Zimbabwe is or maybe not at the brink of yet another massive demonstration by the citizens against the government.
When this demonstration planned for tomorrow the 31st of July was being discussed on Twitter, I dismissed it as something that wasn’t going to happen. Well the government seems to believe the demos are going to happen and they have started their usual type of response: deploying soldiers with guns to prevent people, all people including medical doctors from going to work.
If the government can stop doctors from going to work in the midst of an escalating pandemic, it is sensible to believe that they will do what they did the last time there was a demo. They switched off the internet for all Zimbabweans, they will probably do it again today or tomorrow.
But wasn’t that action ruled illegal?
After the government directed that the internet be switched of in January 2019 as demos were happening in our urban centres, the High Court then ruled that that order by the government was illegal.
The judgement was technical
High Court Judge Tagu, ruled that the minister of state security who had invoked the Interception of Communications Act to order the shutdown was not the right person to invoke that Act. The law says that actions taken under that Act can only be sanctioned by the president of the republic.
What the judge didn’t rule on
Besides the question of who had invoked the Interception of Communications Act and whether that person had authority to , another question before the judge was whether the Act even mandated the issuance of a directive to shut down the internet by anyone. The judge did not make a ruling on that and that is a problem.
Nothing stops the president from signing the directive to shut down the internet this time standing on the very same Act whether or not he believes the piece of law gives him that power. He can do it today or tomorrow and then the courts can make their ruling after the fact.
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.
A convenient piece of law for the government
If indeed the president issues a directive to shut down the internet, he will probably not even draw on the authority of the Interception of Communications Act. Last time, this was the next best piece of legislation to use since President Mnangagwa was out of the country at the time.
The more convenient piece of legislation that he would probably use is the Presidential Temporary Powers Act which has been his all purpose hammer for anything from currency regulation to some public health regulations. This time he will probably claim that this is necessary because the protests pose a public health risk during the COVID 19 pandemic. This is true of course and it makes me cynical of the organisers of the demo to be honest but that’s besides the point.
If only the conversation had been about the constitution
The far more important ruling Judge Tagu did not make was whether the switching off of the internet was even permissible in our constitution to start with. The question was presented before him at the time but he didn’t make any ruling on that. So the government still has cover to claim that they did not contravene a ruling on a constitutional matter.
So, yes the internet is highly likely to be switched off in Zimbabwe and the government still has a lot of safe room to hide behind legal technicalities. As we said after the ruling by Judge Tagu, it wasn’t uhuru yet.
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