admin
HARARE High Court judge Justice Tawanda Chitapi’s landmark ruling that it is illegal for spouses to pry into each other’s cellphones without permission is interesting and will generate debate beyond the legal chambers for the foreseeable future.
In a digital age in which information communication technology has permeated every facet of society, the High court ruling will have far reaching ramifications for the conduct of couples most of whom have had quarrels over their privacy with regards to cellphones. Indeed the courts are inundated with cases of divorce emanating from evidence obtained through snooping into cellphones of one spouse by another and we pray that the judge’s ruling will help reduce these cases instead of inflaming tensions in the home and breeding suspicions.
Justice Chitapi, in a ruling delivered as he sentenced Fortunate Nsoro, 36, of Chitungwiza for knifing her husband to death for refusing to show her a “suspicious” text message that he had received on his phone, said evidence obtained through prying into a cellphone should not stand in court as it would have been obtained illegally.
The judge convicted Nsoro of culpable homicide and sentenced her to 10 years in jail for fatally stabbing Petros Mutasa, 55, in February last year while their daughter, 8, watched. In his ruling, Justice Chitapi said snooping into someone’s phone contravenes section 57 (d) of the Constitution which guarantees every person the right not to have the privacy of their communications infringed.
“There is no law which provides that a husband or wife has a right to infringe on the privacy of the other’s communications. Whatever message which the deceased received was not intended for Nsoro otherwise Mutasa would have conveyed the message to her. She (Nsoro) simply could not respect her husband’s right to privacy,” said Justice Chitapi.
“Nsoro’s insistence that Mutasa should divulge a communication made to him on his phone was in itself an infringement upon his right to privacy of communication,” said the judge. Justice Chitapi said Mutasa was lawfully entitled to refuse to divulge the message he had received on his phone to his wife. “In a way by insisting that Mutasa divulges the message, Nsoro was the cause or torched the altercation which ended up with disastrous consequences. It is the court’s view that society should learn to respect privacy of communications.
Many a time, the cellphone has been cause of matrimonial quarrels and domestic disputes because couples do not respect each other’s rights to communications made or received,” said the judge.
Justice Chitapi said the courts continued to be inundated with cases involving spouses invading the private communications of the other.
“This practice should be deprecated as it amounts to investigating or eavesdropping on one another. Usually spouses who do this will be aiming to find evidence of wrongful conduct by the other. Eavesdropping on another’s cellphone is evidence of lack of trust in that other person and the courts are flooded with cases where couples or spouses seek to prove wrongful conduct by the other using evidence in the form of messages retrieved from another spouse’s phone,” he said.
We note Justice Chitapi’s ruling and concede that the right to privacy is enshrined in the supreme law of the land — the Constitution. We also agree with the learned judge that there is no law which provides that a spouse has a right to infringe on the privacy of their partner’s communications.
However, we respect the institution of marriage and hold dear the vows that a couple swears to abide by when they are joined in holy matrimony. In Ephesians 5:22-33 the Bible says, “For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh.”
In Matthew 19:4-6 , the Holy Book notes, “that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’. So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”
Reading from these scriptures, it is clear that a man and a woman are regarded as one in the eyes of the Lord and an entity cannot have secrets from itself. We contend that as much as two people in a marriage are entitled to their privacy, it is important to maintain a modicum of trust to dispel suspicions.
In as much as it has not been proven that social media platforms such as WhatsApp, Chat, Instagram, Twitter and Facebook have contributed to moral decadence and illicit affairs, we note with concern the rising numbers of divorce cases attributed to affairs conducted via these media.
Whether they are fuelling immoral behaviour is a matter left to conjecture but what is clear is that social media is killing interpersonal relationships and is a serious threat to the institution of marriage and its sacred vows.
In the case of Nsoro and Mutasa, we respectfully argue that even though Mutasa was entitled to his privacy, he wouldn’t have risked his life over an innocent message.
Online Reporter
derick.khumalo