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SENATE HANSARD 27 JULY 2021 VOL 30 NO 52

PARLIAMENT OF ZIMBABWE

Tuesday, 27th July, 2021

The Senate met at Half-past Two o’clock p.m.

PRAYERS

(THE HON. PRESIDENT OF SENATE in the Chair)

MOTION

BUSINESS OF THE HOUSE

HON. SEN. CHIMBUDZI:  I move that Orders of the Day, Nos. 1 to 6 be stood over until the rest of the Orders of the Day have been disposed of.

HON. SEN. MATHUTHU:  I second.

Motion put and agreed to.

MOTION

BUSINESS OF THE HOUSE

HON. SEN. CHIMBUDZI:  I move that Order of the Day No. 7 be stood over until the rest of the Orders of the Day have been disposed of.

HON. CHIRONGOMA:  I second.

Motion put and agreed to.

MOTION

HONOUR IN RESPECT OF MBUYA NEHANDA STATUE IN THE

CITY OF HARARE

HON. SEN. KAMBIZI: Madam President, I move the motion standing in my name that this House:

INSPIRED by the heroics of the legendry Nyakasikana Mbuya

Nehanda in the fight against colonialism and oppression during the First

Chimurenga war;

COGNISANT that Mbuya Nehanda, as a woman of valour selflessly sacrificed herself to challenge the evil forces of colonialism to the point where she was caught and hanged by the ruthless and callous imperialists who had the audacity to publicly lynch a defenceless woman;

NOW, THEREFORE, RESOLVES to:

  1. Applaud the Government for recognising and honouring Mbuya

Nehanda by erecting the magnificent statue of the iconic heroine

in the city of Harare for all future generations and tourists to see and admire;

  1. Call upon all the people of this country to draw motivation and inspiration from the role played by Mbuya Nehanda which culminated in the Second Chimurenga and the ultimate liberation of our citizens.
  2. Implore historians to preserve and author undiluted and unbiased literature on the role of other heroines who emulated Mbuya Nehanda and have continued to keep the glowing fire of the spirit of patriotism which was ignited by our iconic leader.

HON. SEN. MABIKA:  I second.

HON. SEN. KAMBIZI:  Madam President, as a way of introduction, I am going to unpack who this woman called Charwe Mbuya Nehanda Nyakasikana is and some of the events leading to her heroism.  The year 1890, when our country was invaded and fell under British imperial occupation, began what no doubt was the darkest phase of our nation.  Our essence as a nation lay in our people’s resistances to this cruel encroachment and foreign domination that now asserted itself to our land, the 1893/5/ 6/ 7 struggles and the Second and Third Chimurenga. All these are dramatic episodes in the story of our nation, episodes that have given a tragic ring to our independence, giving us a sense of loss and inhuman cruelty by one imperious race.  The same episodes have given us a sense of sacrifice, unity of purpose and cohesion, achievement, heroism and ownership which makes us guard and defend jealously our sovereignty.  This is where Mbuya Nehanda’s heroism emanated from, leading the struggles against foreign encroachment and domination.

Madam President, I will now unpack who Mbuya Nehanda is.   Mbuya Nehanda Nyakasikana was none other than our gallant, defiant and fierce heroine of the First Chimurenga.  She was a spirit medium of Mazowe, a female Shona Mhondoro, a powerful and respected ancestral spirit, one of the prominent leaders of a revolt, the Chimurenga against

BSA Company’s colonisation of Zimbabwe led by Cecil John Rhodes.  She lived with her ally Sekuru Kaguvi who some historians claim was her husband.  Up to this day, Madam President, Mbuya Nehanda remains a symbol of resistance to colonial rule in modern Zimbabwe.

Befittingly, this motion comes at a time this country, Zimbabwe, is approaching the Heroes Day Celebrations.

Madam President, Mbuya Nehanda is one of the greatest African female heroines of our time, who shaped and influenced the early African liberation struggle against colonialism. Heroism became a significant source of inspiration in the nationalist struggle for liberation in the 1960s and 70s.  Her legacy continues to be linked to the theme of resistance and her name became of increasing importance to the nationalist movements in Zimbabwe, for example;

  1. The maternity section of Parirenyatwa hospital is named after her – maybe because of the struggles associated with the maternity wing and women involved.
  2. The College of Health Services of the University of Zimbabwe is located there as well.
  3. A street downtown Harare is also named after her.

Of particular importance Madam President, is that in May 2021, a statue of Mbuya Nehanda was unveiled in Zimbabwe’s capital city of Harare along Julius Nyerere Way – where it meets Samora Machel Avenue.  For those interested to know, the statue was designed by a Zimbabwean Sculptor named David Guy Mutasa.

The statue acts as a constant, powerful reminder and towering statement of the powerful and revered Mbuya Nehanda’s heroic deeds during her time at Shavarunzi Hill before being captured at Baradzanwa Hill by the invading colonial settlers.

The statue is a tangible or physical representation of a person in the form of Mbuya Nehanda, a person who has value and significance to Zimbabweans.  It helps people to remember or associate themselves with their past and the past is important because it influences or shapes our present. The statue reminds us of how our forefathers resisted colonial conquest.  Nehanda personifies this early resistance.

The statue is therefore a national celebration of Mbuya Nehanda’s courage and those who worked with her in a bid to defeat colonial occupation.  It is a tribute to Mbuya Nehanda and many other heroes of the First Chimurenga such as Chingaira, Mapondera, Chinengundu Mashayamombe, Chiwashira - inclusive of Mukwati and Kaguvi. The statue is also a tribute to all those who played defining roles in both the First and Second Chimurenga and going further, it is a celebration of the bravery and leadership qualities that the womenfolk of this country during the First and Second Chimurenga practically exhibited.  The statue is a significant construction because it carries different layers of meaning, all which create a foundation on which peace, mutual understanding and that sense of national identity thrives.

This is a clear sign that women, particularly those in Zimbabwe, some of whom are with us in this House, can be very courageous when they decide to do so as evidenced by the heroics of Mbuya Nehanda and other Second Chimurenga heroines both living and departed.  Examples of the living heroines are - mentioning those close by;  President of the

Senate, Hon. M. Chinomona; Leader of Business in the Senate, Hon.

Minister Mutsvangwa; Hon. Sen. A. Tongogara and Hon. Sen.

Chimbudzi.

So Madam President, I personally feel it is not correct to say

‘behind every successful man there is a woman’.  Instead, it should be transformed to read ‘in front of every successful man there is a very courageous woman’.

Having said that, it is only proper that I call upon the people of Zimbabwe to draw motivation and inspiration from the role played by the gallant and defiant heroine Mbuya Nehanda, which culminated into the First and Second Chimurenga and the ultimate liberation of this country and its citizens.

