Malawi court ruling kills ‘spy machine’

Malawi Judge at  Commercial court  in Lilongwe granted a  ‘permanent’ injunction against  the telephone operators in the country from passing Call Detail Records (CDRs) to Malawi Communications Regulatory Authority (Macra)  on the Consolidated ICT Regulatory Management System (Cirms) also known as ‘spy machine.’

A  mobile phone subscriber from Blantyre, Alick Kimu sued all the four telephone operators in the country namely Airtel, TNM, Malawi Telecommunications Limited (MTL) and Access Communications Limited (ACL) against them from passing CDRS to Macra.

In his determination, Justice Lovemore Chikopa, agreed with the weight of submissions by Kimu for telecom operators not to submit data to Macra, rendering ‘Spy Machine’, which was bought from a US based company Agilis international at a whopping US$6.8 million (about K1.7 billion),  inactive.

The CDRs provide detailed information including who called which number; details of calls received; time and duration of calls; location where call was made or received; SMS sent and received; type of handset used and other detailed subscriber information in real time.

In his ruling obtained by Nyasa Times, Justice Chikopa noted that the right to privacy is guaranteed in the country’s Constitution set out in Section 21.

“Simply put every person has the right to privacy. That right includes the right not to be subject to interference with private communications including mail and all forms of telecommunications,” noted Judge Chikopa.

The judge however pointed out that  “this right is not absolute. It is limitable.”

Justice Chikopa explained that the Constitution in section 44(1) and (2) provides for instances in which the right can be limited.

“ For the record the right can be limited if the limitation is prescribed by law, is reasonable, is recognized by international human rights standard and is necessary in open and democratic society,” explained the judge in his determination.

Judge Chikopa said Kimu had asked the court in the first declaration that he is entitled to having his right to privacy safeguarded by the telecom operators  under the Constitution,  the Act and the operating licenses.

“ That is granted,” ruled the Judge, saying the telecom operators “ did not object to the grant of such declaration.”

Secondly, Judge Chikopa said the plaintiff  (Kimu) sought a declaration that compliance with the MACRA directive would in the circumstances of this case be a breach of his right to privacy. He then ruled: “that is grated as well.”

Kimu also sought an injunction restraining the telecom operators  from furnishing MACRA with data, ordering “that is also granted.”

The Judge explained that this means “the interim injunction granted herein is made permanent.”

MACRA  boss Charles Nsaliwa  announced that  the regulator  would install the CIRMS to ensure that it effectively monitors the quality of service such as ensuring that call drops and poor reception are checked.

The regulator  argued that the country’s telecommunications companies are ripping off the customer.

But the court determination means Macra would not go ahead to  installing and rolling out the infamous spy machine.

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