CHAPTER 68:01
COMMUNICATIONS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
MALAWI COMMUNICATIONS REGULATORY AUTHORITY

   3.   Establishment of the Malawi Communications Regulatory Authority

   4.   General duties of the Authority

   5.   Powers and functions of the Authority

   6.   Membership of the Authority

   7.   Appointment of members

   8.   Chairman of the Authority

   9.   Director General of the Authority

   10.   Other staff of the Authority

   11.   Disclosure of conflicts of interest

   12.   Financing of the Authority

   13.   Account and audit

   14.   Annual report

PART III
REGULATIONS OF TELECOMMUNICATIONS

   15.   Duty of the Authority in respect of public telecommunication services

   16.   Policy directions by the Minister

   17.   Requirement of licences for provision of telecommunication services

   18.   Kinds of telecommunication licences

   19.   Registration under a general licence

   20.   Applications for an individual licence

   21.   Terms and conditions of telecommunication licences

   22.   Monitoring and enforcement of telecommunication licences

   23.   Amendment of a telecommunication licence

   24.   Designation of telecommunication operators

   25.   Competition rules

   26.   Network interconnexion

   27.   National numbering plans

   28.   Use of infrastructure

   29.   Settlement of disputes

   30.   Provision of information

   31.   Confidentiality

   32.   Telecommunication regulations

PART IV
RADIO SPECTRUM MANAGEMENT

   33.   Duty of the Authority in respect of use of radio frequencies

   34.   Planning and management of the radio spectrum

   35.   Requirement of licence for operation of a radio station

   36.   Kinds of radio licence

   37.   Application for radio licences

   38.   Competitive tendering process of radio licences

   39.   Amendment of radio licences

   40.   Monitoring and enforcement of radio regulations

   41.   Control of radio stations

   42.   Revocation of radio licences

   43.   Emergency powers in connexion with radio stations

   44.   Radio regulations

PART V
REGULATION OF BROADCASTING

   45.   Broadcasting policy

   46.   Requirement of licences for provision of broadcasting services

   47.   Kinds of broadcasting licences

   48.   Application for broadcasting licences

   49.   Public broadcasting licences

   50.   Control of private broadcasting services

   51.   Terms and conditions to be contained in broadcasting licences

   52.   Code of conduct for broadcasting services

   53.   Amendment of broadcasting licences

   54.   Monitoring and enforcement of broadcasting licences

   55.   Complaints concerning broadcasts

   56.   Power to licence reception of broadcasting services

   57.   Broadcasting regulations

PART VI
REGULATION OF POSTAL SERVICES

   58.   Duty of the Authority in respect of postal services

   59.   Policy directions by the Minister

   60.   Exclusive right of Malawi Posts to convey letters

   61.   Licensing of mail services

   62.   Amendment of a mail licence

   63.   Charges and other terms and conditions of postal services

   64.   Design, etc., of postage stamps

   65.   Inviolability of mail

   66.   Use of public transport for carrying mail

   67.   Transactions on behalf of the Government and local authorities in post offices

   68.   Financial services

   69.   Postal regulations

PART VII
MALAWI TELECOM

   70.   Incorporation of Malawi Telecom

   71.   Transfer of assets, etc.

   72.   Election to transfer to employment with Malawi Telecom

   73.   Sale of shares in Malawi Telecom

PART VIII
MALAWI POSTS

   74.   Establishment of Malawi Posts

   75.   Duties of Malawi Posts

   76.   Powers and functions of Malawi Posts

   77.   Board of Directors of Malawi Posts

   78.   Postmaster General

   79.   Other staff of Malawi Posts

   80.   Financing of Malawi Posts

   81.   Account and audit

   82.   Annual report

   83.   Transfer of assets, etc.

   84.   Election to transfer to employment with Malawi Posts

   85.   Exemption from liability of Malawi Posts

PART IX
RECONSTITUTION OF MBC

   86.   Establishment of Malawi Broadcasting Corporation

   87.   Public service obligations of MBC

   88.   Powers and functions of MBC

   89.   Board of Directors of MBC