Mr. President, this motion would be incomplete if I do not just mention some of the departed heroines – Victoria Chitepo, Ruth Chinamano, Maud Muzenda, Sally Mugabe, just to mention a few.  I bemoan the lack of recognition of women freedom fighters.  While many of the African male freedom fighters are well known, their female counterparts have been largely forgotten.  These women usually left to the margins of society were quite instrumental in the fight for the liberation of their respective countries.

I would like to end by imploring historians both male and female, to preserve and author undiluted and unbiased literature on the role of other heroines who emulated the legendary Mbuya Nehanda and have continued to keep the glowing fire of the spirit of patriotism which was ignited by our iconic heroine and leader. To further put icing on the cake, in March 1898 after Mbuya Nehanda and three other males had been tried and sentenced, the white colonialist had the guts to assign Father Richards to convert the four to Christianity before hanging them, but the woman we are talking about was very courageous and even refused to talk to Father Richards.  She went on to resist and persist that she wanted to go back to Mazowe and die with her counterparts vis–avis the male counterparts, Hwata, Zindoga and Chaminuka who agreed to be converted to Christianity of which Christianity, the Bible or the church could not save them and they were eventually hanged.  Look at the courage between the three men and Mbuya Nehanda.

Mr. President, the presence of women in this House is also a sign of courage.  Ten years back, we used to have one to three women but as I speak today, we have quite a large number. I feel a lot can be done by these women. I so move and I thank you.

THE MINISTER OF INFORMATION COMMUNICATION

TECHNOLOGY, POSTAL AND COURIER SERVICES (HON.

  1. MUSWERE): I move that the debate do now adjourn.

Motion put and agreed to.

Debate to resume: Wednesday, 28th July, 2021.

MOTION

BUSINESS OF THE HOUSE

THE MINISTER OF INFORMATION COMMUNICATION

TECHNOLOGY, POSTAL AND COURIER SERVICES (HON.

  1. MUSWERE): I move that we revert to Order of the Day, Number

4.

Motion put and agreed to.

SECOND READING

CYBER AND DATA PROTECTION BILL [H .B. 18A, 2019]

Fourth Order read: Second Reading: Cyber and Data Protection Bill

(H.B. 18A, 2019)

THE MINISTER OF INFORMATION COMMUNICATION

TECHNOLOGY, POSTAL AND COURIER SERVICES (HON.

  1. MUSWERE): The purpose of the Bill is to respond to the evolution of criminal law owing to the effect of fast evolving technology and abuse of networks and the internet. The current law on computer services is limited in its scope and application due to the technological developments considering the fact that cyber crime is borderless. It is of paramount importance that the national laws be harmonised and in the private sense of the financial institutions and other several interventions, the law needs to be strengthened.  It is also paramount that the national laws be harmonised with those within the region and within the international best practice.

Zimbabwe is part of the international community.  Zimbabwe is a signatory to a number of international and regional conventions and treaties.   At the United Nation World Information Society, security set goals for information, communication technology, growth in member states including the need for cyber security.  Like many other countries in the region, Zimbabwe is in the process of harmonising its cyber security with those of the region to increase international cooperation in the fight against cyber crime.

Zimbabwe adopted a policy position that promotes and advocates for e-security to preempt and confine to proper protective measures that lead to public security, peace and order.  An analysis and revenue of the National ICT  laws established that the Zimbabwean laws for ICTs require modification to keep up with technological developments. Laws that address matters relating to ICTs are of paramount importance and we will certainly need effective and different methods of ensuring that

ICT legislation intervention mechanisms are put in place.

In terms of the rationale in relation to cyber protection, the objective is more importantly to respond to the evolution of criminal law owing to the effect of fast evolving technology and abuse of networks and the internet.  The current legislation on computers and ICTs is limited in its scope and application due to technological developments.  Considering the fact that cyber crime is borderless, it is of paramount importance that the national laws be harmonised with those of the region and international best practices.  The Bill seeks to deal with issues of data protection as well, the rationale being to control the information age which is ever increasing exchange of information ideas.  In this regard, information and ideas are referred to as data, whether it is being stored

in various public registers of the citizenry and in the private sense of financial institutions and other several institutions.

Data protection is the process of protecting data and involves the relationship between the collection and dissemination of data and technology, the public perception and expectation of privacy and the political and legal underpinning surrounding that data.  It also relates to legal control over access to use of data stored in computers and other computer networks or savers.  The principle of this Bill is setting of technological and privacy standards in that as data is an integral component of  ICTs that operates across territorial borders and jurisdictions, there is need for the providers of goods and services to be disciplined and exact in the manner in which they handle data.  The interactions between the data subjects or the persons and the providers of various goods and services using ICTs require top level intervention to ensure that the rights and privileges of all subjects are safeguarded to a degree of their expectations on both sides.

This Bill also seeks to empower the consumer - the obligations of collection, process, storage and communication of information over information and telecommunications systems which are prescribed minimum standards which will then be developed.  The consumers of the services provided by these institutions between private and the public will thereby be provided with mechanisms to promote the safety of their data as well as mechanisms of redress if the standards are not met.

In terms of improving regulatory and institutional efficiency, the Bill proposes the establishment of a data protection authority which is well resourced, effective and efficient in order to regulate institutions and introduce regulatory tools in order to guarantee adherence to fundamentals of the Bill.  Thank you Mr. President.

HON. SEN. DR. MAVETERA: Thank you Mr. President.

Firstly, allow me to thank the Minister for bringing this Bill to this august House.  The only unfortunate thing is that the Bill was long overdue.  The importance of the Bill which has been brought to the House by the Hon. Minister cannot be overemphasised.  As the Hon. Minister has said, Zimbabwe needs to be part of the international world and the international family of nations.

Right now, the world is a global village and crime has evolved to such an extent that the laws which were in place cannot cater for the advanced nature of crime which we are facing.  I think we are living in the digital world and everything is being transacted through ecommerce.  As such, it calls for laws which will actually regulate the behaviour of the users of that platform but more importantly, for laws which will protect the public who are the consumers from abuse and criminal tendencies which may actually prejudice the consumers.

Mr. President, I hope the Bill will be broader enough to be able to address the challenges which are being faced by the global business and Zimbabwe in particular.   I hope also the Bill will be broader enough to protect the public from abusers of the so called technology, social media to be included.  I think the Bill comes at a very important time Mr.

President, during this time of COVID.  We have seen how abuse of ICT internet can actually be detrimental to society.  Allow me to just zoom on what is obtaining on the ground at the moment.  I am sure we are all aware and we have come across abuse of the social media by people talking and criticising vaccination. Unfortunately, I would call these people who are peddling all these falsehoods on the social media to be criminals and against the nation, or allow me to say they are enemies of the State. We were at pains to try to rein this errand behaviour. I hope Hon. Senators will contribute and make sure that the Bill is scrutinised so that it is tight enough to control such things and provide penalties which will make it impossible for people to peddle information without basis which will affect the livelihoods and the generality of the people.

