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, obtained an injunction last month stopping Macra from implementing the Spy Machine.
The action followed the High Court’s ruling which threw out TNM’s application made on March 27, 2015, that questioned Macra’s procedure in using a US-based company, Agilis International, to implement Cirms on behalf of the Authority.
In the case, TNM is arguing that the involvement of the US-based implementer of the machine would violate its clients’ privacy.
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’s lawyer Ted Roka to be specific on the points he wanted the court to address.
“Mr. Roka can you please make us understand these issues. We want to follow your arguments,” Mwaungulu said at some point.
Roka was arguing against the court granting leave for judicial review. He reminded the court that Malawi’s laws allow Macra, as the telecommunications regulator, and telecom service operators to go for arbitration before seeking court guidance.
“There’s an alternative remedy by the way of arbitration. The license provides that whenever there’s a dispute between Macra and TSP [telecommunication service providers], they must resort to arbitration,” he said.
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.
“The 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.
“The court gave Macra a go ahead to implement the machine and there’s a proper legal framework for the implementation. So, this issue is [a repetition] and TNM cannot reopen it,” said Roka.
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.
“I am caught between a rock and hard place,” 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.
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.
“The 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.
“The Supreme Court touched on these issues but it had no opportunity to look on the framework we the operators are operating from,” Mpaka said.
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.
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’s behalf.
On this point Mpaka argued that no one in the country has any relationship with the foreign company “but 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.”
Mpaka wondered if that would be possible with a foreign company and added: “Is that the proper way of implementing this project?”
In 2014, the same court ruled in favour of Macra to implement Cirms but now TNM is questioning the procedure.
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