[Bill-Watch] Bill Watch 26/2014 of 12th June [Parliament and SI 142/2013 - Phone Registration Regulations]

[Veritas Bill Watch]

BILL WATCH 26/2014
[12th June 2014]
Parliament is in Recess until Tuesday 1st July
World Cup Kicks Off in Brazil Today 
Unfinished Business in Parliament
What is the Status of SI 142/2013? Postal and Telecommunications (Subscriber
Registration) Regulations
a.k.a. Zimbabwe's Online Spying Law ?
Statutory Instrument [SI] 142/2013 - containing the Postal and
Telecommunication (Subscriber Registration) Regulations - was gazetted on
27th September 2013, and came into operation only a few days later, on 1st
October 2013.  Readers may remember the largely hostile reaction reported in
the press at the time, under headlines such as Zimbabwe's Online Spying Law,
Government to Spy on Cellphones and A Spies Charter.  The constitutionality
of the regulations was then questioned by the Parliamentary Legal Committee.
This bulletin sets out what should happen next.  Meanwhile the regulations
are still in force, unchanged. 
Summary of the Regulations
[Full SI is available from Veritas via the addresses given at the end of
this bulletin.]
Registration of subscriber information by service providers  The regulations
prohibit "service providers" [i.e. organisations providing telecommunication
services such as cell-phone services, telephone services and internet
access] from providing services to any customer unless they have obtained
and recorded basic information about the customer's identity - full names,
residential address, nationality, ID particulars, SIM card or telephone
number etc.  Service providers must store this information for as long as
they provide services to a customer and for five years afterwards.  
Databases of subscriber information  Service providers must keep registers
recording the subscriber information collected, and must provide the Postal
and Telecommunications Regulatory Authority of Zimbabwe [POTRAZ] with access
to and copies of their registers on demand and also supply POTRAZ with
regular updates.  POTRAZ must maintain a central database of this
information.
Disclosure of subscriber information  The regulations emphasise repeatedly
that subscriber information held by service providers and in POTRAZ's
central database is confidential.  Outside access is prohibited, except on
limited grounds, which include assisting emergency services or law
enforcement agencies [a term which is not defined but which presumably
includes the CIO], safeguarding national security, or for approved
educational and research purposes.  POTRAZ may give information in its
central database to a law enforcement agent only if it is requested in
writing by an officer of or above the rank of Assistant Commissioner of
Police or an equivalent rank in another force, but must not do so if the
disclosure would constitute a breach of the Constitution or any other
enactment, or constitute a threat to national security.
The regulations do NOT directly authorise "tapping" of calls and e-mails
The regulations deal only with "subscriber information".  They do not cover
supplying information regarding calls made, or e-mails or text messages
sent, by subscribers or customers.  So, they do not directly allow
government agencies to eavesdrop on phone calls or to intercept e-mails or
text messages.
At most, the regulations may facilitate eavesdropping or interception by law
enforcement officers under the Interception of Communications Act.  Under
that Act law enforcement officers can apply to the responsible Minister for
a warrant authorising them to intercept communications including calls,
e-mails and messages.  If they know the personal particulars of people whose
calls and messages they want to intercept, this may assist them in applying
for interception warrants.  
Note:  A full analysis of the regulations was provided in Bill Watch 49/2013
of 7th October 2013, in which it was suggested that it was unlikely the
Constitutional Court would hold them to inconsistent with constitutional
rights to privacy and free expression.  Bill Watch 50/2013 of the same date
pointed out careless errors in drafting and the fact that there had been no
process of public consultation before the regulations were gazetted and
brought into operation at short notice.
Adverse Report from Parliamentary Legal Committee
The Parliamentary Legal Committee [PLC] only became operational in November.
So SI 142 was not immediately subjected to the constitutionally required
scrutiny by the PLC.  [See below for an outline of the PLC's role in
Parliamentary oversight of statutory instruments.]  On 5th March the
presiding officers announced in both Houses of Parliament that the PLC had
returned an adverse report on SI 142, expressing its concerns about
infringements of constitutional rights to privacy and freedom of expression.

