MACRA’s legal consultant oppose spy project, Agilis VP in for payment

Rawlvan Bennet, Executive Vice President of US based company Agilis International which sold Malawi Communication Regulatory Authority (Macra) the dubbed spy machine is expected in Malawi on Monday to push for payment of the device which has a facility of ‘intercepting’ calls.

Nyasa Times understands that the Consolidated ICT Regulatory Management System was bought at US$6.8 million (about K1.7 billion) and Macra made a part payment.

The spy machine has faced opposition as two citizens, Eric Sabwera and Hophmally Makande, through their lawyer Ralph Kasambara  sought court intervention to stop Macra from installing the machine, arguing that their privacy will be compromised if Macra, a third party, get the Call Detail Records (CDRs) from the telephone operators whom they have entered into a contract with.

High Court Judge Justice Healy Potani in Blantyre granted an order restraining Macra from getting CDRs from the country’s telephone operators.

Kaphale: Gave legal opinion to Macra

Meanwhile, Nyasa Times understands that Macra boss Charles Nsaliwa, who is pushing for the installation of the machine had a meeting with chairman of parliamentary media committee , Sam Ganda at Protea Ryalls Hotel in Blantyre to lure him from convincing his committee to accept the installation of the machine.

“Nsaliwa has challenged that whether one likes it or not. Court or no court, the machine will be installed and that Agilis will get their full payment,” said a source familiar with the Ryalls meeting.

Macra‘s contract with Agilis International was signed by Bennet and Macra’s Charles Nsaliwa.

Nyasa Times has also established that Macra contracted a private legal firm to study the functionalities of the CIRMS project and furnish it with a comprehensive legal opinion on the feasibility of the project within the existing legal framework and whether there is need to reform the legal framework to cater for the implementation of the CIRMS project, and if so, identify what legal reforms would be necessary.

The legal opinion sourced through Macra by Nyasa Times noted “lack of public consultation” which is required before substantive privacy and ethics issued are involved.

The legal consultants said telephone subscribers and operators “have a right to be consulted.”

In its 40-paged legal opinion dated 16th August 2011 signed by Kalekeni Kaphale Lawyers said there is “high cost of the system but with little value added.”

It was also noted that there is substantive duplication of systems already in possession of operators.

“Operators already submit all the information required by the system, both as regards revenue and quality of service. In respect of the former, they are audited annually by reputable auditors and do submit accurate revenue data to MACRA,” the legal opinion noted.

It also said there would be unintended access to information without due process of the law.

“What Malawi needs is legal reform by way of the enactment of a statute by Parliament that will deal with issues to do with telecommunications interception and access to CDR’s whether real time or archived,” reads the legal opinion

“It ought to be appreciated that abridgement or restrictions to constitutional rights must, by section 44 (2) of the Constitution not only be sanctioned by law but must also be reasonable, acceptable by international human rights standards and necessary in an open and democratic society.”

The legal opinion said either MACRA will have to give the spy machine to law enforcement agencies once the law is passed or “a way has to be found in which the CIRMS objectives can be achieved whilst the equipment is in use by law enforcement agencies.”

The legal firm said they needed more information on the capabilities of the system and review them fully in light of the law.

In the conclusion, the legal opinion noted that “direct access to CDR’s and intercept are not possible within the current legal framework.”

“There is need to enact a law that will enable direct access to CDR’s or to archived CDR’s and intercept by law enforcement agencies and for limited purposes in a controlled environment,” it reads.

The legal experts said the spy machine can only be lawfully used by MACRA “if by using it, no access is gained to CDR’s and no intercept is done by it.”

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