Right now, we have lost a lot of lives from COVID and we have to appreciate how a common man in the street believes in what transpires or what is circulated on WhatsApp. So, it goes without saying that we therefore need to ensure that whatever is posted on these so-called unregulated broad media should be safe to the generality of the people

so that we do not end up with a situation which we are having now in Zimbabwe, like the example which I have just given of the vaccines.

We have spent so much buying vaccines. People are dying and the fiscus is drained through so many admissions but we find people peddling lies and discouraging people from being vaccinated. That is tantamount to murder. So I hope, believe and trust that this important Bill that has been brought by the Hon. Minister will be tight enough to protect the generality of the people. I thank you.

*HON. SEN. CHIEF CHARUMBIRA: Thank you Mr.

President. As the former speaker, we have heard a lot about this Bill that it was coming and because of its importance, I think they were trying to come up with good ideas. I am one of the persons who inquired about the Bill and I was told that it was coming. This Bill is loaded and the State has its own interest as well as individuals and groups. We want to be sure that you have included everything. The security of the country – we are happy that you have done a lot. The criminal activities, you have tackled that very well, but as an individual I was crying.

I think this is the third time that I was promised that this Bill is going to rectify my concerns when we come to the Committee Stage, but people use social media to peddle lies and they remain anonymous. Way back, it was easy because you would know that it was the Herald or the Chronicle but these days no one owns social media. There is no identity and we do not know where it is coming from. I was a victim last year but one and up to now, I do not own a twitter account or a face book account, but it came out that Chief Charumbira had said such things about the President regarding Chamisa as if Chief Charumbira had twitted when I do not even own a twitter account.

The Herald tried to rectify that and as time went by – one or two months back, they started to frame people using this social media. So, I went to the Minister of Information and I said, you are the one who is in control of the media - why is it that lies are being peddled against us? She said the Bill has going to rectify that. Minister, I want to be satisfied that if someone comes out of twitter and they create accounts in the names of other people, I do not think it is good for our country that people impersonate other people. I do not think it is freedom because freedom does not go that way.  As I will be following the debate, I would want to see whether you have protected us. Thank you.

*HON. SEN. MABIKA: Thank you Hon. President. I want to

thank the Minister for this Bill. What I really want to say is to support that this Bill was long overdue so that it would protect the public from the social media. There are a lot of divisions that are coming through social media. What I want to ask is that when you are amending the law, it should be like other laws that there is no option of a fine so that people know that peddling lies against someone is a crime. Some people are being used by other people because they have the money to pay the fine.

When someone is involved in an accident, you see people rushing to take pictures and sending them on social media instead of helping the injured. I do not know how it is going to be crafted at the end so that the Bill will protect women. Women politicians are products of this character assassination, mostly when it comes to politics.  Women are victims of character assassination.  I think it should also favour the women because it becomes very difficult through social media.  Thank you.

*HON. SEN. KOMICHI:  Thank you Hon. President. I would

also want to thank the Minister for bringing the Cyber Security Bill.  It is very true that this technology has made everyone become a journalist.

THE HON. DEPUTY PRESIDENT OF SENATE:  Hon. Sen.

Komichi, your device is not connected.

*HON. SEN. KOMICHI:  Due to technology, the world has

become a global village and it is confirmed that everyone is now a journalist.  The world is flooded with people who are now pretending to be journalists.  The population in the world has equaled the number of journalists and this shows us that this is a serious matter.  The print media says that the companies in America were hit by cyber attacks because of people who have hacked the business centres.  This means that this is a huge threat.

Coming back home, we use it to fight each other like what Hon.

Sen. Mabika has said, that women are politically assassinated.  You are given Tweeter handles which you do not have and this is destroying relationships.  It is bringing animosity amongst and suspicions people.  There are a lot who are involved in that.  So, a law to regulate such things is good.  It is now clear that we are going to the new world.  Even if we cry, technology is with us.  The technology that we are faced with, that is the internet, social media is the new normal which we have.  There should be laws that guide us on how to live in the new world and how we can safely use technology for people to benefit instead of using it to destroy one another.

People are now moving from using guns to using technology.

People are destroying each other with this technology.  We also read that there is a President who lost elections because of technology.  A decision was made and a new President installed because of this technology.  It now requires us to work together Hon. President so that we are not tempted because there are certain sensitive areas.

We should be careful not to affect the rights of people.  What causes people to lack discipline is the need for freedom. If we do not have media freedom in the country, people do whatever they want.  They abuse the social media.  Here in Zimbabwe, we have gone a long way but we have one TV station, ZBC.  It takes up all the space for people to express their views, so people will resort to abusing social media.  Media reforms are very critical to where we are heading to because the world has come up with an alternative of opening the media space.  In opening up the media space, there are media consequences which we are talking about.

Another area where we need to be very careful is that when the law is being crafted, there should be no victimisation of the opposition party.  I am not saying criminals should not be prosecuted, they should be dealt with.  The law should not be used to victimize people because it has negative consequences in terms of freedom of expression.  This will lead to people being given names. There are a lot of people who talk a lot.

When I gegan my speech, I said we are a village and we cannot ignore it.  We live in a global world and we get affected with whatever is happening in the world.

The law should be democratic as much as possible.  It should meet international standards because the laws and the policies that we put in place relate to our neighbours.  What a person in Zimbabwe does on social media is as the same what a person the our neighbouring country does as well. So that was my plea Hon. President that the law should be as democractic as possible.  The law should pass international  standards and the law should be an incentive for people to come and invest in Zimbabwe.  We should support the economic agenda of the country so that we change things.  Thank you.

         (v)+ HON. SEN. PHUGENI: Thank you Mr. President Sir for giving me the opportunity to add my voice to this important debate on Cyber and Data Protection.  Thank you so much Minister for the Cyber and Data Protection Bill that you have brought to this House.  We have a challenge as a country since the emergence of social media.  The way people are using it is not good for our nation in most cases.  We need to take a close look at this issue because there is so much bullying that is happening on media platforms.  We have previously heard from Hon.

Sen. Tongogara that women are greatly affected by social media.  I will therefore ask the Minister that since he mentioned that he wants this Bill to be similar to the same laws within the region, he should have a close look at the one that was recently presented and has been passed into law in South Africa, which stipulates that once a picture of mine is taken without my permission and sent to social media, that is regarded as criminal.  One can be jailed for ten years or be required to pay 10 million rands, if I remember quite well.  Since the Minister mentioned that this law should  have similarities with similar laws within the region, that is important because we  have a great challenge because we are realising that there are a number of pictures of women politicians taken and displayed in a derogatory manner that is showing character assassination.

