Kunkuyu order illegal-MACRA

…State House DSTV disconnected

...Minister is flexing powers over judiciary 

An order by Minister of Information and Digitalisation directing MACRA to vacate a subsequent injunction obtained against Multichoice Malawi for adjusting its tariff without prior approval is legally unsound, the Authority lawyers have opined.
The brief which was subject to discussion at MACRAs Board meeting at Ryalls Hotel in Blantyre, called the directive as “disturbing the status quo as is the case in such instances,” as the matter was due in court on Friday.
State Residences on Friday joined thousands of Malawians whose DSTV services have been switched off with angry officials blaming “MACRA management arrogance” as they could not watch football.

President Chakwera has joined thousands of Malawians in only accessing the local broadcasters as DSTV at state House has been disconnected

A MACRA Board member told The Investigator Magazine that Director of Information  represented the Ministry at the meeting and delivered a reminder that they were all “appointed by government” both as a Board and MACRA management and it was important to follow the policy of the appointing authority.

The Board will meet again  on Tuesday, though the brief recommended they seek opinion of the Attornery General.

Information Minister Moses Kunkuyu wrote to the Authority on August 23 and it reads that MACRA lawyers worked overnight to deliver a legal opinion within a day.
The lawyers  indicate that in question is section 5 of the Communications Act and whether the direction was legal as the matter was in court.

Section 5 of the Act reads: (1) The Authority may, where necessary, seek the general direction of the Minister as to the manner in which it is to carry out its duties under this Act.(2) The directions given by the Minister under subsection (1) shall be in writing and shall be published in the Gazette.(3) Except as provided for under this Act or any other law, the Authority shall be independent in the performance of its functions.
MACRA lawyers said the law provides that the Authority should only seek policy direction from the Minister and Kunkuyu’s directive was misplaced as it has been issued by the Ministry on its own instance and done contrary to section 5 of the Communications Act.

Kunkuyu’s directive was misplaced as it has been issued by the Ministry on its own instance

The Authority’s legal brief argue that Kunkuyu also failed to understand and uphold section  5 (2) of the Act by not gazetting the directive.

“Directions by the Minister must be in writing and published in the Gazette. Undoubtedly, this requirement is essential to ensure transparency and accountability in the exercise of the Minister’s powers.
“In the present case, the direction issued by the Minister was not published in the Gazette as required under s. 5(2) of the Act. This raises a question as to the validity and enforceability of the Minister’s direction under the Act,” reads MACRAs legal opinion.

Directions by the Minister must be in writing and published in the Gazette – MACRA

The MACRA legal minds questioned the legality of the Minister’s directive to withdraw the injunction saying it “is of concern from a legal perspective. Once an injunction is obtained through due legal process, it is generally binding until it is varied or discharged by the court.”
The MACRA lawyers called the decision as being contrary to procedural principle where the courts have powers to discharge or vary the order.

The Investigator Magazine lawyers however indicate that its is factually wrong to say only court’s, as the courts are moved by the parties to the case, so MACRA legal brief deliberately is trying to pretend it cannot move the court to vacate its injunction.

MACRA goes for Kunkuyus throat asking; “Such a direction raises questions regarding the Minister’s authority to instruct a regulatory body to disregard or override lawful court orders. This raises concerns about the separation of powers between the executive and the judiciary.”
MACRA said the Minister exceeded his authority in issuing the directive and accuses him of interfering in operational matters.

“Thus, the instruction from the Minister runs counter to the court’s discretion and adjudicative role when disputes arise and parties seek its intervention.Pursuant to established practice, and based on the principle of separation of powers, both the Courts and the public are likely to frown on an attempt to supersede the role of the Courts. It is, therefore, unlikely that the court will entertain an attempt by MACRA to vacate the injunction unilaterally,” said MACRA dragging in the public for the first time.
“Attempting to supersede the court’s role could be viewed negatively by both the court and the public,” reads the brief.

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