Weaponising the law: Zimbabwe’s new frontier in digital rights repression

A smartphone with a cracked screen lies on a faded newspaper background. a hand is planting the flag of Zimbabwe on the screen on the right, and a red gavel is smashing into the screen on the left

Image courtesy Ameya Nagarajan

Zimbabweans live in an increasingly repressive environment for digital rights, particularly targeting human rights defenders, and lately non-governmental organizations. The law is a major tool for such repression and legislation has been passed to undermine legitimate dissent against unpopular policies and politics.

On December 3, 2021, President Emmerson Mnangagwa signed the Data Protection Act (Chapter 11:22) into law. Critics argue that this law infringes on digital rights of citizens and is a ruse for government to legally infiltrate citizens’ online spaces in order to crush dissent. 

Unfortunately, this law does not prohibit internet shutdowns, which have been used in the past to shut down freedom of expression, and other liberties. On February 20, 2022, when opposition leader Nelson Chamisa of the Chamisa’s Citizens Coalition for Change (CCC) drew thousands of supporters to his maiden election rally in the capital city, Harare, internet watchdog NetBlocks reported a significant throttling of internet services, which disrupted live streaming of the rally. This coverage blackout would benefit the incumbent government by limiting potential voters’ enlightenment about the existence of a new opposition party. The CCC is opposing the ruling party ZANU- PF (Zimbabwe African National Union- Patriotic Front) in the 2023 general elections. 

Thus, 2022 will provide ample opportunity to monitor the government response to electoral challenges, and whether or not this will include the use of internet shutdowns and laws to clampdown on activists, opposition leaders and independent media. 

Of a legal guillotine

The end of the 30-year Mugabe regime was to herald a new era  for Zimbabweans. Instead, the country has backslid into populist and military backed strongman rule. After Mugabe was toppled in a military coup in November 2017, his successor Emmerson Mnangagwa pushed for normalization of ties with the international community but this has not happened. Instead, on February 21, 2022, the European Union (EU) extended a decades-old embargo against Mnangagwa’s administration, citing continued rights abuses. 

“Intimidation of political opposition and other government critics has continued to restrict the democratic and civic space, which is under threat of shrinking further through the Data Protection Act and ongoing legislative processes such as the Private Voluntary Organizations Amendment Bill and the envisaged so-called Patriotic Act. The EU is concerned about these developments,” said the EU in a statement.

Data Protection Act: To serve or protect?

The Data Protection Act is one of the laws used to repress freedom of expression and freedom of the media in Zimbabwe, even though these freedoms are guaranteed under section 61 of the Zimbabwean Constitution. Critics maintain that the Data Protection Act should strike a balance between the protection of national security and the exercise of rights of ordinary individuals. This law amends provisions of three pieces of legislation: the Criminal Law (Codification and Reform Act) (Chapter 9:23), the Criminal Procedure and Evidence Act (Chapter 9:07) and the Interception of Communications Act (Chapter 11:20). 

Clause 164c of the act criminalizes the spread of what the government classifies as “false” information online, punishable with a jail term of up to five years, or a fine, or both. 

Earlier in February, in an emailed and telephone interview with human rights lawyer Misheck Marava pointed out that this law does not qualify nor define that which it refers to as false, leaving room for wide interpretation and  making it prone to abuse.

“The provision, in other words, is criminal defamation renamed. Zimbabwe had outlawed criminal defamation but, to the surprise of the nation, this has been revived by this particular provision,” Marava said.

He pointed out that the act ceases to be a data protection law and becomes, rather, a tool to protect the state, a cyber-crime tool.

Marava holds that the original intention in drafting the law as a data protection tool has been overridden by state protection interests, adding that the act is likely to be a tool against expressing anti-government sentiments, which can easily be interpreted as incitement of violence or injurious falsehoods.

Section 12 of the act makes it necessary to obtain consent in writing to process a citizen’s genetic, biometric and health data. However, it does not apply “where the processing is necessary to comply with national security laws or…for reasons of substantial public interest,” Marava asserts. 

In another interview during the same month, human rights lawyer Kelvin Kabaya told Global Voices over email, that this provision falls short of constitutional obligations.

“The proviso to the section is couched in a very wide manner and is capable of being abused. Phrases such as substantial interest, are incapable of a precise meaning. This proviso may fail the constitutional muster, in that it is vague and may violate the right to privacy.”

The law also provides for a Data Protection Authority to establish rules authorizing  and governing the whistleblowing system. Kabaya contends that this provision can be used to clamp down on legitimate journalistic work and whistleblowers exposing corruption. In 2020, for example, investigative journalist Hopewell Chin’ono exposed corruption in the use of COVID-19 funds, which led to the sacking of former Health minister Obadiah Moyo. Chin’ono was subsequently targeted and arrested over violence incitement charges. 

How to intercept intrusive NGOs

Another controversial law is the amendment to the Private Voluntary Organisations (PVO) Act (Chapter 17:05). The bill underwent contentious public hearings last month, tainted by accusations from people who questioned its contents, and is now being discussed in Parliament. The government’s main narrative of justification has been compliance with the Financial Action Task Force (FATF), a non-treaty inter-governmental body tasked with the promotion of measures to help combat money laundering and terrorist financing, to combat terrorism and prevent NGOs from participating in politics.  At least four United Nations (UN) Special Rapporteurs have warned President Mnangagwa against approving the proposed PVOs Amendment Bill, which they say will inhibit the exercise of numerous fundamental rights in Zimbabwe.

Among other draconian provisions, the amendment gives the responsible minister the power to make an application to the High Court to appoint people of his or her own choice as trustees to run the affairs of a designated PVO. 

Kabaya noted that the PVO Bill in its current state poses an existential threat to legitimate Civil Society Organisation (CSO) work as it threatens to close the civic space and does not meet the requirements of FATF recommendations.

“For instance, the bill has no provision for the involvement of CSOs in the determination of NPOs [non profit organisations] that are at risk. The involvement of CSOs in this process is one of the fundamental recommendations of the FATF. The Bill appears to blanket all CSOs as high risk. This is clearly not the intention of the FATF Recommendations,” said Kabaya. 

Successful promulgation of this law could be a long awaited trump card for the ruling party ZANU PF, which has for years accused CSOs of fronting a Western agenda of regime change in Zimbabwe. 

Kabaya explained that the amendments are likely to affect Zimbabwean citizens who are beneficiaries of the work of CSOs involved in digital rights and there is likely to be widening of the information gap on digital rights as some digital rights CSOs may actually close.

This raft of repression enabling legislative acts continues to stifle the digital rights of internet users and enable digital authoritarianism in Zimbabwe.

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