Telecom operators lose ground in ‘Spy Machine’ fight

By Gregory Gondwe, Blantyre, Malawi

Telecommunication operators in Malawi have lost ground in their three-year fight against the Malawi Communication Regulatory Authority (Macra) over the Consolidated ICT Regulatory Management System (Cirms). This system is designed to prevent telecoms customers from being overcharged.

Macra bought the Cirms – which was later popularised as ‘the Spy Machine’ – from a US-based company, Agilis International, at a cost of USD6.8 million and by August, it had paid USD2 million.

Ever since its acquisition, operators have been protesting its installation claiming it would infringe on the public’s right to privacy now has its hope in the pending court ruling over the matter.

This week, the Malawi Parliament gave Macra the go-ahead to install the machine after adopting a report from the House’s Committee on Media and Communications which was investigating the matter.

Telecommunication operators in Malawi still insist that using the high-tech call tracking equipment is a violation of users of their services and will compromise obligation and duty they have to their subscribers.

They also based their argument on the laws of Malawi saying Section 21 sub section c of the Malawi Constitution states that ‘Every person shall have the right to personal privacy, which shall include the right not to be subject to interference with private communications including mail and all forms of telecommunications.’

But parliament which has the bragging rights in the formulation of laws in the country overwhelmingly supported the controversial machine.

Members of Parliament (MPs) took turns without looking at their political division and supported the machine following the tabling of the parliamentary committee’s report on the Cirms.

It was tabled in the House during the last meeting of Parliament in February and all parliamentarians who debated on it supported the committee’s position to allow Macra implement the system.

During its investigations, the parliamentary committee indicated in the report that it held several meetings with stakeholders in the communications industry, including operators, as well as field visits between October 2011 and June 2012.

Vice chairperson of the Media and Communication Committee of the House, Ellen Chisale, said it was clear that the Cirms will not only benefit Macra, but also the operators and the consumers.

He said following the interaction with Macra it was established that the country will be making a profit of almost $3 million a year following installation of the machine, through Macra remittances.

A parliamentarian from Lilongwe Central, Lobin Lowe, who is one of the parliamentarians who conducted the investigations, told the national assembly that their findings are contrary to the operators’ position that the machine would be used to listen to subscribers’ private conversations.

He also said it is clear that what the operators claimed that their resistance was in the interest of the consumers in not true because following an interface with all stakeholders, it was clear that the system will benefit the consumer in a number of ways.

Lowe said Cirms is important as it will be able, through lawful interception, to trace stolen phones, reduce call drops and also charges will go down.

Another law maker from the bordering district of Nsanje, Frank Viyazyi, dismissed claims by the operators that they were already installing solutions to monitor revenue and minimise fraud.

Viyazyi said he felt that this was a task best left in the hands of Macra, the regulator, if the country is to fully realise benefits from the telecommunications industry.

He said although there were fears that Macra could abuse the machine to overhear conversations he said as parliament they feel if the machine is implemented in the way Macra proposes then it will benefit the consumer. 

A parliamentarian from Malawi’s old Capital City of Zomba, Anderson Undani, said the machine is very important, especially now when operators are involved in various cash transaction activities.

Although parliament has made its stand, it remains to be seen if it will have any effecting with the pending court ruling over the matter.

The High Court in Blantyre in September 2012, ruled that the Cirms has the potential to be abused as it has the capability to eavesdrop into people's conversations, emails and text messages.

High Court Judge, Justice Healy Potani ruled that Macra has no mandate, powers and jurisdiction to implement the rolling out of the 'spy machine' and therefore prohibited and restrained the regulating body from implementing putting in place the system.

Macra appeal against the ruling at the Supreme Court of the appeal where the matter is yet to be concluded, following the challenge by two concerned citizens, Eric Sabwera and Hophmally Makande, who went to court to stop the use of the machine by Macra to monitor and analyse all telecommunication traffic.

In their submission, they also challenged the directive by Macra to all telecommunication operators to provide it with subscribers' call detail records.

The two were of the view that the decision by Macra was unreasonable, not backed by any law and would infringe upon their constitutional right to privacy.

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