Following a High Court ruling that said it is illegal for spouses to pry into each other’s cellphones without permission, lawyers and marriage counsellors have said that the ruling is not workable in a “proper” marriage set-up.
Last week, High Court judge Justice Tawanda Chitapi ruled that evidence obtained through prying into a cellphone should not stand in court as it would have been obtained illegally.
Justice Chitapi made the ruling as he sentenced Fortunate Nsoro of Chitungwiza to 10 years in prison for knifing her husband to death after he refused to show her a text message that he had received on his cellphone.
The judge 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 communication infringed.
According to Justice Chitapi, there is no law which provides that a husband or wife has a right to infringe on the privacy of the other’s communications.
In a related case, an enraged woman recently approached the civil courts seeking a protection order against her husband whom she was accusing of failing to respect her privacy by going through her phone.
Monica Muzanenhamo said she was not comfortable with her husband, Prince Boshe’s habit of going through her mobile phone.
“Whenever I go to bath, he takes away my phone and goes through it. He even starts calling some of my contacts and this is so embarrassing. Whenever we have an altercation, it is because he would have gone through my phone,” Muzanenhamo said.
Although some of the people interviewed by this publication welcomed the ruling, saying it protects the privacy of individuals, the majority questioned if the ruling is applicable in marriage.
Most disputed the judge’s assertion that the cellphone has been the cause of most matrimonial quarrels and domestic disputes.
Instead, they argued that issues to do with infidelity and mistrust are major sources of domestic violence with the cellphone only playing a minor role.
Lawyer Coddy Nyamundanda said the ruling was correct since it was backed by constitutional provisions.
He, however, said the ruling might not be applicable in a marriage set-up.
“I am a bit worried about the extent that the ruling can be applied in the marriage set-up. To me, it is tantamount to saying that a wife should not ask where her husband was the whole night (if he had slept out) because that is a constitutional infringement of the man’s right to movement or association,” Mr Nyamundanda said.
Added Mr Nyamundanda: “Surely a marriage which involves high levels of intimacy should not be treated as a union of strangers who have just met.”
But Mr Nyamundanda said the law must still take its course.
“At the end of the day, without any legislative changes, the law remains the law and the judge was simply executing his duty. Fair and fine, this might be a clear example of how difficulties might arise if we are to compare the law versus morality,” he said.
Pastor Winnet Zimambo, a marriage counsellor, said the phone is not the root of the problem but issues to do with infidelity and mistrust are.
“If one does not have anything to hide, why would that person be agitated if his or her partner goes through their phone? Under normal circumstances, a spouse will not bother to check on their partner’s phones. Issues to do with suspicion and mistrust results in spouses eavesdropping on one another,” Pastor Zimambo said.
Marriage counsellor, Apostle Langton Kanyati of Grace Unlimited Ministries International said the judge was merely interpreting the law.
“The judge’s duty is to interpret the law. The Bible says the two shall be one and, therefore, should not have secrets. The problem is not the phone but keeping secrets. Secrets end up inflaming mistrust in marriages, resulting in eavesdropping,” Apostle Kanyati said.
He said the ruling will create more challenges in some families.
“It depends with how people will take it. Spouses with secrets will be excited and use the ruling as a weapon. The church must teach families to be open and to trust each other. I know that at times, we need to give our spouses space but if that space destroys the marriage institution, then it becomes a problem,” said Apostle Kanyati.
Television host and marriage counsellor, Dr Rebecca Chisamba said couples with skeletons in the cupboards are the ones that are concerned about their partners eavesdropping on their phones.
“If such issues crop up in a marriage, it is a clear sign that all is not well in that family. When a couple is in love and trust each other, such trivial things like answering phone calls and messages are not issues. We do not need to be told by the court how to handle such small issues,” Dr Chisamba said.
Commenting on the ruling in our sister paper The Herald, Zivai Ndlovu echoed the same sentiments.
“A cellphone is merely a tool of communication. It can never be the cause of marriage breakdowns. Suspicions, mistrust and infidelity are the issues that couples need to address, not cellphones. The judgement is merely asserting individual rights to privacy, where a spouse would demand and or use under-hand tactics to access the contents of your mobile phone without your consent.”
“If you provide that access voluntarily, well and good; but by hook and crook, no. Cellphone or no cellphone, couples cheat on each other,” wrote Ndlovu.
However, Mary Taumbwa who was writing from Mutare differed from Ndlovu.
“This is an important ruling. As enshrined in the Constitution, every Zimbabwean has a right to privacy. This must be respected regardless of the relationship. People must learn to respect each other and treat their partners as they wish to be treated,” Taumbwa wrote.
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