to be the referees in the whole game and be players too. They are also responsible for regulating not just the content, they are already responsible for regulating the telecommunications sector too.
What this means is the service providers are already being regulated by the same authority that is going to be regulating the content that is going to pass through the channels of the service providers. It means that our services providers are going to be at the mess of the POTRAZ meaning your data and mine is not actually protected but is easily accessible to the state through POTRAZ.
The act is creating an agency in the office the President that deals with interception of communications and this will be responsible for monitoring our communications.
Why are matters of cyber security being elevated to national security issues? It must be noted that cyber security issues are not always matters of national security so they need to be dealt differently and as cyber security issues.
The agency or office that is going to be created in the OPC is going to be responsible for issuing warrants of interception of communications that will allow the executive to intercept communications of people who are designated Persons of National Interest (rightfully or otherwise).
What is most worrying is the composition of the cyber security committee which in essence is bringing the Joint Operations Command into maters of communications. It is important at this juncture to know what they will be doing according to the Act:
• Be the sole facility through which authorised interceptions shall be effected
• Advise Government and implement Government policy on cybercrime and cyber security
identify areas for intervention to prevent cybercrime
• Establish and operate a protection-assured whistle-blower system that will enable members of the public to confidentially report to the Cyber security Committee cases of alleged cybercrime
• Promote and coordinate activities focused on improving cyber security and preventing cybercrime by all interested parties in the public and private sectors.
But who are these guys who are coming into do all this job?:
• The Postal and Telecommunications Regulatory Authority of Zimbabwe
• The ministry responsible for information and communications technologies
• The ministry responsible for science and technology
• The ministry responsible for justice
• The Zimbabwe Republic Police
• The National Prosecution Authority
• The ministry responsible for defence
• The Central Intelligence Organisation
• The Prisons and Correctional Services
• One representative from the Cyber Security and Monitoring Centre
• Any representative from any sector of the economy or any other person who may be necessary to the deliberations in respect of a particular warrant.
To me this is tantamount to putting the goats under that care of the hyenas.
If we explore further just to see the gaps that are being created by this act we can go to section 31 which talks of whistleblowers who are just mentioned but with no protection as there are no safeguards for whistleblowers in the act.
The long and short of it is that most of the sections of past legislations like AIPPA and the Criminal Law Codification Act that was made redundant by the coming in of the new constitution have been brought back through this act under the guise of regulating the cyberspace.
But why are the police most interested in section 164 and its subsequent subsections. These are the spaces that you occupy. These are the spaces that have defeated the refusal by public broadcasters and mainstream media to cover your messaging. We all know what happened to Hon Sikhala when he posted a message on social media. We know what happened to Hopewell Chin’ono and Jacob Ngarivhume when they tried to mobilise using emerging alternative media platforms. The police is basically closing our spaces so that we will not impart our message since the President’s Office will determine what we put on those public spaces especially on social media.
Gilbert Kagodora
