FIVE Non-Governmental Organizations have petitioned the Lusaka High Court for a declaration that various provisions of the Cyber Security and Cyber Crimes Act are unconstitutional and should be struck off from the statute books.
The five NGOs, who have cited the Attorney General and the Director of Public Prosecutions (DPP) as respondents, have argued that sections 11, 12, 29, 38, 40, 54, 59, 65, 69, 72 and 74 of the Act severely threaten the right to privacy, the freedom of expression, the right to freely impart and receive information, the freedom of conscience, the freedom of the media and the right to a fair trial.
The NGOs include; Chapter One Foundation Limited; 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.
In their petition filed in the Lusaka High Court, Thursday, the petitioners argued that the Cyber Security and Cyber Crimes Act No 2 of 2021 contains several provisions which threaten the right to protection from 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 by Article 19, the freedom of expression guaranteed by Article 20 (1) and the freedom of the press guaranteed by Article 20 (2).
They submitted that 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.
The NGOs added that the Act seeks to facilitate wide scale surveillance and interception of private communications with insufficient safeguards for constitutionally guaranteed rights and freedoms.
“Digital communications and technologies have undoubtedly improved access to information and real-time communication. In so doing, they have fostered democratic participation by expanding the freedom of expression, facilitating informative exchanges, amplifying and spreading the messages of human rights defenders and allowing them to expose human rights abuses. The Cyber Security and Cyber Crimes Act threatens this,” the petitioners argued.
The petitioners further highlighted some of the offending provisions of the Cyber Security and Cyber Crimes Act.
“The Petitioner is aggrieved by the following provisions of the Act: Sections 11 and 12 — Searches and Seizures contrary to Articles 16, 17, 18 and 19 of the Constitution. Under the provision (Section 11 of the Act), cyber inspectors have powers to search a person or property, inspect any premises related to an information system, take extracts from any book or document in the premises, access and inspect the operation of any computer or equipment forming part of an operation system and require a person (whom they “reasonably believe” to be involved with the operation of the information system) to provide them with such “reasonable assistance” as they may require,” read the petition.
“Section 12 of the Act provides that a person who obstructs a cyber inspector from conducting a search and seizure commits an offence and is liable to a fine or a term of imprisonment. However, the offence of obstruction is neither defined nor does it require any degree of intention. The determination of what amounts to obstruction is open to interpretation by the cyber inspector. As such, a range of actions, including legally protecting one’s information by use of a password or encryption may be construed as obstruction.”
The NGOs further stated that Section 29 of the Act empowered a law enforcement officer to intercept any communication and orally request a service provider to route duplicate signals of indirect communication to the Central Monitoring and Coordination Centre without the leave of court.
“The purpose of the provision is to prevent bodily harm, loss of life or damage to property in circumstances where it is not reasonable or practical to apply for leave as a delay may result in infliction of bodily harm, death or destruction of property. However, there is no safeguard to ensure that the fear of impending danger is legitimate and/or that the information obtained as a result of the interception will be used for lawful purposes,” read the petition.
The five NGOs stated that the right to privacy was premised on the principle that individual citizens ought to be free from state intervention and intrusion.
They however, stated that Sections 38 and 40 threaten to limit the enjoyment of the right to privacy under Article 19 of the Constitution on a wide scale by requiring that service providers deliberately provide services that are capable of being compromised for purposes of interception.
“Section 54 of the Act prohibits the publication of any information that is intended to “compromise the safety and security of any other person.” The Act does not state how this intention is determined or what amounts to publication “in a computer system.” The petitioner submits that this provision is incompatible with the constitutionally guaranteed freedom of conscious, the freedom of expression, the freedom to freely communicate ideas and the freedom of the press as guaranteed by Articles 19 and 20 of the Constitution as the determination of what is information is “published” what amounts to “intent to compromise the safety and security of another person” is left to the determination of law enforcement officers,” the NGOs stated.
“Section 59 of the Act criminalises possession of material of a nature that “tends to corrupt morals” including, but not limited to, drawings, paintings and pictures. The provision further criminalises the act of advertising or making known by whatever means how or from whom any of the “matters or things” referred to in the section can be procured either directly or indirectly. There is no definition of what amounts to “corruption” of morals. The broad framing of the offence gives wide discretion to those charged with its enforcement to determine what conduct is offending. The overly broad framing of the provision is a threat to the enjoyment of the freedom of expression.”
The petitioners now want the court to make a declaration that sections 1 1, 12, 29, 38, 40, 54, 59, 65, 69, 72 and 74 of the Cyber Security and Cyber Crimes Act are unconstitutional and should be struck off from the statute books.
They also want the court to make an order that each party bears their own costs.
And according to an affidavit verifying facts, the petitioners argued that the said provisions seek to limit the right to privacy, freedom of expression and freedom of the media in a manner that is contrary to the limitations allowed by the
They stated that the said provisions have potential to be abused in order to stifle dissenting opinions, independent views and critical thought, adding that if left in their current form the said provisions will have detrimental effects on the participation of citizens in the governance of their country for fear of prosecution under vague laws.