Validity of Mr Jelousy Mawarire's Charge under s88 of the Posts and Telecommunications Act, Chapter 12:05

Mr Jealousy Mawarire is being charged for violating the provision of s88 of the Postal and Telecommunications Act, Chapter 12:05 in that he sent an offence tweet pertaining to the person of the Minister of Higher Education, Prof Jonathan Moyo.

There is uproar in the legal fraternity as to whether a tweet amounts to a telephone message. Traditionally, the known telephone message was a Short Message Service (SMS) and it appears that the outcry is based on the perception that a tweet is not a telephone message. A similar offence can also be made by someone who uses a telephone to make an abusive call against another person under s88 of the Postal and Telecommunications Act, Chapter 12:05. The question will be if one uses Skype call to send offensive voice content can that person be charged under s88(c) of the PTA?

These two offences are committed when one uses a telecommunications system to convey an offensive message whether by voice or text. It is important to understand what a telecommunications system is and it is defined in section 2 of the PTA  as meaning,
'any system by means of which signs, signals, sound, pictures, or communications are conveyed by the agency of electricity, electromagnetism, or by any agency of like nature, whether with or without the aid of wires, and includes telephony and telegraphy  and any improvements and developments thereof;'

The next issue is does Twitter service fall under the term telecommunications service as envisaged by s88 of the PTA?

For a service to fall under the armbit of the definition of a telecommunications service it must make use of a telecommunications system. The concern from the public is that Twitter is a social media application based on the Internet. The Internet is an interconnection of networked computers across the globe. However, for one to access the internet, you will need a telecommunications system. It is the telecommunications system which gives you access to Twitter application which you will then use to convey electronic magnetic signals in form of sound, pictures, text, data to an intended destination. I must point out that SMS is also a telecommunications application although it is not hosted on the internet.

Thus, what is punishable is the misuse of a telecommunications system for the conveyance of abusive content. So if you use Twitter application to convey an offensive text via a telecommunications system you will them be violating s88 of the PTA.

Therefore, if indeed Mr Mawarire sent offence content via Twitter it means he misused a telecommunications system to convey offensive content pertaining another person and on the face of it he may have a case to answer.

However, there is a constitutional perspective to the issue especially with regards to whether s88 of the PTA can pass the Constitutional muster of Freedom of Expression under s61 of the Constitution of Zimbabwe and the question is whether offensive speech is also protected under the Constitution?

The analysis must be done in light of section 61(5) (c) of the Constitution which excludes protection of content inter alia that is likely to maliciously injure a person's reputation or dignity. The court will have to assess the evidence before it to make an appropriate decision as to whether Mr Mawarire's speech is protected under s61(1) or it is excluded from the protected zone by virtue of s61(5).

Otherwise, I do not think that the use of twitter is not covered under s88 of the PTA and it could be argued that s88 also envisage technological improvements of both the system of conveyance of electromagnetic signals as well as service application. This also means that if you use Skype to convey offensive content you may also be prosecuted under s88 (c) of the PTA.

Lyndon Nkomo

HEADLINE: Section 62 of the Education Act, Chapter 25:05 is misaligned with the provisions of Section 6 of the Constitution of Zimbabwe.

Article by Lyndon T. Nkomo
Trustee of Deaf Zimbabwe Trust & IFSDZ

Section 2 (1) of the Constitution of Zimbabwe provides as follows;
'This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extend of that inconsistency.' This provision establishes the basis upon which all laws should be tested against the provisions of the Constitution.
Section 62 of the Education Act, herein after referred to as the 'Education Act', as it now stands is misaligned with the new Constitution because it trammels the provisions of Section 6 of the Constitution which list a number of languages as officially recognized languages in Zimbabwe including Sign Language.
Section 62 of the Education Act, provides that:
62 Languages to be taught in schools
(1) Subject to this section, the three main languages of
Zimbabwe, namely, Shona, Ndebele and English, shall be
Taught in all primary schools from the first grade as follows—
(a) Shona and English in all areas where the mother
Tongue of the majority of the residents is Shona; or
(b) Ndebele and English in all areas where the mother
Tongue of the majority of the residents is Ndebele.
(2) prior to the fourth grade, either of the languages
Referred to in paragraph (a) or (b) of subsection (1) may be
Used as the medium of instruction, depending upon which
Language is more commonly spoken and better understood
By the pupils.
(3) From the fourth grade, English shall be the medium
Of instruction:
Provided that Shona or Ndebele shall be taught as subjects
On an equal-time-allocation basis as the English
Language.
(4) In areas where minority languages exist, the Minister
May authorize the teaching of such languages in primary
Schools in addition to those specified in subsections (1), (2)
And (3).
Our understanding of these provisions is that Shona, English and Ndebele are ranked as superior languages in the Zimbabwean education system and yet there are other languages recognized as official languages in Zimbabwe in terms of section 6 (1) of the Constitution of Zimbabwe.
Furthermore, in terms of section 6 (3) of the Constitution of Zimbabwe,
'The State and all its institutions and agencies of at every level must
Ensure that all officially recognized languages are treated equitably;...'
Section 62 of the Education Act fails the linguistic equity test referred to in section 6 (3) of the Constitution. It makes all other languages inferior to English, Ndebele and Shona and that falls foul of the spirit and letter of the Constitution.
This is why over the years Sign Language was not a recognized language of instruction in Zimbabwean schools and regrettably this situation has been perpetuated into the new Constitutional dispensation. Thus, the Education Act promoted and continues in its current form an oralist approach to the teaching of Deaf Children in schools. We have always argued that Sign Language is the natural language of Deaf people and to teach them using Ndebele, Shona or English inadvertently promotes academic genocide through oralism. These are oral languages in practice whereas sign language is visual in nature.
We also advise that whilst the linguistic and cultural rights of all Zimbabweans are secured under the provisions of section 63 of the Constitution of Zimbabwe, Section 62 of the Education Act is misaligned with the freedoms guaranteed in Section 63 of the Constitution of Zimbabwe as it create linguistic inequity and discrimination by undue and unconstitutional preference of English, Shona and Ndebele as languages of instruction in Zimbabwean Schools.
Deaf people in Zimbabwe want Sign Language to be used as a language of instruction in Deaf Schools and this is consistent with the freedom guaranteed in Section 63 (a) of the Constitution which provides that
'Every person has a right
(a) to use the language of their choice; and...'
Sign Language is the language of choice for Deaf people.
Although the Minister has a discretion to authorize the use of minority languages as languages of instructions in schools under section 62 (4) of the Education Act, that discretion is unconstitutional in that none of the languages listed in Section 6 of the Constitution is classified as a minority language. The Constitution actually introduces the concept of linguistic equity by clearly stating that '...all officially recognized languages must be equally treated...'
Therefore, the discretion which the Minister had before the promulgation of the new Constitution is no longer constitutionally permissible. The languages listed in section 6 of the Constitution of Zimbabwe are all equal and must be used as languages of instruction in Zimbabwean Schools.
Therefore, we call upon the Ministry of Primary and Secondary Education and the Ministry of Justice Legal and Parliamentary Affairs which is responsible for the realignment of the laws with the new Constitution to review the Education Act as matter of urgency as it is violating the constitutional rights of other people whose languages are neither English nor Shona nor Ndebele and in particular the Deaf people whose views we fully represent herein.
Deaf Zimbabwe Trust
29/01/2016