Addressing The Gaps In The Data Protection, Privacy And Surveillance Legislation

The International Principles on the Application of Human Rights to Communications Surveillance
provides that: States should establish independent oversight mechanisms to ensure transparency and
accountability of communications surveillance. Oversight mechanisms should have the authority to access
all potentially relevant information about State actions, including, where appropriate, access to secret or
classified information; to assess whether the State is making legitimate use of its lawful capabilities, to evaluate
whether the State has been transparently and accurately publishing information and scope of communications
surveillance techniques and powers, and to publish periodic reports and other information relevant to
communications surveillance”. The Cyber Security and Monitoring of Interceptions of Communications
Centre is established as a unit in the Office of the President, so it is clear that it does not have the
independence and capacity to discharge the mandate contemplated by the International Principles on the
Application of Huma Rights to Communications Surveillance. Accordingly, a truly independent and able
authority must oversee the conduct of communications surveillance in Zimbabwe. Alternatively, such an
oversight mandate may be given to Parliament 42.

4.2. The Postal & Telecommunications Act
In terms of Section 98 of the Postal and Telecommunications Act, a postal or telecommunication licensee
or employee of such licensee in charge of a telegraph office is allowed to intercept or detain any telegram
which he suspects of having contents that provide evidence of the commission of a criminal offence or
of being sent to assist the commission of a crime; or upon request by a commissioned police officer who
suspects it of having contents that provide evidence of the commission of a criminal offence or of being
sent to assist the commission of a crime. Firstly, Section 98 of the Act does not qualify the suspicion based
on which a licensee or employee thereof may act to intercept a telegram. In that regard, the licensee or its
employee must be required to act based on reasonable suspicion. This is necessary to introduce a safeguard
in the form of an objective test against which the lawfulness of interception of a telegram in terms of the Act
may be measured. Secondly, the regime for the interception of telegrams set out in Section 98 of the Act is
defective in that it lacks the safeguards mentioned above in relation to the Interception of Communications
Act, such as judicial oversight and notification requirements. Accordingly, Section 98 of the Postal and
Telecommunications Act needs to be amended in those respects.

5. Recommendations
Considering the preceding, there are various yawning gaps in Zimbabwe’s data protection, privacy and
surveillance legislation. Accordingly, the following measures are proposed to improve the current state of
the relevant legislation.

5.1. Data protection and privacy legislation
5.1.1. Broadening of the scope of sensitive data
The Cyber and Data Protection Act should expressly include biometric data as part and parcel of sensitive
data. By the same token, the Act should provide a definition of the term biometric data to avoid doubt.

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