   90.   Appointment of members of the Board of MBC

   91.   Avoidance of conflicts of interest

   92.   Director General and other employees of MBC

   93.   Financial duty of MBC

   94.   Financing of MBC

   95.   Account and audit

   96.   Annual report

PART X
OFFENCES

   97.   Telecommunication offences

   98.   Radiocommunication offences

   99.   Postal offences

   100.   Broadcasting offences

   101.   Miscellaneous offences

   102.   General punishment for offences

PART XI
TRANSITIONAL AND MISCELLANEOUS PROVISIONS

   103.   Existing licences and authorities

   104.   Dissolution of MPTC

   105.   National Communications Policy

   106.   Type approval of equipment

   107.   Advisory forums

   108.   Publication of licences

   109.   Licence fees and other charges

PART XII
REPEALS AND SAVINGS

   110.   Repeals and savings

FIRST SCHEDULE
MALAWI COMMUNICATIONS REGULATORY AUTHORITY

   1.   Tenure of office and vacancies

   2.   Remuneration of members

   3.   Meetings of the Authority

   4.   Committees of the Authority

SECOND SCHEDULE
CODE OF CONDUCT FOR TELECOMMUNICATION OPERATORS

   1.   Entry upon and construction of lines across land

   2.   Underground pipes for installing lines

   3.   Right of access to land for the provision of telecommunication services

   4.   Right of access to private premises

THIRD SCHEDULE
CODE OF CONDUCT FOR BROADCASTING SERVICES

   1.   Freedom of broadcasters

   2.   General obligations of broadcasting

   3.   News

   4.   Comment

   5.   Controversial issues

   6.   Elections

   7.   Privacy

   8.   Payment for information

FOURTH SCHEDULE
BOARD OF MALAWI POSTS

   1.   Vacation of office

   2.   Remuneration of members

   3.   Meetings of the Board

   4.   Committees of the Board

FIFTH SCHEDULE
BOARD OF MALAWI BROADCASTING CORPORATION

   1.   Tenure of office and vacancies

   2.   Remuneration of members

   3.   Meetings of the Board

   4.   Committees of the Board

41 of 1998
G.N. 4/1999

An Act to make provision for the regulation and provision of services in the Communications Sector in Malawi comprising telecommunications, posts and broadcasting; for the establishment of an independent regulatory authority, the Malawi Communications Regulatory Authority; for the separation of the administration and provision of telecommunication services from postal services; for the reconstitution of the Malawi Broadcasting Corporation (MBC) as a public broadcaster; and for matters connected therewith or ancillary thereto

[1ST MARCH 1999]

PART I
PRELIMINARY

1.   Short title

   (1) This Act may be cited as the Communications Act.

   (2) Part VII and Part VIII of this Act shall come into force on the transfer date.

2.   Interpretation

   In this Act unless the context otherwise requires—

   “Authority” means the Malawi Communications Regulatory Authority established under section 3;

   “broadcasting” means any form of telecommunication intended for general reception by the public by means of receivers adapted for the purpose;

   “broadcasting licence” means a radio licence that authorizes the provision of a broadcasting service;

   “broadcasting service” means a service consisting of the diffusion of sound or television programmes for general reception by the public;

   “cable television network” means a telecommunication network which is intended for the distribution of radio or television programmes to users through a system of lines and which is capable of, or of being adapted for, providing access to telecommunication services;

   “communication service” means any telecommunication service, broadcasting service or postal service;

   “community broadcasting service” means a broadcasting service which—

   (a)   serves a particular community;

   (b)   is carried on for non-profitable purposes; and

   (c)   is fully controlled by a non-profit entity,

   “coverage area” means the area in which a broadcasting service is intended to be received;

   “frequency allocation” means the reservation of one or more radio frequency bands for a particular use or particular uses;

   “frequency assignment” means the reservation of one or more radio frequencies for use by a particular person in accordance with the table of national frequency allocations;

