Malawi Communications Regulatory Authority (Macra) has been stopped from going ahead with its K2.1 billion ‘spy machine’ project because it is “unreasonable, not necessary in an open and democratic society and not recognized by international human rights standards”.

Action against Macra was taken by Eric Sabwera and Hophmally Makande, who challenged the use of the machine to monitor and analyse all telecommunications traffic and the directive by Macra to all telecommunication operators to provide it with subscribers’ call detail records.

Sabwera and Makande argued that the decision by Macra was unreasonable, not backed by any law and would infringe upon their constitutional right to privacy.

High Court Judge Justice Healy Potani on Friday ruled in their favour and prohibited Macra from going ahead with the project because it has no mandate, powers or jurisdiction to implement the Consolidated ICT Regulatory Management Systems (CIRMS), otherwise known as the ‘spy machine’.

The ‘spy machine’ was bought by Macra from Agilis International of the United States at a whopping price of US$6.8 million (about K2,1 billion) but the court ruled that it has “failed to satisfy six necessary requirements that the operation must be prescribed by law, reasonable, recognized by international human rights standards, necessary in an open and democratic society, of general application and must not negate the essential content of the right to privacy.”

Macra had argued that, as regulator, it has the right to monitor the performance of telecommunications service providers particularly on quality, efficiency and reliability of service and revenue generated.

However, the judge squashed this argument by stating that: “I have very serious doubts that the respondent (Macra) would really need caller details in order to monitor performance, quality of service or indeed revenue generated.”

The machine was going to be used to access all call subscriber details, including what numbers a mobile phone had called. This, the judge ruled, was an invasion of people’s privacy and also that the machine had the potential to be abused as it had the capability to eavesdrop into people’s conversations, emails and text messages.

The decision by Macra to require phone operators to provide it with their subscribers’ call details recording was widely condemned by the public and the judge pointed out that the order had understandably caused panic, resentment and resistance.

Macra had directed all the mobile companies in the country namely Airtel, TNM, Malawi Telecommunications Limited (MTL) and Access Communications Limited (ACL) to provide it with customer call detail records which include information on subscribers details on who called which number, details of the calls received, time and duration of the call, location where calls were made or received, type of handset used and also SMS sent or received and other subscriber information.

But Macra argued that while the machine was capable of listening into people’s conversation, it did not intend to use it for that purpose but only wanted information on calling numbers, dialled numbers, duration of calls, devices used and the call junction and location of the caller.

The judge, however, said that the impression and implication he got was that the machine could be set up in such a manner that would make it capable of tapping the content of telecommunications traffic.

“One would tend to wonder, justifiably with suspicion, why (Macra) would opt to use a system or gadget that has the great potential of abuse,” the judge said.

“In Commercial case number 54 of 2011 (a similar case contesting the legality of the machine) Justice (Lovemore Chikopa) opined and I would tend to agree that it is unreasonable and not necessary in an open and democratic society for subscribers call details to be laid bare wholesale,” said Justice Potani.

“The reliefs sought by the applicants are therefore granted and accordingly it is ordered that…the respondent has no mandate, powers and jurisdiction to implement its decision and therefore its prohibited and restrained from implementing the decisions.”

Airtel Managing Director Saulos Chilima, speaking as president of Association of Telecom Operators said that it was time to put the matter to rest and move on.

“As an industry, we have been saying all along that this machine does not add any value to anyone. We hope this judgement will put the matter to rest and that moves are made to recover the hard-earned millions of American dollars paid out as deposit for the machine.

“The matter of this machine does not look like a government agenda to us. Why should we waste US$6.8 million, particularly at this time of an economic squeeze and pressure on expenditure to bring such a machine? If I were Macra, I would comply with the ruling, bury this thing and move on.”

But Macra’s Director of Legal Services James Kaphale said that they were going to appeal the ruling. He said the capability of the machine to listen into phone conversations is not all there is to it and “the fact that we have a gun does not mean that we intend to shoot people with it.” He said should they lose at the appeal stage, Macra’s board will consult with government on what to do with the machine.

Friday’s ruling is the second judgement against Macra, after a Commercial Court ruling last year by Justice Chikopa restrained use of the machine.

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