Macra has not capacity to operate ‘spy’ machine,  Supreme Court of Malawi told

Malawi Supreme Court of Appeal in Blantyre has heard that Malawi Communications Regulatory Authority (Macra) has no technical capacity to operate its monitoring system widely known as the ‘spy’ machine.

Lawyer Patrick Mpaka,  representing mobile telephone service provider, TNM which obtained an injunction last month that effectively stopped Macra from using the Consolidated ICT Regulatory Management System (Cirms) to monitor mobile phone operators questioned the rationally for contracting a foreign firm to operate the machine.

Macra, which procured the monitoring system in 201 at USD6.8 million, from US-based Agilis International, contracted the supplier to operate it on the Authority’s behalf, because it has not technical capacity to handle it.

Mpaka argued  before a panel of three judges; Dustain Mwaungulu, Jane Ansah and Frank Kapanda 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.”

He argued:  “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.”

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.

He queried the decision of hiring a foreign company in implementing the monitoring project.

Macra’s lawyer Ted Roka t told the panel of judges that the Supreme Court already dealt with the matter before [in the case of the State versus Hophmally Makande and Erick Sabwera].

“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.

Makande and Sabwera challenged Macra in court, arguing that the authority, using the system, was going to be listening to mobile phone conversations and accessing short message service (SMS), thereby infringing on people’s right to privacy

The High Court ruled in favour of Makande and Sabwera, but Macra appealed to the Supreme Court and in reversing the High Court’s decision, the three-judge panel said they considered two main issues: whether Macra had authority to use Cirms under its governing laws and whether the use of it was constitutional.

On constitutionality, the Supreme Court held that the use of the Cirms was a lawful limitation to the right to privacy, information and freedom of expression.