   “general licence” means a licence to operate a telecommunication network or to provide a telecommunication service for which the person concerned does not require an explicit authorization by the authority before exercising the rights stemming from the licence;

   “immediate family member” , in relation to any person, means that person’s spouse, child, parent, brother, sister, grand-child or grand-parent;

   “individual licence” means a licence to operate a telecommunication network or provide a telecommunication service issued by the Authority to a body corporate under Part III of this Act and which gives that person specific rights and obligations;

   “infrastructure” means any structure or facility installed and maintained for the purpose of the provision of a public utility service;

   “interconnection” means the physical and logical connection of telecommunication network in order to allow the users connected to one such network to have access to users connected to other networks or to access services provided by means of such other networks;

   “letter” means any communication in written form which—

   (a)   is directed to a specific person or address;

   (b)   relates to the personal, private or business affairs of, or the business affairs of the employer of, either correspondent; and

   (c)   neither is to be nor has been transmitted by means of telecommunications,

and includes any such other article transmissible by post which contains any such communication;

   “licence network” means a telecommunication network, the establishment or operation of which is authorized by a licence issued under this Act;

   “licensee” means the holder of a licence issued or deemed to have been issued under this Act or a person registered under a general licence issued under this Act;

   “line” means any wire, cable, equipment, tower, mast, antenna, tunnel, hole, pit, pole or other structure or thing used or intended to be used in connection with a telecommunication network;

   “mail” means letters and other articles in course of transmission by post;

   “Malawi Posts” means the body corporate by that name established under section 74;

   “Malawi Posts and Telecommunications Corporation” means the body corporate by that name established under the Malawi Posts and Telecommunications Act, repealed by this Act;

   “Malawi Telecom” means a company by that name incorporated or to be incorporated under the Companies Act pursuant to section 70;

   “MBC” means the Malawi Broadcasting Corporation established under section 86;

   “message” means any communication sent or received or made by means of telecommunication;

   “National Communications Policy” means any statement made by the Minister under section 105;

   “post” means any system for the collection, dispatch, conveyance, handling and delivery of letters, postcards, printed papers, commercial papers, samples, parcels or other similar articles;

   “postal article” means any article in course of transmission by post;

   “post office” means any building, house, room, receptacle, vessel, vehicle or place where postal articles are received, sorted, made up or dispatched;

   “private broadcasting service” means a broadcasting service operated for profit and controlled by a person who is not a holder of a public broadcasting licence;

   “Public Appointments Committee” means the Public Appointments Committee of the National Assembly established under section 56 (7) of the Constitution;

   “public broadcasting service” means—

   (a)   any broadcasting service provided by MBC; or

   (b)   any broadcasting service provided under a licence which stipulates—

      (i)   national or local transmission of the broadcasting service;

      (ii)   the provision of regular news bulletins; and

      (iii)   access to the service for public information announcements or programmes;

   “public telecommunication network” means a telecommunication network used, in whole or in part, for the provision of telecommunication service to the public;

   “radiocommunication” means any telecommunication by means of radio frequencies;

   “radiocommunication service” means any service for telecommunication by means of radio frequencies;

   “radio frequencies” means electromagnetic waves of frequencies arbitrarily lower than 3000 GHz propagated in space without artificial guide;

   “radio station” means any equipment, facility or system used or intended to be used for radiocommunication;

   “subscriber” means any person who has entered into a contract with an authorized provider of a telecommunication service which includes or requires the provision or maintenance of a connexion to a telecommunication network;

   “telecommunication” means the emission, transmission or reception, through the agency of electricity or electromagnetism, of any sounds, signs, signals, writing, images, intelligence of any nature by wire, radio, optical or other electric or electromagnetic systems whether or not such signs, signals, writing, images, sounds or intelligence have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception;

   “telecommunication licence” means any licence to operate a telecommunication network or provide a telecommunication service;

   “telecommunication network” means transmission systems and, where applicable, switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, by radio, by optical or other electric or electromagnetic means;