         Thank you Minister for this Bill because it is going to bring sanity to who we are.  It will bring respect to other people.  On the same issue Minister, I want to indicate that within our region, going back again to

South Africa as an example, if you peddle lies about an individual, that is regarded as a big crime that will require huge fines because it will be to do with character assassination.  Yes, we need media freedom Mr. President, but all we are asking for is to see to it that it does not come as a way of frightening people or being used by other politicians for defamation of character to other politicians.  We really need media freedom because if I, as a politician would have done something bad, which negatively affects the country, yes, let us write about it but let us not just peddle lies about each other because that is tantamount to media abuse.  Therefore, you need to look into this issue because it is common in cyber space.  The media space is closely regulated from Media Houses but social media is not, most of the abuse is happening on this platform because it is known that it is not regulated.

However, Media Houses have a tendency of also using social media or coming in as individuals because of the same loophole of the platform not being regulated.  This is why certain communication can be easily read to be coming from certain individuals pushing a particular individual agenda.  Just before finishing Mr. president, here is my other input, which is of great importance, for us to make it a point that our Cyber  and Data Protection Bill is similar to that of other countries within the region. It is critical that when we approach election time and political parties are campaigning, it is our plea that we be given equal opportunities.  This has to be a law that political parties are given equal opportunities when it comes to campaigning, and stop denigrating each other.  Thank you Mr. President, all will be well in our country.  Thank you Minister for presenting this Bill in this House.

*HON. SEN. CHIEF MAKUMBE: Thank you Mr. President.  I

just want to say one or two things concerning the Bill that was brought before us.  Our country has people with a disease of dishonesty.  Everyone who holds a higher position in this country is being attacked because there was no legislation which deals with this discord that is being caused social by media such as WhatsApp, Twitter included.

When people want to tarnish someone’s name, they will write whatever they want and post it on social media, despite the fact that it is true or not.  So, as we proceed, we want the Bill to ensure that such culprits are dealt with.  We want to state what will be the consequences.  If the sources of such information should be researched, is the nation going to have adequate resources to ensure that they check the originator of the message.  My heart goes out to the girl child because in terms of having break ups in love relationships, they are smashed all over the media.  So we want the media to protect such individuals and also to give us consequences for such actions.

It does not mean that those with phones are only found in urban areas but also in rural areas where there are traditional leaders.  We would want, as traditional leaders, to know what we can do in the event of such misbehaviour in terms of social media and how we can address such issues.  People are losing money through fraud from the new technology.  We want to thank the Minister that he has come at the right time and that the country now has legislation to address the issue of integrity and dignity because some of us, the way we do things is not different from animals because of the pull him/her down syndrome.

What wrong will a person have done?

One speaker talked about the vaccine that people did not want to get vaccinated because there were rumours being spread that after three years, one will die but these days you find people start queuing as early as 2 a.m. because COVID is spreading.  The spread of COVID has affected so many people.  We forget that vaccination once took place and people were reluctant to take vaccines.  Some of us who have been vaccinated were now referred to as ‘best before’.

We need the Bill to address this issue.  We need positive technology.  We want to develop knowing that we are in a global economy but we need to look at it in our context and ensure that as Zimbabweans, we are able to develop better.  I want to emphasise that in the rural communities people are attacking each other via WhatsApp.  A lot of things are happening.  Some even have twitter handles.  What we want is empowering those who are leading in those communities in order to deal with such misbehaviour in rural communities.  I thank you.

HON. SEN. DR. PARIRENYATWA:  

  1. INTRODUCTION

The Cyber Security and Data Protection Bill (H.B. 18, 2019) was gazetted on 15 May 2020.The Bill intends to address cyber-crime and increase cyber security in order to build confidence, trust and the secure use of ICTs. The Cyber Security and Data Protection Bill is an advanced, modern Bill that aims to consolidate cyber-related offences, establish a Cyber Security Centre, provide for investigation and collection of evidence of cyber-crime, provide electronic evidence for such offences, and encourage lawful use of technology.   It will create a technology driven business environment and encourage technological development and the lawful use of technology.  The Bill also seeks to amend certain parts of the Criminal Law, (Codification and Reform) Act

[Chapter 9:23] by repealing sections 163 to 166.

2.0 METHODOLOGY 

2.1 The Joint Portfolio Committees on Information

Communication Technology, Postal and Courier Services, Information,

Media and Broadcasting Service and Thematic Committee on Peace and Security had a meeting with the Officials from the Ministry of ICT, Postal and Courier Service on 15 June 2020.The purpose of the meeting was for the Ministry to unpack the Bill for Members.

2.2 The Committees conducted public consultations on the Bill in terms of Section 141 of the Constitution from 5 to 10 July, 2020. The Committees covered part of Harare, Midlands, Masvingo, Bulawayo, Mashonaland West, Mashonaland East, Mashonaland Central, Matabeleland North and South provinces.

2.3 During the hearings, the Committees received submissions from youths, pensioners, church representatives, business organisations, representatives from media industry, Government officials, resident associations, and the general public.  The

Committees expressed their heartfelt gratitude to all stakeholders who contributed at the public consultations and those who made written submissions.

2.4 The Joint Committees also had a virtual hearing on Zoom to cater for interested people who were not able to participate in the hearings.

3.0 SUBMISSIONS ON THE CYBER SECURITY AND

DATA PROTECTION BILL 

3.1. In all areas visited by the Committee, members of the public were aggrieved because they were not aware of the content and context of the Bill. In addition, they were concerned about the Bill being too technical for ordinary citizens especially those in remote areas. Members of the public in different areas were of the opinion that the Bill was supposed to be compiled in different recognised languages in the Constitution. It was therefore, submitted that before Parliament engages on public consultations, there was need to conduct awareness and unpacking of the Bills.

Stakeholders highlighted that there is need to provide for two separate Bills; the Cyber Security Bill and the Data Protection Bill in accordance to international standards and best practices, for instance the SADC Model Law on Data Protection and the African Convention on Cyber Security and Data Protection. Stakeholders highlighted that by combining the two legislations, the Bill becomes difficult to understand.

3.2 CLAUSE 1: APPLICATION 

3.2.1 Stakeholders recommended that the date of commencement of the Bill should be clearly defined because a good law should not apply in retrospect.

3.3 CLAUSE 2: OBJECTIVES 

Stakeholders noted that the objective of the Bill does not accurately describe its provisions. They mentioned that the provisions of this Bill regulate the collection, processing, transmission, storage and use of personal data by the data controller. It was stated that the Bill creates new offences relating to cyber-crime and its investigations, therefore the objective of the Bill must be amended to include the criminalisation of computer and network related crimes

3.4 CLAUSE 3: INTERPRETATION 

Clause 3 of the Bill defines a data controller as “any natural person or legal person who is licencable by the Authority.

Several stakeholders including Google were concerned about three issues on this provision which are as follows:

(i)  the definition of a data controller in its present form suggests that a data controller must be licenced by the Authority. This is the only reference in the Bill to a licencing requirement. (ii) The powers of the Data Protection Authority (the Authority) under Section 8 of the Bill do not include the power to licence data controllers.

