The Malawi Supreme Court of Appeal has quashed an application by two telecommunication companies, TNM and Airtel Malawi, to stop Malawi Communications Regulatory Authority (Macra) from implementing a sender keeps all (SKA) regime on interconnection fees.
In a judicial review case civil cause Number 46 of 2010 presided over by Supreme Court Judge Dunstan Mwaungulu recently, the two firms took Macra to court, seeking judicial review over the regulator’s decision to introduce an interconnection regime called SKA.
Under the Communications Act, telecommunication operators were required to reach interconnection agreements among themselves after they had failed to do so on interconnection rates and asked the regulator to intervene.
Eventually, Macra put the interconnection rate at $0.04 (K17.84) per minute to be in operation until the operators agreed interconnection rates acceptable to all the operators.
Following the introduction of SKA, Celtel, now Airtel Malawi, and TNM commenced judicial review proceedings, challenging Macra’s decision, contending that the decision was unreasonable and unlawful.
The ruling, according to Macra spokesperson Clara Mulonya, was on a procedural point, and the judicial review case was not decided on the merits.
The High Court, on a preliminary application, discharged the judicial review proceedings commenced by Airtel and TNM.
“Macra had argued before the court that Celtel and TNM in applying for judicial review had failed to disclose all material information as is required by the law.
“The court agreed with Macra and the judicial review proceedings were discharged. Celtel and TNM lodged an appeal to the Supreme Court against the decision; they also obtained an order staying the High Court’s decision to discharge the judicial review proceedings,” said Mulonya.
Thereafter, Macra applied to have the stay order set aside.
Since Mwaungulu has decided in favor of Macra and has set aside the stay order that was made against the discharge of the judicial review proceedings.
Effectively, this means that judicial review proceedings remain discharged and Macra can proceed to implement the SKA regime.
But Mulonya in an interview said although there is now no obstacle in Macra’s way to implement SKA, it is not automatic that it will proceed with the regime.
“Various developments have occurred in the telecommunications industry since the regime was instituted in 2010.
“Macra is rethinking various ways on how to bring termination rates down, including interconnection charges,” she said.
A recent report presented by International Telecommunications Union (ITU) indicated that Malawi has one of the expensive mobile telephony rates in the world, an assertion disputed by the Association of Telecommunications Operators (Atol).n