   “telecommunication operator” means the operator of a telecommunication network designated by the Authority under section 24;

   “telecommunication service” means a service consisting wholly or partly in the transmission and routing of signals on a telecommunication network, with the exception of radio and television broadcasting;

   “terminal equipment” means any equipment to be connected to a telecommunication network which is operated by a person duly licensed to provide a public telecommunication service;

   “transfer date” means the date on which—

   (a)   the telecommunications assets and undertakings of Malawi Posts and Telecommunications Corporation are transferred to Malawi Telecom as prescribed in section 71;

   (b)   the postal assests and undertakings of the Malawi Posts and Telecommunications Corporation are transferred to Malawi Posts as prescribed in section 83;

   “voice telephony” means the commercial provision for the public of the direct transport and switching of speech in real time between public switched network termination points.

PART II
MALAWI COMMUNICATIONS REGULATORY AUTHORITY

3.   Establishment of the Malawi Communications Regulatory Authority

   (1) There is hereby established the Malawi Communications Regulatory Authority (in this Act otherwise referred to as the “Authority”) for the purpose of performing the functions assigned under this Act.

   (2) The Malawi Communications Regulatory Authority shall be a body corporate by that name and shall—

   (a)   have perpetual succession and a common seal;

   (b)   be capable of suing and being sued in its corporate name;

   (c)   be capable of acquiring and disposing of any movable or immovable property and performing such acts and things as bodies corporate may by law do or perform; and

   (d)   have power to perform such functions and exercise such power as are conferred by this Act.

   (3) In addition to the provisions of this Act, the First Schedule shall apply to the Authority with respect to the matters specified in that Schedule.

4.   General duties of the Authority

   (1) The Authority shall have the general duty to ensure that, so far as it is practicable, there are provided throughout Malawi reliable and affordable communication services sufficient to meet the demand for them.

   (2) Subject to subsection (1), the Authority shall—

   (a)   protect the interests of consumers, purchasers and other users of communication services in respect of the prices charged for the quality and variety of services provided and terminal equipment supplied;

   (b)   promote open access to information by means of communication services;

   (c)   promote efficiency and competition among persons engaged in provision of communication services or supply of communication equipment;

   (d)   encourage the introduction of new communication services;

   (e)   promote research in telecommunications, including radio-communications; and

   (f)   foster the development of communications services and technology in accordance with recognized international standards.

   (3) The Authority shall be independent in the performance of its functions.

5.   Powers and functions of the Authority

   (1) The Authority shall have the power to regulate telecommunications, broadcasting, the use of radio frequencies, and the provision of postal services throughout Malawi.

   (2) The Authority shall carry out the following functions—

   (a)   to keep under review the carrying on within and outside Malawi of activities connected with communications;

   (b)   to collect and to publish information with respect to commercial activities connected with communications carried on in Malawi;

   (c)   to provide advice to users and providers of communication services;

   (d)   to sponsor the provision of, and where necessary to provide, training in activities related to the provision of communication services;

   (e)   to give information, advice and assistance to the Minister with respect to any matter which concerns the provision of communication services;

   (f)   to investigate any matter which is related to the provision of communication services or to the use of radio frequencies and which is the subject of a representation to the Authority;

   (g)   to regulate the provision of telecommunication services through—

      (i)   licensing of service providers;

      (ii)   providing advice to the Minister on regulations or policies;

      (iii)   monitoring the activities of licensees to ensure compliance with the terms and conditions of their licence and applicable regulations, and related activities;

   (h)   to draw up numbering plans for public telecommunication networks;

   (i)   to ensure, so far as it is possible, the adoption of international standards and, where that is not possible or appropriate, to draw up and apply national standards for telecommunication services and terminal equipment;

   (j)   to establish a type approval regime for terminal equipment, to grant approvals and to ensure that type approval procedures are adhered to;

   (k)   to regulate broadcasting services through—

      (i)   licensing of providers of broadcasting services;

      (ii)   providing advice to the Minister on regulations or policies;

