The net effect of the failure to provide statutory mechanisms to control or limit the exercise of the power conferred
by the Act on the President leads to an unfettered discretion to intercept mail and communication. The impugned
sections provide no guidance as to what a citizen should not do to avoid conduct that might lead to the exercise of
the powers conferred by the impugned sections. The Act provides no legal recourse or safeguard for the innocent.
The Act does not provide any mechanisms for accountability. Similar legislation in other jurisdictions provides or is
required to provide, for prior scrutiny, independent supervision of the exercise of such powers and effective
remedies for possible abuse of the powers.5 The Act provides for no such safeguards.
The issue here is not that the powers have been abused or are likely to be abused by the President but rather that
there are no mechanisms in the Act to prevent such an abuse. In the absence of such limitations and control
mechanisms the powers conferred on the President are too broad and overreaching to be reasonably justified in a
democratic society. The impugned sections, as I have already stated, are so vague that the citizen is unable to
regulate his conduct in such a way as to avoid the interception of his mail or communication. Thus, in this regard,
the impugned sections of the Act are too vague and do not satisfy the constitutional requirement of
provided by
law .6
In the result the application succeeds and sections 98(2) and 103 of the Postal and Telecommunications Act [Chapter
12:05] hereby declared unconstitutional and are struck down. The costs of this application shall be paid by the
respondents, jointly and severally, the one paying the other to be absolved.
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