FIVE Non-Governmental Organisations have petitioned the Lusaka High Court over the Cyber-security and Cyber Crimes Act no.2 of 2021 for being unconstitutional as it seeks to restrict the right to privacy, the right to freely impart and receive information, freedom of expression, freedom of the media, among other rights.
President Edgar Lungu on March 23, 2021 assented the Cyber Security and Cyber Crimes Act No. 2 of 2021 into law for the purpose of providing cyber security in the country and for collection of and preservation of evidence of computer and network related crime.
However, Chapter One Foundation, Bloggers of Zambia limited, Governance, Elections, Advocacy, Research Services (GEARS) Initiative, People’s Action for Accountability and Good Governance in Zambia, and Alliance For Community Action are seeking a declaration that sections 11, 12, 29, 38, 40, 54, 59, 65, 69, 72 and 74 of the Cyber Security and Cyber Crimes Act be struck out from the statute books for being unconstitutional.
The NGOs have cited the Attorney General and the Director of Public Prosecutions as respondents in the matter.
Chapter one Foundation director Susan Matale, Bloggers of Zambia executive director Richard Mulonga, GEARS Initiative chairperson Patrick Kaumba, PAAGZ executive director Fumba Chama and ACA executive director Laura Miti argue that the Sections in question seek to control the right to privacy, freedom of expression, freedom of the media in a manner that is contrary to the limitations allowed by the constitution.
Matale, Mulonga, Kaumba, Chama and Miti are suspicious that the provisions of the Act have the potential of being abused in order to stifle dissenting opinions, independent views and critical thought.
“If left in their current form, the provisions will have detrimental effects on the participation of citizens in the governance of their country for fear of prosecution under vague laws,” the five stated.
In their petition, the NGOs said the Cyber Security and Cyber Ctimes Act contains several provisions which threaten to limit the right to protection from the deprivation of property guaranteed by Article 16, the right to privacy guaranteed by Article 17, the right to protection of the law guaranteed by Article 18, the freedom of conscience guaranteed under by Article 19, the freedom of expression guaranteed by Article 20(1) and freedom of the press guaranteed by Article 20(1).
“The Cyber Security and Cyber Crimes Act seeks to provide penal legislative control over the digital space by criminalising several acts in broad and vaguely defined terms. In addition, the Act seeks to facilitate wide scale surveillance and interception of private communications with sufficient safeguards for constitutional guaranteed rights and freedoms,” the NGOs said.
They stated that digital communication and technology had improved access to information and real-time communication and has fostered democratic participation by expanding freedom of expression, facilitating informative exchanges, amplifying and spreading messages of human rights defenders and allowing them to expose human rights abuse but such has been curbed by the Cyber Security and Cyber Crimes Act.
The NGOs stated that Article 16(1) of the constitution guarantees the protection of all persons from the deprivation of their property.
They contended that Article 17 of the constitution guarantees the right to privacy but the said right is restricted to anything that is reasonably required in the interest of defence, public safety, order and anything that is required for the purposes of protecting the rights of freedom of other persons.
Matale, Mulonga, Kaumba, Chama and Miti claimed that various provisions of the Cyber Security and Cyber Crimes Act were inconsistent with the rights and freedoms guaranteed by the Constitution.
They indicated that the powers bestowed on cyber inspectors to search and seize documents, books, records, data, information, property and search a person’s premises without a warrant and the fining or jailing of individuals who obstruct the officers limits the right to property, privacy, fair trial and freedom of conscience as guaranteed by Articles 16, 17, 18 and 19 of the constitution.
“The power bestowed upon law enforcement officers to orally request an interception of any communication with no proof and no accountability is unfettered and overly broad,” said the NGOs.
They contended that Section 29 of the Act is an unjustifiable threat to freedom of expression and the right to protection from self-incrimination under Article 20 and 18 of the Constitution.
“The Act seeks to make it mandatory that any entity providing an electronic communication service must be able to intercept its users’ communications at all times,” the NGOs said.
“The right to privacy is premised on the principle that individual citizens ought to be free from state intervention and intrusion. Section 38 and 40 limit the enjoyment of the right to privacy under Article 19 of the constitution by requiring that service providers deliberately provide services that are capable of being compromised for purposes of interception.”
The NGOs said Section 54 of the Act prohibits the publication of information that is intended to “compromise the safety and security of another person” but it does [not] state how such is determined of what amounts to publication “in a computer system”.
Matale, Mulonga,Kaumba, Chama and Miti argued that the provision is incompatible with the constitutionality guaranteed freedom of conscious, expression and freedom to freely communicate ideas and freedom of the press as guaranteed by Articles 19 and 20 of the Constitution.
“The definition of hate speech as provided by the Act is overly broad and does not precisely define the prohibited conduct contrary to Article 18(8) of the constitution. This permits too wide a margin for subjective interpretation and abuse of provision,” said the NGOs.