So yes the court has ruled that the internet shut down order given by the minister of state security was an illegal order. The judge went on to order the lifting of all restrictions on social media access that have been in place since Tuesday last week.
The actual ruling made
The ruling made by Justice Tagu today was on whether or not the minister who administered the Interception of Communications Act on Tuesday last week was the right one to administer it. The judge ruled that the minister was not legally empowered to administer this law. As Veritas argued in a bulletin we published here, the only person who can administer the Interception of Communications Act is the president and this has been the case since 2012.
The important matter not yet ruled on
Justice Tagu did not make a ruling on whether the Interception of Communications Act allows for the switching off of the internet or any communication systems. The fact of the matter is that this act only permits the president to issue a warrant or directive to intercept communications but not to stop communication altogether.
The ruling was about WHO made the order and not about whether the law itself says such an order can be made.
Before the ruling is made that it is indeed fact that this piece of legislation does not permit anyone even the president to order the shut down of the internet, we can’t celebrate. As it is, the president can call for the internet to be shut down tomorrow or today using the Interception of Communications Act. This will be in error but the courts have not yet ruled that the government’s reading of the act is wrong.
The pretext that this law allows for the switching off of the internet must be buried once and for all. Judgement on this is important.
The supremacy of the constitution
Another even more powerful ruling that would seal the legal fate of any further government action to switch off communications is a ruling that says such action is unconstitutional. If it’s not clear whether such actions are supported by the constitution or not, laws that empower the government to do this in the future can always be made.
The government is increasingly talking about crafting a Cybversecurity law. This is of course an important law except that the government is always talking about it within the context of limiting social media. The minister of information talked extensively in this way in a presentation to soldiers at the Defense University. The president’s spokesman referred to a cybersecurity law and it was within his limited understanding of what the internet is and what it enables.
A constitutional ruling will pour lead on the grave of future interference in communications by the government.
Test of rule of law
Even if all such judgements are passed, the government can still decide to break the law. Abandoning the law at the discretion of the government is a big problem in Africa and in Zimbabwe particularly. This is not only the problem of the government but of the citizenry as well.
I have seen a lot of people comment on our articles here that the government was justified to switch off the internet because chaos was growing. No matter what, the law cannot be suspended otherwise there is no rule of law- it becomes a rule by decree. Citizens also need to be educated on the concept of rule of law.
No matter how good the intentions are, all actions must be done in accordance with the law. Observing the limitation of our own laws is a big first step towards maturity as a nation.
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Owen Tagu is a Zimbabwean lawyer and a judge of the High Court of Zimbabwe. He was appointed by President Robert Mugabe in 2013. Justice Tagu was sworn in on the 14th of July 2014, by President Robert Mugabe himself. Before his appointment as a... Read More About Owen Tagu