      (iii)   monitoring the activities of licensees to ensure compliance with the terms and conditions of their licence and applicable regulation,

and related activities;

   (l)   to plan the use of radio frequencies and make frequency allocations;

   (m)   to carry out and co-ordinate frequency assignments;

   (n)   to monitor radio emissions and deter interference with authorized radiocommunications;

   (o)   to establish technical requirements and technical standards in relation to—

      (i)   radio apparatus; and

      (ii)   interference-causing equipment, or any class thereof;

   (p)   to regulate the provision of postal services through—

      (i)   licensing of service providers;

      (ii)   providing advice to the Minister on regulations and policies;

      (iii)   monitoring the activities of licensees to ensure compliance with the terms and conditions of their licence and applicable regulations,

and related activities;

   (q)   to propose modifications and amendments to licences and regulations;

   (r)   as directed by the Minister, to represent the Government at conferences and meetings of international organizations concerned with communications; and

   (s)   to do all such things as are necessary or incidental or conducive to the better carrying out of the functions of the Authority specified in this Act.

6.   Membership of the Authority

   (1) The Authority shall consist of a Chairman and—

   (a)   six other members appointed in accordance with the provisions of section 7;

   (b)   the following members ex officio

      (i)   the Secretary to the President and Cabinet;

      (ii)   the Secretary for Information.

   (2) Members of the Authority shall be persons who—

   (a)   are citizens resident in Malawi;

   (b)   possess qualifications, expertise and experience in any of the fields of posts, telecommunications, broadcasting, frequency planning, law, economics, business, finance, public administration and public affairs.

   (3) Members of the Authority shall serve part-time.

   (4) Any person who—

   (a)   is a member of Parliament;

   (b)   is a Minister or Deputy Minister;

   (c)   is a member of a committee of a political party at district, regional or national level, shall be disqualified from being appointed as a member of the Authority.

7.   Appointment of members

   (1) The President shall appoint members of the Authority.

   (2) The first appointment of members of the Authority as provided for in subsection (1) shall be made within twenty-eight days of the coming into force of this Act.

   (3) The names of all members of the Authority as first constituted and every change of membership shall be published in the Gazette.

   (4) In appointing members of the Authority under subsection (1), the President shall have regard to the need for continuity of service on the Authority, so that at least half of the members of the Authority appointed thereunder shall be re-appointed for the next term of office.

8.   Chairman of the Authority

   (1) The President shall appoint one of the members of the Authority as Chairman.

   (2) In the event of the Chairman being absent for a period of more than twenty-eight days, members of the Authority shall elect one of their number to exercise the powers and perform the duties of the Chairman.

9.   Director General of the Authority

   (1) The Minister shall, on the recommendation of the Authority, appoint the Director General of the Authority, who shall be responsible for the direction of and supervision over the work and staff of the Authority.

   (2) There shall be a Deputy Director General of the Authority who shall—

   (a)   be appointed by the Authority with the approval of the Minister;

   (b)   perform such functions and duties as may be assigned to him by the Director General from time to time.

   (3) The Director General or, in his absence, the Deputy Director General, shall attend meetings of the Authority and of any committees of the Authority and may address such meetings, but shall not vote on any matter:

   Provided that the person presiding at any meeting may, for good cause, require the Director General or the Deputy Director General to withdraw from such meeting.

10.   Other staff of the Authority

   (1) The Authority shall establish its own administration and to that end may appoint such staff, subordinate to the Director General, as the Authority deems necessary for the discharge of its functions under this Act.

   (2) The Director General shall have power to appoint staff of such junior ranks as the Authority may specify.

   (3) The Authority may pay to persons in its employ, or provide them with, such remuneration, pensions and employment benefits as the Authority may, after having obtained such professional advice as it may deem fit, consider as being competitive in the employment market in Malawi.

