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;'
'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
