by Anthony Simwaka
Most Malawians will have noticed that the Malawi Communications Regulatory Authority (Macra) is impinging on free speech which, in my view, should be of concern to all well-informed and conscientious.
Macra’s decision to procure a “Spy Machine” to monitor free speech on social media represents a breach of our fundamental right to freedom of expression.
To start with, it is essential to understand that free speech encompasses expressions beyond those we find agreeable. I believe that Macra, as an independent regulatory agency, has exceeded its mandate.
Let’s first understand the role of an independent regulatory agency.
An independent regulatory agency, like other quasigovernment entities, is tasked with formulating and enforcing rules that govern private activities and safeguard the public interest in specific sectors of the economy.
In contrast, a government corporation, such as the Electricity Supply Corporation of Malawi (ESCOM), operates as a business enterprise. Such agencies primarily engage in commercial activities and generate revenue. Such government corporations’ financial losses may necessitate taxpayer-funded bailouts.
While our system of government is built upon the principles of checks and balances among the executive, legislative, and judicial branches, Macra’s appears to be positioning itself as an unofficial fourth branch.
The Malawi constitution doesn’t account for such a fourth branch and agencies such as Macra must not be in the business of creating rules, usurping upon the domain of legislature.
Without appropriate oversight, these powers can be misused, paralleling the authority of the three established branches of government.
Given the broad scope of the laws enacted by parliament, it may not be feasible for parliament to monitor every detail, thus delegating legislative specifics to authorities like Macra becomes necessary.
However, parliament should maintain direct oversight over the legislation it authorizes.
Parliament can’t delegate powers intrinsic to its constitutional authority. Freedom of speech, a constitutional right for every Malawian, is one such authority that can’t be abdicated.
Consequently, Macra lacks the legislative mandate to enact laws that infringe upon this right which is why the procurement of the “Spy Machine” does not sit well within a democracy.
Parliament can’t delegate its exclusive powers; free speech is constitutionally protected, and legislative authority in this area can’t be transferred.
It’s therefore imperative for other branches of government to scrutinize Macra’s exercise of power and authority through judicial review and parliamentary oversight.
Macra should be subjected to judicial review to assess its compliance with statutory requirements, and parliament should hold hearings to investigate Macra’s role, ensuring ongoing oversight for all statutory corporations. Regrettably, partisan politics may hinder parliament’s ability to take effective action.
I call upon all Malawians to reject the encroachment of our government’s branches by unelected bureaucrats like Macra. Allowing this process to continue would erode the system of checks and balances enshrined in our constitution, setting a dangerous precedent for future governments to enact unconstitutional legislation.
