Case Summary and Outcome
The Supreme Court of Zimbabwe struck down sections of the Postal and Telecommunications Act (the Act) that gave the President powers to intercept communications if he deemed it necessary in the interest of public safety. The Law Society of Zimbabwe had challenged the sections generally and, more specifically, in respect of communications covered by lawyer-client privilege. The Supreme Court found that sections 98(2) and 103 of the Act were too vague to adequately allow citizens to regulate their conduct and were thus too overreaching to be reasonably justified in a democratic society. Therefore they did not satisfy the constitutional requirement of ‘provided by law’. Furthermore, as the Act did not provide any limitations or control mechanisms on the exercise of the President’s discretion, they unjustifiably infringed the right to freedom of expression and were unconstitutional.
The Law Society of Zimbabwe, which, at the time, represented 600 legal practitioners in the country, applied to the Supreme Court for a declaration that sections 98(2) and 103 of the Postal and Telecommunications Act [Chapter 12:05] (the Act) were invalid on the grounds that the provisions infringed legal practitioners’ and their clients’ right to freedom of expression. Section 98(2) of the Act stated that, if the President believed that national security or the maintenance of law and order required, he could order that post, telegrams, or cellular telecommunications be intercepted or detained, and then given to a state official to be disposed of as directed by the President. In the case of cellular telecommunications services the President was empowered to order that the service be suspended. Section 103 empowered the President to issue any directions to the holder of a telecommunications licence deemed by the President to be necessary in the interests of national security.
The Law Society argued that the provisions threatened the privilege that exists between a lawyer and client and which is protected by section 8 of the Civil Evidence Act [Chapter 8:01] in Zimbabwe. The Law Society therefore applied to the Supreme Court for a declaration of constitutional invalidity.
Chidyausika CJ delivered the unanimous judgment of the full bench of the Supreme Court.
The issue before the Court was whether the two provisions of the Act were an unjustifiable limitation of the right to freedom of expression. The right to freedom of expression in section 20 of the 1980 Constitution was not absolute, and permitted the limitation of the right if that limitation was “done under the authority of any law”, it was in the interests of, inter alia, public safety and public order, and was “reasonably justifiable in a democratic society”.
The Law Society submitted that clients necessarily disclose private and confidential information to their lawyers, and that lawyers require this full disclosure in order to effectively advise their clients. It argued that the disclosure of this information to third parties could harm their clients, and highlighted that the purpose of the lawyer-client privilege was to protect clients. The Law Society explained that, although the Act’s provisions related to general communications, “the right of the State to intercept communications in terms of sections 98 and 103 of the Act put at risk the privilege of such communications and this constitutes an interference with the constitutional rights of both the lawyer and the client”. The Law Society argued that the respect of lawyer-client privilege “was fundamental to the proper administration of justice” and that the privilege protects the rights to freely communicate and to fair justice.
The Law Society further submitted that the purpose of the provisions in the Act “did not fall within any of the exceptions permitted under section 20(2) of the Constitution”, and that even if they did, the provisions were “too vague to satisfy the requirement as provided by law and are not reasonably justifiable in a democratic society”.
The Minister accepted that the Act’s provisions were a limitation on the right to freedom of expression, but argued that they did fall within the permissible exceptions and were reasonably justifiable in a democratic society.
Chidyausika acknowledged that lawyer-client privilege is not absolute, and that there are exceptions – including when the communications are criminal in themselves or when they are intended to “obtain legal advice to facilitate criminal activities”. He said that “a proper reading of section 20 of the Constitution reveals that lawyer-client privilege, as such, is not constitutionally guaranteed. It is only constitutionally guaranteed to the extent that the lawyer-client privilege is subsumed in the right to freedom of expression which includes freedom from interference with one’s correspondence.”
Chidyausika held that the Act’s provisions were a derogation of the right, but confirmed that “freedom from interference with correspondence is not an absolute right”. The Court was therefore required to determine whether the derogation constituted a “law” and was both necessary and reasonably justifiable in a democratic society.
In assessing whether the provisions met the criteria of a “law”, Chidyausika held that the Act “confers unfettered powers to intercept correspondence and communications” and that as the President was merely required to have the opinion that the correspondence or communication threatened public safety, it was “not a legal requirement that the opinion be based on reasonable grounds or good cause”. He added that the Act did not restrict or limit whom the President could authorise to intercept the communications, what happened to the correspondence after it was intercepted, who had access to the intercepted material and “what steps are to be taken to ensure that any lawyer-client privilege is not unduly interfered with”. He concluded that the “net effect of the failure to provide statutory mechanisms to control or limit the exercise of power conferred by the Act on the President leads to an unfettered discretion to intercept mail and communication”. In addition, the provisions “provide no guidance as to what a citizen should not do to avoid conduct that might lead to the exercise of the powers conferred by the impugned sections” and the legislation “provides no legal recourse or safeguard for the innocent” and no “mechanisms for accountability”.
Chidyausika held that “[i]n the absence of such limitations and control mechanisms the powers conferred on the President are too broad and overreaching to be reasonably justified in a democratic society” and the provisions “are so vague that the citizen is unable to regulate his conduct in such a way as to avoid the interception of his mail or communication”. Consequently, “the impugned sections of the Act are too vague and do not satisfy the constitutional requirement of ‘provided by law’.”
Chidyausika therefore declared the provisions unconstitutional and struck them down.