By Judith Mulenga CISCA Chairperson
The Civil Society Constitution Agenda (CiSCA) is concerned about the violations of freedoms embedded in the Cyber Crimes Bill 2021.
As CiSCA, we fully understand and are sufficiently aware of the millions of people that fall victim to the cybercrimes each year worldwide but we are equally aware that there are several provisions in The Cyber Security And Cyber Crimes Bill, 2021 which pose a threat to our human rights. The inalienability and inherency of human rights are not subordinate to laws especially inimical provisions contained in the law.
The Bill that the PF Government wants to pass as law in its current form, has a number of provisions that infringe on various freedoms, such as freedom of expression, freedom of speech, the right to privacy, to mention but a few.
The Zambian Constitution in Article 17 provides for the ‘Protection for privacy of home and other property. Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.’ This freedom clearly includes the right not to have information relating to that person’s family, health status or private affairs unlawfully required or revealed or have the privacy of that person’s communications infringed.
Section 29 of the Cyber Security And Cyber Crimes Bill dispenses with the need to obtain a warrant for the interception of communication. A law enforcement officer is free to act without authority from a court or judge and intercept communication and then inform the judge after the event. This proposed provision lends itself to abuse, impunity and is ultra vires to Articles 11, 17, 18(a) and of course the overarching Article 19.
Without a doubt a law which permits the interception of any communication to or from the sender for purposes of determining the sender’s location cannot and does not allow the right to freedom of movement or the right to privacy which all Zambians are guaranteed in the Constitution. We state that Section 30 of the Bill is an infringement of these Freedoms.
The Cyber Security And Cyber Crimes Bill, 2021 makes a demand, in section 38, on electronic communication service providers to invest in electronic communication systems that would enable them to monitor fulltime and in real time and to intercept communications of its subjects. We wish to state that no subject would wish to subscribe for a service where the provider is able to follow everything they are doing and saying. This is not only unethical but also a serious infringement on their right to privacy.
We also note with some concern that the Bill would give unfettered freedoms to some persons or class of persons. Section 89 (1) provides that ‘the Authority may, by declaration, exempt a person or class of persons, for a limited or unlimited period of time, from the requirement to abide by the provisions of this Act.’ What criteria would the Authority use to determine which persons or class of persons should be exempt? Ant law enacted in the nation should apply equally to everyone. As far as we can see this is a lacuna which requires to be amended.
As CiSCA, we propose that the cause, or reason for the Bill should be discussed by several stakeholders where the government will provide evidence and extent of cybercrimes in Zambia, and how they intend to deal with and still maintain people’s rights and freedoms as guaranteed under the Constitution.
CiSCA strongly asserts that the Minister, a political figure, is not the right person to determine and declare what qualifies as ‘critical information’. The Bill should therefore be withdrawn and participation and submissions of other stakeholders incorporated.