MBC appears before MACRA’s Complaints Committee Wednesday, May 20

By Duncan Mlanjira

Malawi Communications Regulatory Authority (MACRA), which was ordered to take Malawi Broadcasting Corporation (MBC) off air at the close of business last Friday, May 15, for broadcasting offensive and vulgar comments that targeted Vice-president Saulos Chilima, has summoned the state broadcaster to appear before the Election Broadcasting Monitoring & Complaints Committee on Wednesday, May 20.

In a letter to lawyers, Jivason & Company, representing private lawyer Nicely Msowoya in conjunction with three civil rights society organizations — Human Rights Defenders Coalition (HRDC), Church & Society of the CCAP Livingstonia Synod and Youth & Society (YAS) — MACRA Director General, Godfrey Itaye says MACRA cannot take off-air MBC Television and Radio as per their demand, as doing so is demanding that the regulator goes against natural justice requirements in its governing laws.

The four petitioners had notified MACRA that if MBC TV and Radio are not taken off air by Friday, they would immediately file for an order in the High Court, compelling MACRA to close MBC until the professional personnel there at are flushed out and duly replaced.

Following the public furore that attracted the offensive broadcast, MBC management suspended the culprits, Henry Haukeya, Mercy Zamawa, Kondwani Chinele and a video editor following public outcry for the use of swearwords against Chilima during a news broadcast on Monday evening and also issued a public apology.

In their petition to MACRA, the four complainants had said MBC “is a creature of Parliament and that its broadcasting licence is statutory, per section 108 of the Communications Act”.

“Although MBC is a statutory licence under the Communications Act, this statutory licence is revocable by MACRA under section 43 of the Communications Act in circumstances, like the one in question herein, where MBC has breached its obligations.

“Our clients have noted that MBC has gone overboard in contravening its statutory duties under the Communications Act.

“MBC is perpetually in breach of its public service obligations under the Act and the broadcaster has clearly shown the whole world that it has no respect for human rights, rule of law and the Constitution, as required of it under section 109 of the Communications Act.”

They further said MBC is denying them and the nation at large their right to credible information and it is leading the country astray, yet MACRA does not appear to take any efforts to enforce the Communications Act against MBC.

In the midst of the public furore and the petition from the four, MACRA issued a statement that it had “commenced action against MBC in line with the Communications Act and its Regulations and has, therefore, given MBC a statutory notice of seven (7) days to make representations on the preliminary findings of breach as stipulated under regulation 32(3)(e) of the Communications (Telecommunications and Broadcasting Licensing) Regulations, 2016”.

MACRA furthers reminded broadcasters of their duty to ensure equitable allocation of airtime and avoid hate speech, abusive and inflammatory language especially during the official campaign period.

MACRA’s Director General Itaye has now directly responded to the four petitioners, first acknowledging their assertions that MBC is indeed a creature of statute and is in fact licensed under Section 108 of the Communications Act.

“We further acknowledge that licences issued under the Communications Act are revocable for substantial breaches of the Act, Regulations and Licences,” says Itaye. 

“However, this is subject to various rules under the Act and the Regulations.

“You will, therefore, appreciate that as a creature of statute, any action that MACRA takes has to conform to its governing legal instruments i.e. the Communications Act, 2016 and the Communications (Broadcasting) Regulations Act, 2019.

“It is these governing legal instruments that lie down the procedures that reflect rules of natural justice which MACRA should follow before invoking any regulatory sanctions,” said Itaye making reference to section 43 (2), (3) & (4) of the Act as well as regulation 50(3) and (4) of the Regulations.

He further reiterated that political election broadcast during election period are specifically regulated under Part V of Communications (Broadcasting) Regulations, 2019 and that these regulations require that MACRA make any regulatory sanctions subject to recommendations of a Broadcasting Monitoring & Complaints Committee established under rule 54.

This committee is comprised of various stakeholders including Malawi Electoral Commission (MEC); MACRA; Malawi Law Society; MISA Malawi Chapter; Centre for Multiparty Democracy and for the first time, Malawi Human Rights Commission will also be in attendance to such hearings.

“Please be advised that MACRA takes its monitoring and enforcement role very seriously and will ensure that all necessary legal and regulatory action is taken against MBC in this case subject to natural justice requirements stipulated in our governing laws.

We, therefore, regret that MACRA cannot take off-air MBC Television and Radio as per your demand, as doing so is demanding that MACRA go against natural justice requirements in our governing laws, cited above,” says Itaye.