On Tuesday 15th January, the second day of a stay-away called by the Zimbabwe Congress of Trade Unions, all Internet services across the country were terminated under government directives. Econet, the country's largest mobile telecommunications operator and Internet service provider [ISP], issued the following statement to its subscribers:
"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 Department acting in terms of the Interception of Communications Act, internet services are currently suspended across all networks and internet service providers. We are obliged to act when directed to do so and the matter is beyond our control."
Other ISPs issued similar statements. As all ISPs complied with the Minister of State's orders, the effect was to shutdown Internet services, email services and social media platforms such as WhatsApp, Facebook and Twitter.
On Wednesday 16th January, in a letter to the Minister of State, lawyers acting for three individual journalists and the Zimbabwe Chapter of the Media Institute of Southern Africa [MISA Zimbabwe], demanded immediate revocation of his warrant, failing which legal proceedings would be instituted. There was no response and no revocation of the warrant.
Court Application and the Government's Response
ZLHR and MISA Zimbabwe v Minister of State for National Security and Others - the Internet Shutdown Case - please follow this link to read the complete Application, the Opposition papers filed by the Director-General of CIO and the High Court order.
Later the same day, therefore, an urgent chamber application was lodged in the High Court, Harare, seeking provisional suspension of the warrant and orders to ISPs to resume services, pending the grant of a final order setting aside the warrant. The applicants were Zimbabwe Lawyers for Human Rights and MISA Zimbabwe; the respondents were the Minister of State, the Director-General of Intelligence, the President and the ISPs Econet, NetOne and Telecel Zimbabwe.
This admirably comprehensive application raised numerous grounds justifying the setting aside of the warrant, including: (1) that section 6 of the Interception of Communications Act ["the Act"] did not authorise a blanket ban or suspension, only the interception of communications - making a suspension of Internet services ultra vires; (2) that section 6 of the Act is inconsistent with the Constitution, particularly section 61 - freedom of expression, and section 56 - equality of all under the law. Care was also taken to show that the warrant had been issued by the Minister whereas the President had reserved administration of the Act to himself by SI 212/2018.
The Director-General filed a notice of opposition on Friday 18th January, supported by an affidavit from the Deputy Director, Administration. The affidavit admitted that the Minister of State was the person who had issued a "directive" ordering the blanket ban under section 6 of the Act, and that the President had reserved the administration of the Act to himself. But the Deputy Director firmly defended the Minister's action as authorised by the Act and justified by the circumstances prevailing in the country [for instance, the use of the Internet and social media to foment the violence and other unlawful conduct that accompanied ZCTU stay-away]. She also emphatically disputed the other legal and constitutional grounds advanced in the application.
The Hearing before Mr Justice Tagu
The hearing of the application took place before Mr Justice Tagu on Monday 21st January, as befitted its urgency. It was to have been held in the judge's chambers but was moved to a courtroom in order to accommodate those members of the press and public wishing to attend.
Counsel for the applicants commenced by requesting the judge to decide the case on the simple preliminary point that the Minister of State, not being the person legally responsible for the administration of the Act and accordingly not being "the Minister" for the purpose of the Act, was not the correct functionary to exercise the powers conferred on "the Minister" by section 6 of the Act, whether by issuing a "warrant" or a "directive".
This preliminary point was straightforward. Section 6 of the Act - the section under which the Minister was said to have acted - confers power to issue directives and warrants on the "Minister". Section 2 of the Act defines "Minister" as meaning "the Minister of Transport and Communications or any other Minister to whom the President may from time to time assign the administration of this Act". The President has not assigned the administration of the Act to the Minister of State; on the contrary, according to SI 212/2018 of 19th October 2018, he has reserved to himself the administration of the Act, as he is entitled to do in terms of section 104(1) of the Constitution. Ergo, the Minister of State has no powers under section 6 of the Act.
Veritas in its Constitution Watch 2/2019 of 19th January made this point, and also stated that the Internet shut down was unconstitutional.
As counsel for the Minister and the Director-General had [and could have] no answer the preliminary point, the judge then proceeded to decide the case in favour of the applicants - without hearing oral argument on the larger legal issues raised by the application.
This preliminary point was straightforward. Section 6 of the Act - the section under which the Minister was said to have acted - confers power to issue directives and warrants on the "Minister". Section 2 of the Act defines "Minister" as meaning "the Minister of Transport and Communications or any other Minister to whom the President may from time to time assign the administration of this Act". The President has not assigned the administration of the Act to the Minister of State or any other Minister; on the contrary, according to Statutory Instrument 212/2018 of 19th October 2018, he has reserved to himself the administration of the Act, as he is entitled to do in terms of section 104(1) of the Constitution. Ergo, the Minister of State has no powers under section 6 of the Act.
A provisional order was issued giving the respondents ten days to show cause why a final order should not be issued setting aside the Minister's directives. If the respondents wish to do that , they must file the requisite papers with the High Court within ten days, failing which the case will be set down for confirmation of the provisional order as an unopposed application.
To regulate the situation pending a final order, Mr Justice Tagu also granted interim relief as follows:
suspending forthwith the directives or warrants issued by the Minister of State or the Director-General shutting down internet communications during the previous week and any subsequent days of January
ordering ISPs [Econet, NetOne, Telecel and all other holders of telecommunications licences to unconditionally resume full and unrestricted internet services to all subscribers
Those hoping that the High Court would use this case to set aside the Minister's Internet shutdown with a ringing condemnation of the Interception of Communications Act as inconsistent with the constitutional rights of citizens may have been disappointed by a decision on a narrow technical point not involving freedom of expression at all.
There may be a further confrontation in the courts - given press reports on statements this week by Government that the Act as it stands is not only consistent with the Constitution but gives Government the power, albeit through the correct functionary, to impose an Internet shutdown and/or to interrupt social media applications whenever it believes such action to be justified.