The court battles that have delayed the implementation of the Consolidated ICT Regulatory Management System (CIRMS) which Macra bought to monitor telecommunications service providers’ income has forced the institution to dig deeper into its pocket to service a bank loan it obtained to procure the machine.
The Malawi Communications Regulatory Authority (Macra) procured CIRMS, dubbed “spy machine”, three years ago, but the regulatory authority is failing to commission the system because of a case which is in the Supreme Court of Appeal.
According to documents on the machine, Macra bought it at about K4 billion out of which $2.1 million (about K798 million at the current exchange rate) was from a Standard Bank loan which the regulatory body is servicing using finances from other sources.
The expectation, according to the documents, was that if the machine was commissioned, the regulator would be generating at least $1 million (about K420 million per month at the current exchange rate) to enable the authority to pay back the loan.
At the same time, Macra claims in the documents, that government is losing at least $12 million annually in forex which could be generated through regulated international terminating calls while at the same time, K3 billion per year would be remitted to government as surplus through increased revenue collection from operators.
Says Macra in the document: “The government stands to benefit from the CIRMS project through provision of quality, accessible, affordable and reliable ICT services through effective service monitoring resulting in socio-economic development of the country.”
The document also says other government agencies such as the Malawi Revenue Authority (MRA) can benefit by correctly determining the right tax payable by operators.
However, all this remains a pipeline dream because, although hearing of submissions from Macra as respondents and lawyers representing applicants—Hophmally Makande and Eric Sabwela—was completed over seven months ago, the Supreme Court of Appeal is yet to deliver its determination on the future of the machine.
Makande and Sabwera, among other objections to the implementation of the machine, say once the new system is connected to the telecommunications service provider’s equipment; Macra would be able to access voice or audio content, and text messages from customers.
The two contend that accessing information relating to dialled numbers, duration of calls, call junctions and location of a caller would be tantamount to violation of a caller’s right to privacy.
Makande and Sabwera also argue that there has been no complaint from MRA or government that the telecommunication service providers under-declare their income or Macra has never complained that the companies are not meeting the prescribed quality of service standards.
But Macra asked the court to dismiss the matter,arguing, among other things, that it could not fulfil its statutory mandate in monitoring quality, efficiency and reliability of telecommunications services and conduct revenue assurance without such access to call detail records from service providers.
Macra director of legal services James Kaphale confirmed in an interview on Thursday that the machine is lying pending the ruling in an appeal case.
Kaphale said his institution was not satisfied with the High Court judgement which restrained Macra from commissioning the machine as it was perceived that it would infringe on the right to privacy of the citizenry.
Said Kaphale: “At the moment, Macra is just waiting for the ruling of the Supreme Court of Appeal. Macra is negotiating with the operators to use microwave links to connect with the operators networks so as to utilise the machine because apparently, what the courts stopped was using Call Detail Records.”
On the repayment of the bank loan, Kaphale said Macra is currently utilising funds sourced from other revenue collection avenues such as licences and penalties to service it.
“As you know, it is difficult to push courts to deliver a ruling when you are an interested party, however, Macra is doing all it could to have the ruling delivered including engaging the Malawi Law Society to engage the Judiciary.
“We hope the ruling will be delivered as soon as yesterday because it has now been over three years of tussling in the courts and the Supreme Court heard the arguments in February this year. Macra looks forward to the said ruling so that it can know the way forward with the machine,” he said.
In an interview on Thursday, registrar of the High Court and Supreme Court of Appeal Joseph Chigona, said the judgement is expected to be delivered within this month.
Said Chigona: “We know of that case and the judgement will be out very soon. In fact, by end of this month, the judgement will be out. You know in such cases, the judges have to meet, debate and do research and it consumes a lot of time. But I am very sure by end this month, there will be judgement.”
Three Supreme Court of Appeal judges—Justices Frank Kapanda, Andrew Nyirenda and Anaclet Chipeta—heard the case.