The pitfalls of telecommunication regulation in Malawi

In telecommunication, regulations are meant to correct market failures in order to protect and promote interests of consumers and citizens. In an ideal world, regulation is an ideal thing to have. But then ours is not an ideal world—it is a world full of opportunists and self-interested individuals. Governments and those who run its affairs are often worst offenders and therefore least trusted by the public.

Internet and phone calls have been very expensive in the country.

Therefore, it comes as no surprise in this country that regulations made in the name of protecting interests of Malawians are received with suspicion and derision, by the very same people whose interests the regulation is supposed to protect.

Consolidated ICT Regulatory Management Systems (Cirms), commonly known as “spy-machine” comes to mind. This equipment was meant to be rolled out by country’s telecommunication regulator, Malawi Telecommunication Regulatory Authority (Macra) to, among other things, help the regulator determine if Malawians were being over-charged by telecommunication operators.

Telecommunication firms in the country successfully challenged the rolling out of Cirms in the courts. The firms argued that the public were not happy with the machine as the regulator had capacity to eavesdrop on people’s private information.

Perhaps the timing of the Cirms roll out was poor given that at the time there was a considerable discontent in the country against the government, the tipping point of which was the 20th July 2011 nationwide demonstrations. Given that other regulations such as the 2016 Cyber Security Act also faced public suspicions, the challenge faced by Cirms could well be because of the country’s political history, which is riddled with leadership that has not done much to uplift people’s welfare and well-being. Trust is important for policy implementation.

Malawians could well have genuine fears and such fears are definitely not ahistorical. Yet, telecommunication companies in Malawi had more reasons to stop Macra rolling out Cirms than the purported reason that Malawians were against Cirms. Today Malawians are no longer discussing Cirms, yet some media reports suggest that some of the telecommunication companies are still not satisfied that Macra has been cleared by the courts to roll out the system. Time will be the best judge how Macra will use this equipment.

What is known is that Macra has not had the capacity to have the full information about the industry it regulates. This is why Macra had to hire services of a Scottish firm in 2017 to assess the real cost of doing telecommunication business in Malawi. Macra’s director of finance, Ben Chitsonga told the local media that the assessment has indicated that for a long time both Internet and phone calls have been very expensive in the country.

Chitsonga was optimistic that data prices would perhaps go down following the study’s revelations. This shows the importance of telecommunication regulation, especially where the regulator has the actual information of the regulated industry— it is the only way that the regulator can work in the interest of the public. This is also crucial for Macra to perhaps try and improve its chequered public image. Macra acknowledges in its own 2015-2020 Strategic Plan that among its weakness is “inadequate enforcement of regulations arising from loopholes in the Communications Act”.

It is not surprising then that the Cyber Security Act was received with public suspicion. Of course, the Act has some unambiguous and dubious provisions, which, according to Freedom House, “includes problematic provisions that critics worry will be used to silence dissent, especially as the country gears up for elections in 2019.” Such provisions include “restrictions on online communications to “protect public order and national security,” as well as vague clauses that may enable network shutdowns or blocks on communications platforms.”

These are genuine worries and I share them but then at the same time the Act is necessary in this day and age to counter the changing communication and media environment.

Robert G. Pickard and Victor Pickard in their report on Essential Principles for Contemporary Media and Communication Policymaking noticed that “policies pursued in the past for broadcasting, telecommunications, and media are often inadequate for contemporary media and communications.” They added: “the complexities of contemporary digital systems and networks, cable and satellite operations, internet-distributed content, social media, and cross-platform activities necessitate different methods to address the issues and challenges they pose.”

The Electronic Transaction Act of 2016 has been structured in such a way that it could address contemporary issues such as those being raised by the two authors. So when a local music website allowed Mwiza Chavura to promote his song perpetuating rape, and one would say outright violence against women on their website, one would think that Macra was going to act given that the Cyber Security Act has necessary provisions allowing it to intervene and protect the public from contemptible content and material such as Chavura’s song.

Macra has missed an opportunity to gain some of its much-needed public trust and also to showcase that the Cyber Security Act is not merely there to muzzle freedom of expression as many fear. Instead, it is the public outcry that has forced the police in the country to arrest the artist charged under Section 179(1)(a) of the Penal Code which penalises production of obscene material; when the Cyber Security Act has provisions in Sections 24, which among other things, limits freedoms of communication in order to “prohibit incitement on racial hatred, xenophobia or violence” and to “prohibit justification for crimes against humanity.”

  • Jimmy Kainja is a lecturer, teaching media and communications at University of Malawi, Chancellor College
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