Addressing The Gaps In The Data Protection, Privacy And Surveillance Legislation In light of the legitimate need to prevent, detect, and investigate crimes, it cannot be gainsaid that the Interception of Communications Act and the Postal and Telecommunications Act are necessary. The question arises whether the two pieces of legislation pass the proportionality test. Therein lies the rub. The Interception of Communications Act and the Postal and Telecommunications Act are found wanting in various material respects. 4.1. The Interception of Communications Act 4.1.1. Definitions The Interception of Communications Act uses the word “monitoring” in various instances. For instance, as noted above, the long title of the Act states that its purpose is, among other things, to allow for the monitoring of certain communications. Further, Section 9 (1) (h) (i) of the Act requires postal and telecommunication service providers to have the capacity to allow monitoring by more than one authorised person. However, the interpretation clause of the Act, namely Section 2, does not define the word “monitoring”. It follows that there is no indication as to the parameters that authorised persons are required to observe in monitoring communications, thus rendering the process of monitoring communications openended and liable to abuse. Accordingly, there is a need to incorporate a definition of the term “monitoring” in the interpretation clause of the Act. 4.1.2. Lack of judicial oversight In Section 5 of the Interception of Communications Act, as amended, the powers to allow interception of communication are vested in the Minister of Transport and Communications upon advice by the Cyber Security Committee. In terms of Section 4B of the Act, as amended, members of the Cyber Security Committee are appointed by the Minister, and they are drawn from various government agencies such as the National Prosecuting Authority, Central Intelligence Organisation, Zimbabwe Republic Police and POTRAZ. It is submitted that the above-mentioned regime for authorising the interception of communications runs counter to the International Principles on the Application of Human Rights to Communications Surveillance, which provides that: Determinations related to communications surveillance must be made by a competent judicial authority that is impartial and independent. By virtue of being a member of the Executive, the Minister is not a competent judicial authority. By the same token, the members of the Cyber Security Committee are appointees of the very Minister, and they are all drawn from government agencies. Accordingly, neither the Minister nor the Cyber Security Committee meets the independence and impartiality envisaged by international standards. Section 5 of the Act must be amended to vest the powers to issue a warrant of interception of communication in the judiciary. 4.1.3. Bulk Communication Surveillance Section 9 of the Interception of Communications Act allows for bulk surveillance. Bulk surveillance can be regarded as involving “the state’s monitoring and targeting of a huge section of the population on a continuous basis using digital technology”36. The problem with bulk surveillance is that it is indiscriminate 36. See section 57 (d) of the Constitution of Zimbabwe, 2013. 37. This can be gleaned from section 86 (2) of the Constitution. 38. B. Hungwe & A. Munoriyarwa, An Analysis of the Legislative Protection for Journalists and Lawyers Under Zimbabwe’s Interception of Communications Act, 2024 at page 13. 12 www.misa.org