The Malawi Communications Regulatory Authority (Macra) had tough time Wednesday when it responded to questions from a panel of three Supreme Court of Appeal judges following an application TNM filed seeking a judicial review on the implementation of the Consolidated ICT Regulatory Management System (Cirms), popularly known as Spy Machine.<\/p>\n
Mobile telephone service provider, TNM, obtained an injunction last month stopping Macra from implementing the Spy Machine.<\/p>\n
The action followed the High Court\u2019s ruling which threw out TNM\u2019s application made on March 27, 2015, that questioned Macra\u2019s procedure in using a US-based company, Agilis International, to implement Cirms on behalf of the Authority.<\/p>\n
In the case, TNM is arguing that the involvement of the US-based implementer of the machine would violate its clients\u2019 privacy.<\/p>\n
Hearing of the matter, which started on Tuesday and was concluded yesterday in Blantyre, saw justices Dustain Mwaungulu, Jane Ansah and Frank Kapanda urging Macra\u2019s lawyer Ted Roka to be specific on the points he wanted the court to address.<\/p>\n
\u201cMr. Roka can you please make us understand these issues. We want to follow your arguments,\u201d Mwaungulu said at some point.<\/p>\n
Roka was arguing against the court granting leave for judicial review. He reminded the court that Malawi\u2019s laws allow Macra, as the telecommunications regulator, and telecom service operators to go for arbitration before seeking court guidance.<\/p>\n
\u201cThere\u2019s an alternative remedy by the way of arbitration. The license provides that whenever there\u2019s a dispute between Macra and TSP [telecommunication service providers], they must resort to arbitration,\u201d he said.<\/p>\n
Roka further said Macra already requested some information from TNM, which the mobile phone company already provided, which, he argued, makes the application for judicial review an academic matter.<\/p>\n
\u201cThe Supreme Court has dealt with this issue before [in the case of the State versus Hophmally Makande and Erick Sabwera] and the court acted on the issues which the applicant is raising today.<\/p>\n
\u201cThe court gave Macra a go ahead to implement the machine and there\u2019s a proper legal framework for the implementation. So, this issue is [a repetition] and TNM cannot reopen it,\u201d said Roka.<\/p>\n
However, Kapanda and Mwaungulu asked if the matter he was raising was not suitable for judicial review, considering that the issue before the court was drawing more conflict between the two parties.<\/p>\n
\u201cI am caught between a rock and hard place,\u201d replied Roka and repeated his earlier sentiments of a legal framework which Macra and operators can use for arbitration if there is a dispute among them.<\/p>\n
In his arguments, lawyer representing TNM, Patrick Mpaka, said in the decision of the Supreme Court delivered in the Macra versus Hophmally Makande and Erick Sabwera case, telecommunication service providers were neither sued nor represented.<\/p>\n
\u201cThe telecom operators have licenses which are issued by the regulator. Among other things, those licenses set out some public service obligations on the part of operators and if they fail to meet those duties, any member of the public can take the operators to task.<\/p>\n
\u201cThe Supreme Court touched on these issues but it had no opportunity to look on the framework we the operators are operating from,\u201d Mpaka said.<\/p>\n
He further said if the case goes for arbitration, there will be some limitation on accessing the information, hence the public will not understand how the machine is being implemented.<\/p>\n
Macra, which bought the machine at USD6.8 million, argues that it does not have the technical capacity to operate the system, hence the decision to contract Agilis International to operate it on the Authority\u2019s behalf.<\/p>\n
On this point Mpaka argued that no one in the country has any relationship with the foreign company \u201cbut will have access to our private information in the course of carrying out the project. So, the question that we are raising is that, should that be the case, we have a public institution which we can question using our legal framework.\u201d<\/p>\n
Mpaka wondered if that would be possible with a foreign company and added: \u201cIs that the proper way of implementing this project?\u201d<\/p>\n
In 2014, the same court ruled in favour of Macra to implement Cirms but now TNM is questioning the procedure.<\/p>\n","protected":false},"excerpt":{"rendered":"
The Malawi Communications Regulatory Authority (Macra) had tough time Wednesday when it responded to questions from a panel of three Supreme Court of Appeal judges following an application TNM filed seeking a judicial review on the implementation of the Consolidated ICT Regulatory Management System (Cirms), popularly known as Spy Machine. Mobile telephone service provider, TNM, […]<\/p>\n","protected":false},"author":3,"featured_media":16936,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-16932","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/posts\/16932","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/comments?post=16932"}],"version-history":[{"count":1,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/posts\/16932\/revisions"}],"predecessor-version":[{"id":16937,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/posts\/16932\/revisions\/16937"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/media\/16936"}],"wp:attachment":[{"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/media?parent=16932"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/categories?post=16932"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.times.mw\/index.php\/wp-json\/wp\/v2\/tags?post=16932"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}