The High Court in Malawi has stopped the country’s communication regulatory authority from implementing the fiercely debated and feared Consolidated ICT Regulatory Management System (CIRMS), otherwise known as ’spy machine’ in Malawi, after some concerned citizens sought a legal redress. The ruling has brought relief and joy in Malawi, with a cross section of the society calling it “a landslide and befitting victory to human rights and democracy in our country.” Malawi Communications Regulatory Authority (MACRA) purchased CIRMS machine at the heat of the late Bingu wa Mutharika rule and former board, and although MACRA and the former government defended the purchase and use of the machine, there has been strong reservations by many that included opposition parties, the civil society, the corporate world, business captains and the ordinary citizen.
Mr. Hophmally Makande and Mr. Eric Sabwera, in their capacity as mobile phone users, had argued to the court, through their attorney Lusungu Gondwe of Ralph & Arnolds that they feared for their privacy in an event the machine is implemented. In his determination, Justice Healey Potani observed that the facts brought before the court, show that the CIRMS has the potential of being abused to eavesdrop telecommunication conversation without the user’s knowledge. The High Court Judge further observed that suspicions are rife of reasons behind the insistence of MACRA to implement the gadget which is said to have the capacity to tap on phone conversations. “From the facts, there is the potential and apprehension of the capabilities of the CIRMS being abused to eavesdrop on telecommunication traffic,” observed the Judge. Justice Potani added: “The impression and implication of the above assertion is that the CIRMS can be set up in such a manner that would make it capable of tapping the content telecommunications traffic.“
The reliefs sought by the applicants are therefore granted and accordingly it is ordered that an order akin to certiorari should issue quashing the respondent’s decisions complained of and it is declared that the respondent has no mandate, powers or jurisdiction to implement its decision and therefore is prohibited and restrained from implementing the decisions.” The Court also observed that any limitations on the right to privacy are not recognized by international human rights standards. “One would tend to wonder, justifiably with suspicion, why the respondent would opt to use a system or gadget that has great potential of abuse,” The High Court Judge observed. MACRA, which was represented by Kalekeni Kaphale, is a state owned ICT regulator. It is not known whether the Authority which has a new board and with a new government under Mrs. Joyce Banda in place, will instruct its legal counsel to appeal the case. Media reports indicate that the ICT regulator spent about $6.8 million to purchase the controversial machine. In July this year a revered economist, Professor Chikaonda, who is group Chief Executive Officer for Press Corporation Limited also took a swipe at MACRA for its quest to install CIRMS, saying the machine is dangerous because it has capacity to spy on peoples conversations.
Professor Chikaonda, who is a also board chair for telephone operators MTL and TNM, was speaking during the official opening of the National Bank of Malawi Towers in Blantyre where the State President Mrs. Joyce Banda and retired Malawi leader Dr. Bakili Muluzi were in attendance. The machine was also subjected to a hitch after another mobile phone user sued the country’s four telephone operators- Airtel, TNM, Malawi Telecommunications Limited and Access Communications Limited against passing Call Detail Records to MACRA’s CIRMS. It is not known whether MACRA, which currently has a new Board will appeal the case, considering also that the country is now under new rule. Both the new MACRA Board and Mrs. Joyce Banda have taken over authority after the machine was alreday bought and challenged.
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