11.   Disclosure of conflicts of interest

   (1) If any member is present, at a meeting of the Authority or of any committee of the Authority at which any matter which is the subject of consideration is a matter in which that person or his immediate family member or his professional or business partner is directly or indirectly interested in a private professional capacity, he shall, as soon as is practicable after the commencement of the meeting, disclose such interest and that person shall not take part in any consideration or discussion of, or vote on, any question touching such matter.

   (2) The Director General shall disclose to the Chairman of the Authority any interest he or a member of his immediate family has, whether in a private or professional capacity, in any matter that is under consideration by the Authority and shall not attend any meeting of the Authority or of any committee of the Authority while any question touching such matter is being discussed.

   (3) Any employee of the Authority or any consultant, advisor or sub-contractor to the Authority shall disclose to the Director General any interest he or a member of his immediate family has, whether in a private or professional capacity, in any matter that is under consideration by the Authority and the Director General shall take such decision as he considers appropriate in each case and submit a report thereon to the Authority.

12.   Financing of the Authority

   (1) The operating and financial costs of the Authority shall be financed from—

   (a)   fees and other moneys payable to the Authority in respect of licences issued by the Authority under this Act;

   (b)   fines payable to the Authority in respect of breaches of licence terms, conditions and obligations;

   (c)   grants or donations received by the Authority;

   (d)   such moneys as are from time to time appropriated to the Authority by Parliament; and

   (e)   the proceeds from the sale by the Authority of any assets or equipment to which it has title.

   (2) Subject to the Finance and Audit Act, the Authority may borrow such amounts as it may require for the performance of its functions under this Act with the prior approval of the Minister of Finance.

   (3) The Authority may charge fees in respect of publications, seminars, documents, advisory and other services provided by the Authority.

   (4) The moneys of the Authority which are not immediately required for the performance of its functions may be invested on short-term deposit with any bank or financial institution in Malawi.

   (5) All moneys of the Authority which, in the opinion of the Minister of Finance, are in excess of its budgetary requirements shall be paid into the Consolidated Fund, but the Authority shall be entitled to retain such sums as it reasonably requires for its operations.

13.   Account and audit

   (1) The Authority shall cause to be kept proper books of accounts and other records relating to its accounts.

   (2) The accounts of the Authority shall—

   (a)   be audited annually by independent auditors appointed by the Authority and approved by the Minister;

   (b)   be examined by the Auditor General before being presented to the Minister in accordance with section 14.

   (3) The financial year of the Authority shall end on 31st March.

   (4) The Minister may, by order published in the Gazette, prescribe a different date for the ending of the financial year of the Authority.

14.   Annual report

   (1) As soon as practicable, but not later than six months after the expiry of each financial year, the Authority shall submit to Parliament through the Minister a report concerning its activities during that financial year.

   (2) The report referred to in subsection (1) shall be in such form and contain such information as the Minister shall require.

   (3) There shall be appended to the report referred to in subsection (2)—

   (a)   an audited balance sheet;

   (b)   an audited statement of income and expenditure; and

   (c)   such other information as the Authority may consider appropriate or as the Minister may direct.

PART III
REGULATIONS OF THE TELECOMMUNICATION NETWORKS AND SERVICES

15.   Duty of the Authority in respect of public telecommunication services

   In the performance of its duties under section 4, the Authority shall regulate telecommunication networks and services in Malawi so as to ensure—

   (a)   the provision of a wide range of public telecommunication services in Malawi; and

   (b)   as far as is practicable, open entry into the provision of public telecommunication services;

16.   Policy directions by the Minister

   (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 Part.

   (2) Any direction given by the Minister under subsection (1) shall be in writing.

17.   Requirement of licence for provision of telecommunication service

   (1) Subject to subsection (2), no person may operate a telecommunication network or provide telecommunication service in Malawi or between any place in Malawi and any other place except in accordance with a licence issued by the Authority.

   (2) The Minister, on the advice of the Authority, may from time to time make regulations exempting—

   (a)   the operation of the telecommunication networks; or

   (b)   the provision of the telecommunication services, of the kinds set out in the regulations from the requirement to be licensed under this Act.

