BY KENNETH MATIMAIRE Cyber experts have warned that the newly enacted Data Protection Act has brought back criminal defamation into law after it was declared unconstitutional in 2014.
The Data Protection Act was signed into law by President Emmerson Mnangagwa on December 3, 2021 following a report by our sister paper Zimbabwe Independent, published on the same day had exposed that over two months had passed after the Bill left Senate against a stipulated 21 day window for a sitting president to reject or append laws.
Barely six months after its enactment, the Data Protection Act continues to torch controversy as digital and cyber experts warned that the Act infringes on media freedom, free speech and promotes self-censorship.
Misa Zimbabwe singled out Section 164C which deals with the “transmission of false data messages intending to cause harm.”
Misa Zimbabwe legal and ICT policy officer Nompilo Simanje argued that “firstly that provision is smuggling back the criminal defamation that had since been outlawed.”
“Secondly, it is also going against or contravening another Constitutional Court order which also declared that the criminalisation of publishing falsehoods is actually unconstitutional and also that it promotes self-censorship,” Simanje said.
Media watchdogs such as the Media Alliance of Zimbabwe (MAZ) and the Zimbabwe Union of Journalists (ZUJ) concurred.
MAZ programmes coordinator Nigel Nyamutumbu concurred that “the Data Protection Act has to an extent sneaked criminal defamation back on to the country’s statutes despite the Constitutional Court pronouncements on its illegality.”
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Experts said the section is similar to outlawed Section 31 of the Criminal Law (Codification and Reform) Act, which dealt with publishing or communicating falsehoods prejudicial to the state.
Though the law was struck off in 2016, it has been used to arrest journalist Hopewell Chin’ono and two other opposition leaders Job Sikhala and Fadzai Mahere in 2020 and 2021.
Notably in Chin’ono’s case, High Court judge Justice Charewa confirmed that indeed the provision relied on was declared unconstitutional and therefore cannot be relied on to press charges against the journalist.
Court records also indicate that Section 31 of the Criminal Law (Codification and Reform) Act, was declared unconstitutional by the Constitutional Court in the case of Chimakure and two others vs Attorney General in 2016.
Simanje said similar provisions have since surfaced under Section 164C of the Data Protection Act, which cast a dark cloud on media freedom and free speech.
Misa Zimbabwe supported strategic litigation that led to the outlawing of criminal defamation and criminalisation of falsehoods, raised red flags from the time when the Cybersecurity Data Protection Bill (now Data protection Act) was gazetted in 2020.
Reservations were also raised then in submissions made to the clerk of Parliament as well as during public hearings, parliamentary portfolio committee and Information ministry.
Misa Zimbabwe also petitioned President Mnangagwa against signing the Bill when it was tabled before him where criminalisation of falsehoods was one of the concerns raised.
Simanje said Section 164C of the Act fails to distinguish between disinformation and misinformation.
Disinformation is the spreading of false information with a deliberate intent to mislead people while misinformation is the spread of false information without intent to deceive.
Simanje said there was a danger of arresting or penalizing people,who misinform, which at law is not a criminal offence.
“It’s actually an unjustifiable infringement to the right to media freedom and free speech in general because with such provisions people will be afraid to communicate out of fear that they might found on the borderlines of this provision,” she said.
“Also noting that when you criminalise publication of falsehoods particularly online, there is a difference between misinformation and disinformation.
“There are instances where false information is published with a person knowing fully well that that information is false and with an intention to deceive.
Simanje argued that Section 164C will see “some people who might fall under the bracket of misinformation, and had no idea that the information might not be true, would also find themselves on the wrong side of the law.”
Other experts argued that with the way information is shared online easily and quickly, information can also be shared with a genuine belief that it is true.
Chris Musodza of Sahara Geeks, a network of journalists, lawyers, technical IT people and researchers, said it is going to be a problematic to prosecute people using the Act.
“It’s difficult to legislate against publishing falsehoods. At law there is what we call mens rea or (criminal) intent,” Musodza said.
“The state has to prove that you intended to cause harm and also that you knew that it was falsehoods and you intended to publish falsehoods with the intention of causing harm.
“We are going to see a test case to see the first person to be prosecuted how the state proved that you knew that it was falsehood and that you intended to cause a lot of damage with that false information, said Musodza adding that truth is subjective and relative.
Nqaba Matshazi from Misa Zimbabwe said while it might seem like a noble thing, the publication of falsehoods is a strict liability law case, which says ‘Nqaba has to prove that he was not lying’
“But as we know according to our courts and our laws, when you go to court,” Matshazi said.
“The court is the one that is supposed to prove that you were lying not the other way round.
“So how do you prove intent, even as a prosecutor?”
Efforts to get a comment from the line ministries of Information and Communication Technology including that of Information, Publicity and Broadcasting Services over the past month were fruitless as the officials have not been forthcoming.
Information deputy minister Kindness Paradza said “get in touch with Hon (Dingumuzi) Phuti (deputy ICT minister) or Nick (Mangwana – Information permanent secretary).
Mangwana’s mobile phone was not available while Phuti said “You can get in touch with the minister (of ICT Jenfan Muswere).
“I can’t comment much on the matter.”
Efforts to get hold of Muswere were fruitless as his mobile phone continuously went unanswered while both text and WhatsApp messages sent to his mobile phone were not responded to.
However, the Postal and Telecommunications Regulatory Authority of Zimbabwe (Potraz) head of legal services Tsitsi Marowa said there wasroom to make amendments to the Act.
Potraz was controversially bestowed with the authority to establish the Data Protection Authority (DPA).
“If we see that our Data Protection Act needs amendments or (some sections) not meeting our expectations, we can always go back to the growing board,” Marowa said.
“The African Union has amended its several times.
“So we can always do the same,” said Marowa as she responded to questions during the launch of the Data Protection Guide published by MisaZimbabwe recently.
Inquiries indicated that indeed the African Union Commission has made several amendments and currently reviewing its model law on Cybersecurity and Personal Data Protection and Guidelines widely referred to as the Malabo Convention of 2014.
However, only 10 countries have ratified the convention out of the required 15 as there is lack of political will from AU member states.
Zimbabwe is one of the many African countries that have not ratified the Malabo Convention together with the Convention on Cybercrime also known as Budapest Convention, widely used as a model law for developing domestic legislations on cybercrime and data protection.
Experts fear that the country is not bound to amend its Act to meet international or regional set standards.
They warned that the Data Protection Act can be weaponised to target private media, journalists or perceived enemies of the State ahead of the polls next year.
“The fear is that such laws can be used as a weapon to silence dissenting voices and critical media,” said Nyamutumbu said.
ZUJ president Mike Chideme indicated that some journalists genuinely exercising their right to inform might be affected by Section 164C.