(iii) It is unclear whether persons or entities seeking to collect, record or otherwise process data within Zimbabwe will require any form of licencing or registration with the Authority.

Stakeholders suggested that the Bill should have an inclusion of a comprehensive definition describing what entity or person qualifies as a data controller.

The stakeholders highlighted that definition of “data controller” is limited to natural or legal persons licencable by the Authority. This means the Bill’s application is currently limited to persons providing telecommunication services. It was submitted that the definition needed to be broadened to include public bodies and any other person who determines the purpose and means of processing data.

Stakeholders indicated that the Bill in its current form aims to regulate the collection, processing, transmission, storage and use of personal data by telecommunication licence holders and excludes the entities who collect personal information such as banks, insurance companies and hospitals. They recommended that definition of a data controller should be widened to include these entities since they are not currently licencable by POTRAZ.

Members of the public mentioned that the definition of “critical database” does not include a definition of what “critical data” is. It was submitted that there is a need to specify what “critical data” means, particularly because the Bill in the amendment of Section 163 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] seeks to make it an offence “to copy, move, add or change critical data”. This makes it imperative to define the term because of its inclusion as an essential element of the offence of hacking.

It was submitted that the definition of “code of conduct” seems to extend to IT resources and internet for the data controller which is on extremely wide definition. The stakeholders recommended that IT resources be removed from the definition of code of conduct and confirm the definition to IT processes, which means any processes related to the data controller or processor.

Stakeholders suggested that ‘Personal Information’ definition can be expanded to include objectives and subjective elements of personal information.

Clause 5 to Clause 8: DESIGNATION OF THE CYBER

SECURITY CENTRE AND DATA PROTECTION AUTHORITY

WITHIN POSTAL AND TELECOMMUNICATIONS

REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ).

There were mixed views from the people regarding POTRAZ being the Cyber Security Centre and Data Controller.   There were concerns from some stakeholders that if POTRAZ is established as the Cyber Security Centre and Data Controller, this would limit the effectiveness, efficiency and independence of the board since POTRAZ reports to the Executive. They pointed out that the POTRAZ Board was appointed by the Minister hence the board would be a rubber stamp of the Executive decisions. The stakeholders proposed a separate institution as a Cyber Security Centre that is appointed by Parliament and reports to Parliament. Alternatively, it was proposed that POTRAZ should report to and be accountable to Parliament in the discharge of this new role as the enforcement of human rights requires oversight by a body independent from Government.

Other stakeholders however, were of the view that POTRAZ is the perfect Cyber Security Centre as it already has the requisite data and infrastructure in place.

3.6 CLAUSES 9 – 14: STANDARDS AND GENERAL RULES

FOR A DATA CONTROLLER FOR THE PROCESSING OF DATA.

The stakeholders indicated that the principles in the Bill needed to be expanded as it relates to the aspects of processing of data as the current drafting makes data subjects rights after-thoughts and hidden in the Bill’s text.

3.7 CLAUSES 13-14: SENSITIVE INFORMATION, GENETIC DATA, BIOMETRIC SENSITIVE DATA AND HEALTH DATA 

Stakeholders highlighted that the Bill is not explicit on the issue of sensitive information. Stakeholders were not sure if they will be consulted first before their information and data is used.  The stakeholders pointed out that Government institutions and network providers already had personal information and at times the information is already used without their consent.

Stakeholders submitted that Section 13 (1) (c) of the Bill gives the Authority the power to determine circumstances where the processing of data is prohibited despite the consent of the data subject. It was highlighted that this provision gives wide powers to the Authority to prevent the collection of sensitive data, even for legitimate purposes where  for instance:

  • the data subject has freely and voluntarily consented to the collection or processing of his or her personal data;
  • all the necessary disclosure requirements have been met; and
  • there is no real risk of infringement of the data subject’s right.

In relation to consent, it was recommended that Section 13 (1) of the Bill should clearly set out the circumstances under which consent is considered unequivocal and freely given to avoid any confusion surrounding the nature of consent that has been provided.

  • CLAUSE 19: SECURITY BREACH NOTIFICATION

Members of the public highlighted the need for the provision to stipulate a timeline under which the security breach should be communicated rather than leaving the provision open to interpretation on what “undue delay” means.

  • CLAUSES 23 and 24: OPENNESS OF PROCESSING AND ACCOUNTABILITY.

Stakeholders highlighted that level of openness must manifest throughout the Bill by registering all data controllers in a register that is open for public inspection. They noted that accountability must be listed as one of the duties that controllers are required to comply with. This principle should be included in the Bill for the Authority and Data

Controllers.

Stakeholders also stated that the Bill does not speak to algorithms and explained that algorithms mutate due to the developments in artificial intelligence hence the Bill might have been overtaken by events, by speaking to the 1990s state of affairs.

  • CLAUSES 26 AND 27: PROTECTION OF RIGHTS OF

DATA SUBJECTS 

Children representatives submitted that there is need to accommodate the right to be heard when considering consent given on behalf of a child. They indicated that this was in line with Article 12 of the Convention on the Rights of the Child which provides that State parties shall assure to the child who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Stakeholders submitted that there should be a provision for data processors and service providers to protect and ensure children rights are upheld. It was mentioned that the Bill should incorporate the five core provisions which are namely:

  • Clear on minimum age limits on content.
  • Protections for accounts that are opened by under eighteen years.
  • Management inappropriate or illegal content posted on their platforms
  • Use of age verification and identity authentication solutions.
  • Clear safeguard to ensure children rights online

The Committee was informed that the Bill of rights sets out rights and freedoms that the people of Zimbabwe are entitled to by virtue of being human beings. These rights are constitutional rights and therefore legally binding. These rights include

  • freedom of expression (protected in section 61 of the

Constitution);

  • freedom of the media (Section 62);
  • access to independent and impartial news.
  • right to personal security (Section 52),
  • right to dignity (Section 51),
  • right to privacy (Section 57),
  • right to petition and demonstrate (section 59)

Stakeholders were concerned with the rights that the Bill is likely to violate.  They highlighted that the Bill should include rights of data subjects as a standa-lone clause as the Bill does not adequately address and protect data subject rights. These rights include freedom of expression, right to privacy and many other fundamental rights.

Stakeholders strongly recommended Section 164 relating to electronic communication be thoroughly revised to bring them into line with the constitutional provisions relating to freedom of speech and freedom of media.

The public highlighted that new rights have emerged over the years due to the coming into age of the internet. Therefore, there is need to include new rights in the Bill such as the right to oblivion also known as the right to be forgotten. Thus, information uploaded on the cyber space should have a specific timeline to be disregarded and should be forgotten.

  • CLAUSE 31: WHISTLEBLOWER

The Committee was informed that much of the cases of corruption were being unearthed by whistle-blowers.  The public underscored the need to put necessary safeguards to protect whistle-blowers in the statute as well as other concrete steps in the handling of investigations that result from whistle-blowers revelations.

