The Malawi Communications Regulatory Authority (Macra) Board of Directors has resolved to refer the issue pertaining to the vacation of a court injunction against Multichoice Malawi (MCM) to the office of the Attorney General (AG).
This is contained in a legal brief which The Daily Times has seen.
It has been signed by Macra Board Chairperson Stanley Khaila and was adopted by the board on Saturday.
Among other things, the board’s brief addresses the issue of the legality of a general direction issued by the Minister of Information and Digitalisation on August 24 2023.
Last week, Information Minister Moses Kunkuyu directed Macra to vacate a subsequent injunction obtained against MCM for allegedly adjusting its tariffs without prior approval of the authority, as stipulated under Section 74 of the Communications Act.
However, Kunkuyu told The Daily Times that he is yet to receive the resolutions.
“I have not seen the report yet but what I can say is that leadership demands doing what you, as a leader, believe is in the best interest of many, not a few. The success of any country that does not have the muscle to challenge every battle rests on its leaders’ ability to choose which battles to fight and when to fight them. There are battles we should fight today and there are battles that can wait. We have a country to run. Let’s wait and see,” Kunkuyu said.
However, the board is arguing that the minister’s decision came at a time there was a pending judicial review case before the High Court on the same issue of MCM adjusting tariffs without Macra’s prior approval.
According to the resolution, the direction by the minister instructing Macra to vacate the injunction obtained against MCM is of concern from a legal perspective.
The board observes that once an injunction is obtained through due legal processes, it is generally binding until it is varied or discharged by the court.
“The minister’s direction to vacate the injunction obtained by Macra appears to be contrary to this procedural principle. Such a direction raises questions regarding the minister’s authority to instruct a regulatory body to disregard or override lawful court orders. This raises concerns about the separation of powers between the Executive and the Judiciary,” the resolution reads.
On whether the minister has acted ultra vires in this regard, the board has said the Communications Act empowers the minister to give general directions to the authority but not specifically to target individual enforcement actions or judicial processes, which are operational matters.
In addition, it says, the minister can only issue such general directions upon request by Macra, further indicating that general directions that have not been solicited by Macra run counter to Section 5 of the Act.
On August 3 this year, MultiChoice Africa Holdings (MAH) B.V. announced that it had withdrawn its DStv services from Malawi, bringing to an abrupt end over 30 years of romance between Malawians and the pay television platform.
The decision followed a ruling by the High Court in Lilongwe, where it issued an injunction— in the matter between MCM and Macra— that stalled adjustments to DStv tariffs.
The withdrawal of DStv services came days before the start of the 2023 football season in major European leagues such as England, Spain, Italy, Germany and Portugal.
Most Malawians have, for the past three decades, heavily relied on DStv to watch football games.
In a statement, MAH B.V. noted that MCM does not offer the DStv service to the public and that it can, therefore, not set or adjust tariffs for this service, a point it claims to have repeatedly made to Macra.
“As a result, the order handed down to MCM is incapable of being implemented by them but carries with it grave consequences for the directors and management of MultiChoice Malawi, including imprisonment.
“MAH, given the impact on its supplier (MCM) and an increasingly adverse regulatory environment, is therefore left with no option but to terminate the DStv service indefinitely,” the statement reads.
