The High Court in Lilongwe, sitting as Constitutional Court, on Friday ruled that Malawi Communications Regulatory Authority (Macra)’s decision to ban broadcast of radio phone-in programmes prior to the 2019 General Election was irregular and unlawful.
Three presiding judges – Justice Chifundo Kachale, Justice Charles Mkandawire and Justice Anabel Mtalimanja, also rebuked the decision of the then Information Minister to promulgate regulations, that led to the banning of phone-in programmes in selected radio and TV stations, saying the act was illegal and did not follow procedures.
National Media Institute of Southern Africa (Namisa), Times Group, Zodiak Broadcasting Station and Capital Radio sought the court’s intervention and declaration that Macra’s decision “violated constitutionally-guaranteed freedom of the press and freedom of expression.”
Reading the ruling on behalf of his colleagues, Justice Kachale said the court’s decision was unanimous, as after examining facts presented, it found that the process lacked consultation, as in tandem with the law.
He also said the court found that all persons and officials are subjected to the law, without exceptions.
“There is no evidence that Macra made consultations as specified by the law,” Kachale ruled, adding that “Macra failed to exercise in the right way and according to [existing] laws”.
The court observed that the public announcement that the institution advertised was also illegal and lacked legal basis. Equally, the promulgation by the minister was also irregular and illegal, hence condemned the same.
The court also ordered Macra to pay all costs related to the case.
Macra suspended all phone-in programmes on June 7, 2019, citing unprofessionalism on the part of broadcasters.
The court also faulted the then Director General of Macra, Godfrey Itaye for making the directive to stop the said programmes, saying he did not have the authority; in addition to not disclosing [citing] the relevant provision of the Act.
“The Director General of Macra is not empowered to make decisions on behalf of the Authority [Board]. The DG is for the day-to-day running of Macra administration and not to make policy decisions like he did,” Kachale ruled, saying even when there is provision of delegation, there was no evidence of such delegation in the present case.
On the promulgation by the minister, the court said that was only supposed to be done after recommendation by Macra [Board]; and there was no evidence that interested parties were consulted as the law says.
“There must be consultations and the outcome of such consultations needs to be made public. It was wrong for Macra to downplay the legal requirement,” Kachale said.
Lead lawyer for applicants, John Suzi Banda said he was excited with the judgement, saying the court had since confirmed reasoning of his clients that Macra constitutionally erred in banning phone-in programmes, as it acted not in tandem with the law.
“In quashing the decision of the minister and his conduct to promulgate, the ConCourt has reminded public officers [ministers inclusive], to follow the law, and act in accordance with the law and not out of it,” he said.
Counsel for Macra, Innocent Kadammanja said he will discuss the ruling with his clients.
“We respect the ruling and we will map the way forward when I get to the office, and discuss it with authorities,” he said.
Reacting to the court ruling, Misa Malawi Chairperson Tereza Ndanga said the organization consider the ruling a victory for media freedom and freedom of expression.
Capital Radio Managing Director Alaudin Osman said the case should remind all public Institutions that they are not above the law.
“The court ruling is a wake-up call for all situations; that the country has a vibrant judiciary that is helping to maintain law and order in the country,” Osman said.
According to Osman, it is high time that public institutions such as Macra went back to the drawing board on how they are handling issues to do with private media.
Zodiak Broadcasting Station Managing Director Gospel Kazako said the ruling is a plus in as far as media freedom is concerned.
“We are pleased the court has ruled in our favour and we have an obligation to provide a platform for the society to express themselves, freedom of expression is not negotiable,” Kazako said.
Since the advent of multiparty democracy in the country, the number of private media houses in the country has grown remarkably, with most radio stations according Malawians to speak their mind through phone-in programmes.