  • CLAUSE 163: UNLAWFUL INTERFERENCE WITH

COMPUTER SYSTEM 

The Committee was informed that this Bill stifles innovation and creativity by completely criminalising hacking without recognising the potential benefits of ‘ethical hacking’. They pointed out that ethical hackers identify loopholes and vulnerabilities in computer systems and use them to strengthen cyber security systems technologies and applications.

  • CLAUSE 164E: TRANSMISSION OF INTIMATE

IMAGES OR VIDEOS WITHOUT CONSENT.  

Stakeholders highlighted that information on social media platforms is shared through forwarding messages. Effectively, anyone who forwards or distributes messages should be criminalised in terms of this Bill. They indicated that the Bill should be clear on determining the source of the criminal activity.

Some stakeholders proposed that on Clause 164 (f), the Bill should also include the terminology that criminalises the recording of upskirting, and nudity. It was suggested that any person who unlawfully and intentionally records an image or video without the person’s consent should be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

  • CLAUSE 165: CHILD PORNOGRAPHY

The stakeholders submitted that the term ‘Child Pornography’ should be replaced with the term ‘child sexual abuse material’ throughout the Bill so that it broadens the focus of the law towards other child sexual harassments and violence to children within the cyber space. It was suggested that any person who unlawfully and intentionally produce, offers, distributes and possess child sexual abuse material should be guilty of an offence and liable to a fine not exceeding level fourteen or

to imprisonment for a period not exceeding ten years, or both such fine and such imprisonment.

  • CLAUSE 165A: CYBERGROOMING OF CHILDREN

The stakeholders suggested a penalty of a fine not exceeding level 10 for any person of the age of eighteen or above who unlawfully and intentionally, through information and communication technologies, proposes to meet a child who has not reached the age of consent to sexual activity as set by the Criminal Law (Codification and Reform Act) [Chapter 9:23] for the purpose of engaging in sexual activity with him or her.

  • COMMITTEE OBSERVATION
  • The Committees were of the view that admissibility rule should not be restricted to criminal acts established under the Bill, but to all criminal offences recognised under the laws of Zimbabwe.
  • The Committees agreed with stakeholders that POTRAZ should not be designated as the Cyber Security Centre and Data Protection Authority. The Committees suggested that the functions that the Bill assigned to the Cyber Security Centre need to be carried out by an independent body due to the sensitivity of matters relating to cyber security.
  • The Committees also supported the need to include in Section 31(1) of the Bill, provision for the guarantee of the protection of whistleblowers.
  • The Committees were in agreement with stakeholders that Clause 26 of the Bill should protect the rights that are enshrined in the

Constitution of Zimbabwe.

  • The Committees were of the view that the Cyber Security Centre and Data Protection Authority should also be separated into two standalone pieces of legislations.
  • The Committees further supported the need to criminalise the recording of up-skirting and recognition of the rights of children on

Clause 164E.

5.0 RECOMMENDATIONS 

In light of the above submissions and observations, the Committees make the following recommendations;

  1. Clause 2 - objectives of the Bill should clearly describe its provisions.
  2. Clause 3 - The Bill should be amended to improve on definition of terms as they should be clearly defined.
  3. The need to split the Bill into two; namely the Cyber Security Bill and Data Protection Bill.
  4. Clauses 5-8 should establish an independent body which is set up as the Cyber Security Centre and Data Protection Authority instead of POTRAZ being the Cyber Security Centre and Data Protection Authority.
  5. Clause 31(1) of the Bill should be amended, to have a clause that guarantee the protection of whistle-blowers in terms of handling investigations.
  6. The Bill should be amended and have a clause that provides for the right to oblivion, that is the right for deleting information and records of the past in the cyber space, and clearly spell out the data retention period.
  7. That the Bill should be amended to include a stand-alone clause that recognises the rights of data subjects which are enshrined in the Constitution namely;
  8. right to personal security (Section 52), ii. right to dignity (Section 51),  iii. right to privacy (Section 57),   iv. right to petition and demonstrate (Section 59) and
  9. the right to freedom of expression (Section 61).
  10. That Clause 19 should be amended to include the time under which security breach should be notified.
  11. The Bill should strike a balance between the protection of national security and the exercise of rights of ordinary individuals.
  12. Clause 164E of the Bill should be amended to include the terminology that criminalises up-skirting and recording of nude images without a person’s consent.
  13. Clause 165 on child pornography should take into cognisance offences relating to child sexual abuse materials such as using social media to lure minors for the purposes of exploitation.

6.0 CONCLUSION 

The introduction of the Cyber Security and Data Protection Bill is welcomed as it is drafted to apply to all sectors of the economy. It will put in place one of the final pieces of much needed data protection reforms. The Bill is a baseline legislation that will operate concurrently with other legislation. Effective modern data protection laws are central to securing public trust and confidence in the use of personal information within the digital economy and the fight against cybercrime. Members of the public have raised many different scenarios about the protection of individuals. However, Government must strive to ensure a proper balance on how best to use the proposed Bill to effect a positive outcome for the public and the private sector.  I thank you.

HON. SEN. CHIEF CHARUMBIRA:  On a point of order Mr.

President.  My point of order is in respect of the way we have proceeded on this Bill that the Minister presented. We started debating before the Committee report. Surely the Committee Report is intended to inform the Members as to what issues arise from the Bill.  So, some of us debated without knowing what the public said.  Our debate should be informed by what the public said.  I think that should be corrected in future. In fact, if the report by the Committee was not yet available, what should have happened, we should have been asked whether we object to proceed without a Committee report or not.  That is the procedure and some of us feel shortchanged because there is a lot of beneficial information which came from the public that I would have used in my debate.  Thank you.

THE HON. DEPUTY PRESIDENT OF SENATE: Thank you

Hon. Sen. Chief.  I agree with you, that is the ideal situation and we should have proceeded that way but I am told that the Chairperson of the Committee was not ready that time when we started but I agree with you.  We should discuss the Committee report first and that input is supposed to be used to debate what the Minister presented.  I agree with you totally.  You have the opportunity during the Committee Stage to debate other issues.

*HON. FEMAI: Thank you Mr. President, I want to add my voice

to this Bill. There is an issue that I think should not just end on social media.  A person who writes on social media is the one who is considered guilty but also there is a saying that says if it does not rain, the grass will not grow, the grass has to wait for the rain for it to grow.  So, social media is there to allow people not to tell the truth and it then spreads, that is what is happening.  Whoever is responsible for social media to pick this and run with it, should also be brought to book.

Politicians are also not truthful, especially when they get to a crowd of more than 30 000 people, they will say so and so is a sellout.  Social media can actually write to say that certain individuals are sellouts.  So, the first person who has quoted that should be brought to book so that there is stability and not to have a blame game. If you say that these people are thieves, people will have an opinion that all these people are thieves.  So we want those issues that are said during gatherings to be looked at. There is need to also look at people who would have said these dishonest statements because that brings stability in the nation.  I thank you.