Summary of the Adverse Report
[Full report available at the addresses given at the end of this bulletin.]
After a full description of the contents of the regulations and a brief
survey of SIM card registration elsewhere, the report considers whether the
regulations infringe the constitutional rights of privacy and freedom of
expression.  It points out that the creation of databases of subscriber
information eliminates the anonymity of communications, facilitates
location-tracking and simplifies surveillance and interception under the
Interception of Communications Act, and exposes persons to identity theft.
The conclusion is that the regulations need amending to align them with the
Constitution, in particular, to guarantee judicial oversight over access to
subscriber databases.  Also emphasised is that Zimbabwe badly needs a
comprehensive data protection law.  
SI 142 and Adverse Report Still to be Considered by Parliament
Immediately after receipt of the adverse report, the presiding officers, in
compliance with the Constitution and Standing Orders, added items to the
Order Papers of both Houses for consideration of the report.  This
consideration has not yet taken place, and the item remains on both Order
Papers for when Parliament resumes on 1st July.  The reason given for this
delay is that there is a real possibility the report will be withdrawn by
the PLC, as the Minister of Media, Information and Broadcasting Services has
indicated willingness to amend the regulations as suggested.  If the PLC
finds the Minister's amendments satisfactory, it can withdraw the adverse
report, which would render consideration by the Senate and the National
Assembly unnecessary.  [See below for the PLC's role in relation to
statutory instruments and the Parliamentary procedures that must follow an
adverse report.]
Parliamentary Oversight of Statutory Instruments
Statutory Instruments are generated, in terms of Acts of Parliament, within
Ministries or, under the supervision of Ministries, by subordinate
law-making authorities such as local authorities and statutory bodies.
Which Ministry is responsible in a particular case depends on which Minister
has been assigned to administer the Act concerned [Bill Watch 6/2014 of 18th
February covered the latest assignments of Acts by the President].  
As described in the rest of this bulletin, Parliament does have a
constitutional oversight role over statutory instruments, which is exercised
by 
.        the Parliamentary Legal Committee, and 
.        and the two Houses of Parliament.  
The Parliamentary Legal Committee and Statutory Instruments
As regular Bill Watch readers will know, the Constitution provides that no
Bill can be finally passed by Parliament without the PLC having reported on
its constitutionality.  So every Bill has been scrutinised and reported on
by the PLC before being gazetted and becoming law as an Act.
With statutory instruments, on the other hand, the PLC scrutiny required by
the Constitution occurs only after they have been gazetted as law.  Section
152 provides that the PLC must scrutinise every gazetted statutory
instrument and report to Parliament whether it considers any provision in
the statutory instrument contravenes any provision of the Constitution or is
ultra vires its enabling Act.  In addition, Parliamentary Standing Orders
require the PLC to report whether a statutory instrument has certain other
defects, such as errors or omissions that need to be corrected or provisions
more properly a matter for an Act of Parliament.
Effect of an adverse PLC report raising a constitutional contravention  A
PLC report pinpointing a constitutional contravention in a statutory
instrument activates the procedure laid down by paragraph 9 of the Fifth
Schedule to the Constitution.  Both Houses of Parliament must consider the
report and vote on whether the statutory instrument contravenes the
Constitution as reported.  If a resolution affirming a constitutional
contravention is passed by either House, the Clerk of Parliament must report
the resolution to the authority responsible for the regulations and this
authority, whether it is the President, a Minister or some other authority,
must then, within 21 days-
.        repeal the statutory instrument or the offending provision, or 
.        apply to the Constitutional Court for a declaration that the
statutory instrument is constitutional.  If the Constitutional Court grants
the application, the statutory instrument will continue in force; if it
dismisses the application, it will nullify the statutory instrument or the
offending provision.  Pending the court's decision, the statutory instrument
is automatically suspended.
Effect of an adverse PLC report that a statutory instrument is ultra vires
If the PLC reports that a provision in a statutory instrument is ultra
vires, the report must be considered by both Houses and if either House
resolves that the provision concerned is indeed ultra vires, that provision
immediately ceases to have legal effect, and the Clerk of Parliament must
without delay give public notice in the Government Gazette of the passing of
the resolution and of its effect, i.e., that the offending provision has
been nullified.  
Effect of other adverse comments by PLC  Where the PLC reports that a
statutory instrument is marred by errors or omissions, it will be up to the
authority responsible for the statutory instrument to decide whether or not
to act on the report.  As the majority of the PLC's members must be lawyers,
and as the PLC is assisted in its work by Parliamentary Counsel, also a
lawyer, such reports should be treated with appropriate respect and
implemented wherever feasible. 
PLC and draft statutory instruments:
The PLC must also consider any draft statutory instrument referred to it by
the Minister or other authority wanting to make the statutory instrument and
report back to the sender any constitutional contraventions it has
identified.  Unfortunately, this provision for an advisory opinion is
seldom, if ever, used by those empowered to make statutory instruments. 
Withdrawal of an Adverse Report Before Consideration by Parliament
The Constitution allows the PLC to withdraw an adverse report before it is
considered by the Senate or the National Assembly, but only if it is
satisfied that it has been repealed or amended in such a way as to remove
the contravention of the Constitution or the enabling Act [Constitution,
Fifth Schedule, paragraph 9(1)].
This brings us back to the adverse report on SI 142 and the delay in its
consideration by the Senate and National Assembly.  It is commendable that
the Minister is prepared to make amendments in compliance with the report
without Parliamentary resolutions having to be passed.  While it is
regrettable that the further consultations between the Minister and/or
POTRAZ and PLC are taking so long, the gazetting of suitable amendments
would permit a satisfactory conclusion to this matter. 
Important Reminder: Courts Still Have Power to Invalidate Statutory
Instruments
Checking by the Attorney-General's Office - and scrutiny by the PLC - are
intended to reduce or eliminate the appearance in the Government Gazette of
statutory instruments that are unconstitutional or otherwise legally
unsound.  Nevertheless, the courts retain full power to invalidate statutory
instruments where appropriate.  And courts are not bound by legal opinions
expressed by the PLC.  So, a non-adverse report from the PLC does not
guarantee that a statutory instrument will not be declared invalid if
challenged in court.  Similarly, an adverse report will not necessarily
persuade a court to reach the same conclusion as the PLC.
 
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