Spy machine judicial review rejected: Malawi High Court turns down TNM bid

The High Court in Zomba has dismissed an application by Telkom Networks Malawi (TNM) for a judicial review on matters surrounding the implementation of the Consolidated ICT Regulatory Management System(CIRMS ) project – also known as the spy machine.

Though the Malawi Communication Regulatory Authority (MACRA), won all cases both at High court and Supreme Court where some interested parties tried to block the regulatory body from installing the machine, TNM wanted a judicial review on the matter.

But in his 14 paged reasoned order on march 29, 2015, Judge Redson Kapindu said the decision by MACRA to proceed with implementation of CIRMS project was already expressly settled by the Supreme Court and that it effectively settled the matter.

Justice Kapindu said CIRMS matters could not and should not be re-opened, stating that adjudicative issues brought before the court for the purpose of re-establishing whether MACRA could legally proceed to implement the CIRMS project or whether a legal framework for such implementations exists, would be moot and at worst an abuse of the court process in view of the Supreme Court decision.

“MACRA is therefore at liberty to proceed with implementation of the CIRMS project and in fact I find it astounding that this question has presented before me for decision after the highest court of the land already made an unequivocal pronouncement thereon.”

“Reading the judgments of the same matter that happened in the past, one is left with no unmistakable impression that the Supreme Court concluded that the Communication Act is actually the necessary legal framework within which the CIRMS is to operate,” stated Kapindu.

Added the Judge: “The Supreme Court judgment is binding and we do not have to start splitting hairs on what the court said or did not say with mathematical precision. There is no doubt in our minds that we have established that there is in place a legal framework within which MACRA operates.”

Judge Kapindu further said where there is already a binding final Supreme Court decision, the high court may not be called upon to reverse under differently coloured or constituted court proceedings.

The Judge told TNM to address all their concerns to MACRA that have put before the court saying the mobile company rushed to court for leave to apply for judicial review adding the judicial review procedure generally requires that parties must first exhaust all available avenues to ventilate their concerns and possibly get an effective remedy outside the judicial review process before advert to using the judicial process.

MACRA’s Director of Legal Services James Kaphale said the verdict meant that the regulatory authority will proceed to implement the CIRMS project, now that efforts to block it by TNM through judicial review proceedings have failed.

However, Judge Kapindu has since appealed to MACRA to follow the court order that the machine should not be used to access voice or audio content or contents of short messages or intercept internet of service users.

Kapindu then ordered that the court order should be scrupulously observed and that the machine shall only be connected to the mediation port of the telecommunications service providers.–Mana

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