18.   Kinds of telecommunications licence

   (1) The Authority may issue telecommunication licences of the following kinds—

   (a)   general licences; and

   (b)   individual licences.

   (2) The Authority shall publish a list of the telecommunication networks and services which may only be provided under an individual licence.

   (3) Notwithstanding section 17 and subsection (2) of this section—

   (a)   the provision of voice telephony; and

   (b)   the operation of a cable television network, may only be authorized under an individual licence.

   (4) Before issuing any telecommunication licence, the Authority shall publish in the Gazette a complete draft of the proposed licence and consider any representations made to it concerning the draft.

   (5) Any telecommunication licence issued by the Authority shall come into effect when published in the Gazette.

19.   Registration under a general licence

   (1) The Authority shall publish a notice specifying—

   (a)   the procedure by which any person wishing to operate a telecommunication network or provide a telecommunication service which is regulated by a general licence may register with the Authority;

   (b)   the information which must be provided to the Authority at the time of initial registration or subsequently; and

   (c)   the registration fee payable.

   (2) The Authority may, after due inquiry has been made, refuse to recognize the registration of any person even if made in accordance with the published procedure if so directed by the President in the interest of national security:

   Provided that any person dissatisfied with a decision of the Authority may have recourse to the High Court.

   (3) Subject to subsection (2), any person may begin to operate a telecommunication network or provide a telecommunication service which is regulated by a general licence twenty-eight days after its registration has been duly made within which period all other technical procedures and formalities would have been complied with.

   (4) No person may operate a telecommunication network or provide a telecommunication service to which a general licence relates until the registration procedure of the Authority has been complied with.

20.   Applications for individual licences

   (1) The Authority shall publish the procedures by which individual licences may be applied for.

   (2) Licensing procedures shall be objective, transparent and non-discriminatory and shall specify—

   (a)   the kinds of individual licences which may be applied for;

   (b)   the criteria by which each licence will be issued; and

   (c)   the fees payable for the issue of a licence.

   (3) The Authority may grant or refuse an application for an individual licence taking into consideration—

   (a)   the applicant’s capability to operate the network or service for which he seeks a licence;

   (b)   the published criteria by which the licence will be issued;

   (c)   the extent to which issuing such a licence would be consistent with the principles stated in section 4; and

   (d)   whether or not the issue of such a licence is in the public interest.

   (4) The Authority shall communicate its decision on an application for an individual licence within six months of receipt of the application.

   (5) Where the individual licence to be issued for the operation of a particular type of telecommunication network or the provision of a particular type of telecommunication service is to be limited in number, the Authority shall—

   (a)   publish a consultative document providing a detailed explanation of the reasons for the proposed limitation and consider any representation made to it on the matter;

   (b)   publish a notice in the Gazette stating the number of licences to be issued and the grounds for the limitation to the number; and

   (c)   review from time to time a review of any limitation imposed.

   (6) An individual licence may not be transferred except with the consent in writing of the Authority

21.   Terms and conditions of telecommunication licences

   (1) A telecommunication licence issued by the Authority shall—

   (a)   be issued on payment by the applicant of the appropriate licence fee;

   (b)   state the terms and conditions on which it is issued;

   (c)   specify the services that may be provided; and

   (d)   come into effect when published in the Gazette.

   (2) A telecommunication licence may only be issued on such terms and subject to such conditions as are consistent with the principles stated in section 4.

   (3) A telecommunication licence may include all or any of the following conditions—

   (a)   the provision of services to rural or other specified areas;

   (b)   the payment of sums of money for the licence calculated as a proportion of the annual turnover of the licenced network or otherwise;

   (c)   the payment by the licensee of a contribution towards any loss incurred by another licensee as a result of an obligation imposed on that licensee by the Authority regarding the provision of uneconomic service in accordance with the principles stated in section 4;

   (d)   the interconnexion of the licensee’s telecommunication network with any other licensed network and permitting the connexion of approved equipment to the licensee’s telecommunication network;

