• 11 May 2016

Acknowledgement: MISAZIM Free online expression and opinion under threat Debates related to use, misuse and regulation of the Internet have triggered interesting conversations especially in relation to free expression as a critical digital rights issue in Zimbabwe. By far the most interesting development in the past six years is the growth in the reliance or usage of the internet and information and communications technologies by Zimbabweans. Zimbabweans have embraced technology as a more open and reliable alternative means of communication. It is also being used as a tool for mobilisation and participation, social interaction, accessing news and financially transacting. If the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) report is anything to go by, most Zimbabweans access the internet via mobile phones. This also comes at a time when Zimbabwe awaits finalisation of the national ICT policy and enactment of the cybercrime laws, which will regulate the establishment, operations and use of the internet. Government has committed to having the laws enacted by the end of the year. In coming up with the proposed laws, the government should therefore be mindful of the internet regulation principles agreed to at the Internet Governance multi-stakeholder conference hosted by MISA-Zimbabwe on 21 August 2015. Of particular concern are the arrests of people expressing themselves through the WhatsApp platform since the beginning of the year. MISA-Zimbabwe has recorded four such arrests. The arrests, which included that of politicians, law enforcement agents and ordinary citizens, were in terms of Section 33 of the Criminal Law (Codification and Reform) Act (CODE). This provision criminalises the making or publishing of a false, abusive, indecent or obscene statements against a sitting or acting president that may encourage feelings of hostility, hatred, contempt or ridicule towards them. The most recent arrest is that of 46-year old Ministry of Agriculture employee, Ernest Matsapa who was arrested over an audio-visual he sent on a WhatsApp group. The audio-visual allegedly depicted President Robert Mugabe as incapacitated and a burden to the ‘majority of people, including his family’ due to his age. In this case, the state alleged that the audio-visual was denigrating to President Mugabe and was likely to interfere with the public’s comfort, convenience and peace. He was therefore charged with ‘criminal nuisance’. Fears that the government is determined to curtail free expression online were heightened by President Mugabe’s pronouncements earlier this month when he called for the adoption of the Chinese firewall in Zimbabwe to control activity on social media. Encouraging though are the judicial peeks into the constitutionality of some of the insult laws. While judgment was reserved in two cases pertaining to the presidential insult laws, observations made by the Constitutional Court questioning the constitutionality of the offence raises hope for the repealing of the founding Act. The two cases include the case against former Nyanga North MP, Douglas Mwonzora accused of labeling President Robert Mugabe a “goblin” during a rally in 2009 and that of Bulawayo artist, Owen Maseko who was charges with insulting President Robert Mugabe through “offensive” paintings of the Gukurahundi massacre. The criminalisation of citizens’ expression on online platforms that they trust to be secure enough to engage and access information on social, economic and political issues, is an unfortunate development. It has serious implications on the use of technologies and their impact for greater democratic citizen engagement and the development of the country. This is something that should be taken seriously particularly at this point in time when the country is already in a pre-2018 election mode. Surveillance and monitoring of activity on applications such as WhatsApp is technically difficult for internet service providers to monitor activity on it. Particularly so after the application introduced an end-to- end encryption of its services. However, there are other impediments that enable the continued clampdown on online opinion and expression. Firstly , it is us citizens who make these clampdowns easier as we voluntarily spy and report on each other. It is also important to note that following a tip-off, the transmission of insult messages can be charged under Section 88 of the Postal and Telecommunications Act (PTA). This should also be viewed in the context of the statutory obligations of mobile network service providers in that regard. A clear demonstration of this is the 2015 arrest of Tatenda Benjamin Machingauta after he sent a message to a WhatsApp group insulting Buhera South legislator, Joseph Chinotimba’s beard. Econet, reportedly co-operated in that regard by submitting details of the sender leading to his arrest. Undoubtedly as we draw closer to the 2018 election, Zimbabwean internet users being aware of their vulnerability online, will try to play it safe, by either self-censoring or simply not engaging on critical conversations that have a bearing on their livelihood. What is critical at this stage is recognition that for the internet to reach its fullest potential of allowing Zimbabweans to enjoy their human rights, internet users must be aware of their rights to expression online and demand its decriminalisation. This should be within the ambit of the broader legislative reform agenda given that rights restricted offline through a litany of laws can also be eroded online under the very same Acts by the ruling elite.