(v)HON. SEN. TONGOGARA: Thank you Mr. President, a lot of

the things have already been said by my fellow senators.  Mr. President I have realised that this Bill is very important.   It came in 2019 and 2020 it was quiet but I want to thank the Minister for bringing this Bill this year.  There are people who are impersonating other individuals and they were left like that but I have noticed that the Bill has whistleblowers.  These are people who will assist in bringing to the relevant peoples’ attention what is happening.  So, the whistleblowers are there to bring this information and it should be checked as to whether the information is authentic.  Some people  talk just to tarnish the image of other people I am sure you heard Chief Charumbira talking about his experiences with social media. I am really delighted that the whistleblowers are assisting and that they are in the Bill to bring out information that is not open to everyone. On the issue of penalties – one is subjected to level 5 penalties. They should explain to us what they mean when they say fine not exceeding level 7 because most of us do not know what level 7 is talking about.

I think we need mandatory sentencing that a person will pay a certain amount in terms of a fine so that when a person commits the crime, they know what they are up against in terms of penalties. I think on the two years that are being explained, they are too lenent because the damage that will have been done on the individual is grave because it destroys a person’s integrity and dignity and a person’s name is tarnished for life. I think that needs to be explained and we need to work together as part of a global village to ensure that there is protection. I think two years is inadequate. So, I am advocating for deterrent penalties, having a mandatory sentence that will prevent a person from committing the same crime. Social media has been spreading a lot of untruths and we are all aware of it. Thank you for giving me this opportunity Mr. President.

+HON. SEN. D. M. NDLOVU: Thank you Mr. President for the

Bill that has been tabled today because there are a number of issues that we wanted because it makes people work easier like when people are fishing using the net. However, it catches a lot of creatures that are found in the dam. In the past, there was a respectful way of dealing with matters for a respectful member, for example Hon. Chief Charumbira. You find that a person is the President or Member of Parliament or he is a chief and he is put on WhatsApp. You find that person’s photo is photo-shopped as the chief, followed by a snake or being a dog. At the end, it denigrates the chief or the respective member.

Young people end up being disrespectful to the Member. I concur that people who do such things should be incarcerated. We also have WhatsApp and because of this technology, you find there are audios that are recorded by old people and they will be laughing, sort of enjoying without taking note that this small thing may kill the nation. It is like taking poison putting a drop of it into water. At the end, it kills everyone. I am appealing that these members of society should be imprisoned.

However, you will also find that after debating, I will be the first person going outside encouraging the masses to write about Hon.

Mavetera and they start forwarding to different members, deforming the Hon. Member.  At the end, you will find people talking bad about this Hon. Member. This has destroyed our ubuntuism. It pains me mainly when this is directed to leaders of society because these people who are making noise in South Africa, the matter emanated from this social media because they were forwarding these messages until it was captured by criminals who started to criminalise and do everything wrong against the nation. I am totally in support of this Bill because it will avoid defamation of character. For example, you find that they will create a twitter account for Hon. Sen. Chief Charumbira and start saying a lot about him when in actual sense he does not have a twitter account. Let us support this Bill as Senators because we are elders, so we avoid broadcasting lies. These are deliberate lies. These are lies that are intended to defame someone so that the person is denigrated.  Thank you Hon. President for these few words.  I encourage that social media should not be a fish net which catches everything.  Thank you.

THE MINISTER OF INFORMATION COMMUNICATION TECHNOLOGY, POSTAL AND COURIER SERVICES (HON.

  1. MUSWERE): Thank you Mr. President. In response to Hon. Sen. Mavetera, the whole idea of this Bill is to ensure that there is safe and secure utilisation of ICTs in the cyber space.  In the context of the fourth industrial revolution, everything revolves around Information

Communication Technology.  You will realise Mr. President that even if a person wants to go to church, what you just need is your computer and data.  If you want to go to school, you just need the computer and an internet connection.  If you want to do shopping, the same applies.  Even if you want to have a meeting, the same applies.  Now, you can even

roora” using virtual methodologies – [Laughter.] – Through payments

I mean. Mr. President, you can now make your payments electronically.  You can even use Ecocash, One Money, Telecash to transact.  You do not necessarily need to go to the bank.  Everything now revolves around Information Communication Technology.

What this Bill seeks to do is to plug cyber and data crimes.  This Bill seeks to create a safe environment for the business community and the public.  At the same time, this Bill also seeks to ensure that criminal activities in the cyber space are dealt by with the law.  In fact, it ensures that there is admissibility of electronic evidence within the courts of law.

Mr. President, in response to Hon. Sen. Chief Charumbira, this Bill is good for protecting the business people and also to ensure that all those who misbehave are dealt with.  What we want is for the fourth industrial revolution to be protected.  We want this technology to be used for safety and security of the citizens of Zimbabwe.

This Bill will be dealing with all the unscrupulous individuals in this country, especially those who use technology to defraud people and steal depositors’ monies from the banks.  Like Hon. Sen. Chief Charumbira said, your image can be tarnished by false information on social media.  Section 164 (g) deals with identity related offences.  It provides that any person who unlawfully and intentionally by using a computer or information system acquires, transfers, possesses or uses any means of identification of another person with the intent to commit or to assist in connection with the commission of an offence, shall be guilty of an offence and liable to a fine not exceeding level 10 or imprisonment for a period not exceeding five years, or to both such

fines.

*So, I believe that this legislation will deal with the unscrupulous individuals who defraud certain people’s characterS.  Section 164 (C) also talks about all those who spread bad things using other people’s names will be dealt with by the law.  It provides that transmission of false data messageS intentionally by means of a computer or information system; makes available, broadcasts or distributes data to any other person concerning an identified or identifiable person knowing it to be false with intent to cause psychological or economic harm, shall be guilt of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

I want to respond to Hon. Sen. Mabika. She also mentioned about protection of the dignity and integrity of the people, especially women who are abused by social media platforms.  Section 164 (a), 164 (b), 164 (c) and 164 (e), talk to the transmission of data messages, inciting violence or damage to property.  That is part two of the Bill.  Section 164 (a) says, any person who unlawfully and intentionally by means of a computer or information system sends any data message to another person threatening harm to the person or the person’s family or friends or damage to property of such persons shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and imprisonment.

Section 164 deals with cyberbullying and harassment.  If any person generates or sends any data messages to another on any electronic medium accessible by any person with the intent to coerce, intimidate, harass, threaten, bully or cause substantial emotional distress or degrade, humiliate or demean the person or to encourage a person to harm himself or herself shall be guilty of an offence and liable to a fine not exceeding level 10 or imprisonment for a period not exceeding 10 years or both.

I believe I once talked about Section 164, which involves those who broadcast falsehoods and spreads malicious rumours through a gadget.  They will be liable to a fine not exceeding level 10 or imprisonment for a period not exceeding 5 years or both.  This provision is coming to protect the citizens.

On the issues raised by Hon. Sen. Komichi in terms of journalists in the cyber space, there has been a lot in the global village in terms of cyber attacks.  We ought to ensure that in terms of the objectives of the Ministry, principally we are there to ensure that there is utilisation of ICTs, there is access to ICTs and there is also economic growth in the entire ICT sector and also principally, that is governed within the cyber space.  So, the whole idea is to ensure that there is proper governance and if we talk of governance, we should legislate to protect the citizens and the business.  All these other issues are dealt with by this Bill.  I can go to Section 164 (e) on the transmission of intimate images without consent.  Any person - subsection 1, “who unlawfully and intentionally by means of a computer or information system makes available, broadcast or distributes any data message containing any intimate images of an identified person without the consent of the person concerned, causing humiliation or embarrassment of such person shall be guilty of an offence and liable to a fine not exceeding five years or to both such fine and imprisonment”.  For the purposes of subsection 1, intimate images, means a visual depiction of a person made by any means in which the person is nude, either it is naked female breasts which are exposed or sexual acts which are then conveyed through any media.

         Mr. President, in terms of the media space, I am sure we are all aware that it is being opened up.  This Bill will not be used to victimise any political party.  The law is democratic and seeks to strengthen the utilisation of ICTs to international best practice.  Certainly, Zimbabwe is open for business, therefore, investors will be encouraged.  In terms of the social media space, I am sure I have dealt with it in terms of Section 164.  This is with reference to Hon. Kalipani, Section 164: 164 (a), 164 (c) to 164 (f), probably in terms of the abuse of social media, this law then brings sanity in this particular area.  People should probably focus more on economic activities than abusing each other on social media platforms.

The law is there to regulate and ensure that there is technological advancement in this particular area.  To Hon. Sen. Chief Makumbe, he mentioned about the issue of revenge pornography and also spreading lies.  Section 164 (e) and I have elaborated on that part.  Maybe I can repeat so that you can then understand.  Section 164 (e) deals with the transmission of intimate images without consent.  If people were in love, the issue of revenge pornography is dealt with in this section. “makes available, distribute or broadcast any data messages, containing any intimate image of an identified person without the consent of the person concerned, causing the humiliation or embarrassment, shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and imprisonment”.

Subsection 2, defines what an intimate image is, I have already explained that as well.  Hon. Sen. Chief Makumbe also talked about the abuse of social media to denigrate one another.  That is addressed under

Section 166 (b).  In terms of admissibility on electronic evidence, in any criminal proceeding, for an offence in terms of this Bill, evidence generated from a computer system or by means of Information and Communication Technologies, or electronic communication systems shall be admissible in a court of law.  Subsection 2 says, in assisting the admissibility or evidence, evidential weight of the evidence, regards shall be given to the reliability to the manner which the evidence was generated, stored or communicated.  The integrity, that is (b) of the manner in which the evidence was maintained; (c ) the manner in which the originator or recipient of the evidence was identified and any other relevant facts.  The authentication of electronically generated document shall be as prescribed in rules of evidence, regulating the integrity and correctness of any document presented as evidence in a court of law.

Subsection 5 says, this section shall apply in addition to Subsection 2 and not in substitution of any other law in terms of which evidence generated by computer systems are restrictive on electronic system or device may be admissible in evidence.  Section 166 ( c) also deals with the forfeiture, a court convicting any person of an offence under this particular Act, may order the forfeiture to the effect of “(a) any money, asset or property constituting or traceable to the gross proceeds of such offence and any computer or information system software or other devices used or intended to be used to commit or to facilitate the commission of such an offence”.

Mr. President, let me also then respond to the Committee’s report by Hon. Sen. Dr. Parirenyatwa.  Most of the issues that have been presented by Hon. Parirenyatwa have been incorporated into the Bill in the National Assembly.  Certainly, the Cyber and Data Protection Bill seeks to build the confidence and trust in utilisation of ICTs.  It is not there to impede technological growth in the country.  The Cyber Security Centre, which we spoke about, will remain with the security and the data protection will go to POTRAZ. In terms of sensitive data, it will be dealt with when we put the amendments.

If it pleases you Mr. President, I can now go through the definition of sensitive information and we did an amendment clause to the Bill.  On page 9 of the Bill, Line 60 will be deleted and Clause 13 and to substitute it with sensitive data being Subsection 1, no data controller shall process sensitive data unless the data subject has given consent in writing for such processes.  Subsection 2, the consent to the processing of data may be withdrawn by the data subject at any time and without any explanation, free of charge.  Subsection 3, the authority shall determine the circumstances in which the prohibition to process the data referred to in this subsection (1) cannot be lifted even with the data subject’s consent taking into account the factors surrounding the prohibition and reasons for collecting the data.

In terms of whistleblowing, whistleblowers are protected by the laws of the country and in particular the Constitution.  In terms of intimate messages, these have been dealt with in Section 164 of the Bill and amendments have been done.  It will now also incorporate UpSkirting.  The clause of child sexual abuse which is Section 165 has already been amended Hon. Parirenyatwa.  Any person who unlawfully and intentionally, through a computer or information system produces, it is no longer pornography, it is now child sexual abuse or offers or makes available child pornography; it has now changed to child sexual abuse and all these other areas, or who distributes or transmits child pornography, it is now child sexual abuse.  All this has been corrected in terms of the Bill.

Hon. Sen. Tongogara also discussed about the abuse of social media.  Mr. President, I can also go through the same responses if it is okay with you so that people get clarity on clause by clause basis.  On the transmission to false messages intending to cause harm, that is dealt with in terms of Section 164 (c) which is “any person who unlawfully and intentionally by means of a computer or information system makes available broadcast or distributes data to any other person concerning an unidentifiable or identifiable person knowing it to be false with intent to cause psychological or economic harm, shall be guilty of an offence and be liable to a fine not exceeding level 10”.  Hon. Sen. Tongogara had said it is two years, no.  It is actually level 10 or to imprisonment for a period not exceeding five years or to both such fines and such imprisonment.  Section 164 (e) also deals with the transmission of intimate images without consent.  Section 164 (f) also deals with the production and dissemination of racist and xenophobic material.  I hope I have answered you all Hon. Senators.  Thank you Mr. President.  I now move that the Bill be read a second time.

Motion put and agreed to.

Bill read a second time.

Committee Stage:  Wednesday, 28th July, 2021.

On the motion of THE MINISTER OF INFORMATION

COMMUNICATION TECHNOLOGY, POSTAL AND COURIER

SERVICES (HON. DR. MUSWERE), the Senate adjourned at Twenty

minutes to Five o’clock p.m.

 

 

 

 

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