   (e)   prohibiting the licensee from giving undue preference to or from exercising undue discrimination against any particular person or any class of persons (including any other licensee);

   (f)   prescribing rules that govern the commercial behaviour of the licensee;

   (g)   requiring the submission to the Authority for its approval of a standard contract for the provision of service to users;

   (h)   specifying the criteria for setting tariffs of voice telephony services and of any other telecommunication service if provided on an exclusive basis, and such criteria shall as far as possible promote consultation between the Authority and the operator or service provider;

   (i)   requiring the licensee to publish the charges and other terms and conditions that are to be applicable to facilities and services provided;

   (j)   requiring the licensee to ensure that adequate and satisfactory information including billing, tariffing, directory information and directory enquiry services and emergency numbers are provided to customers;

   (k)   establishment by the licensee of a simple method of resolving disputes with users;

   (l)   furnishing to the Authority such documents, accounts, returns or such other information as the Authority may require for the performance of its functions under this Act;

   (m)   requiring the licensee to comply with such technical standards or requirements including service performance standards as may be specified in the licence;

   (n)   any other conditions as the Authority may consider appropriate and which are consistent with the principles stated in section 4 of this Act.

22.   Monitoring and enforcement of telecommunication licences

   (1) The Authority shall ensure that telecommunication services are provided in accordance with the terms and conditions of licences and regulations in force.

   (2) The Authority may—

   (a)   investigate any complaint made to it concerning activities undertaken under a telecommunication licence;

   (b)   appoint an independent person to carry out an investigation into such a complaint;

   (c)   require the licensee to respond to such a complaint.

   (3) Where, after due inquiry, the Authority is satisfied that a licensee has breached a term or condition of its telecommunication licence, it shall notify the licensee of the fact in writing and may make a provisional order requiring the licensee to remedy the breach forthwith.

   (4) The Authority may make a provisional order suspending the registration of any person under a general licence if it believes on reasonable grounds that the person has ceased to be eligible or that the person has contravened any condition of the licence, provided that the Authority—

   (a)   gives not less than twenty-eight days notice in writing before the suspension takes effect,

   (b)   gives the person reasons in writing for the intended suspension; and

   (c)   provides a reasonable opportunity for the person to make representations in writing or in person.

   (5) After due consideration of any representations made to it, the Authority may confirm a provisional order made under this section and may require the payment of a penalty or compensation, as appropriate.

   (6) Any person affected by an order made by the Authority under this section may apply to the High Court for judicial review.

23.   Amendment of a telecommunication licence

   (1) The Authority may modify any condition of a telecommunication licence in accordance with the provisions of the licence or, in the absence of such provision, if it is in the public interest to do so.

   (2) Before modifying any condition of a telecommunication licence, the Authority shall—

   (a)   publish a notice stating the reasons for the intended modification and giving any person with an interest in the matter the opportunity to make representation; and

   (b)   give due consideration to any representation regarding the proposed modification made to it by any person having an interest or holding an individual licence.

24.   Designation of telecommunication operators

   (1) The Authority may designate as a telecommunication operator any person who has been issued an individual licence under this Part which includes the following conditions—

   (a)   an obligation to provide such telecommunication services as are specified in the licence;

   (b)   an obligation to connect to any telecommunication network to which the licence relates or permit the connexion to any such network, of such other networks as are specified in the licence;

   (c)   a prohibition on showing undue preference to, or on exercising undue discrimination against, particular persons or persons of any class or description in respect of any service provided or connexion made (whether in respect of the charges or other terms and conditions applied or otherwise); and

   (d)   such other terms and conditions as the Authority may specify.

   (2) Any person designated as a telecommunication operator shall enjoy the rights and comply with the obligations specified in the code of conduct set out in the Second Schedule.

   (3) The Authority may co-opt any person designated as a telecommunication operator as a member of its delegation to any international organization concerned with telecommunications.

25.   Competition rules

   If it appears to the Authority that a person holding an individual licence is taking or intends to take any action which—

   (a)   may constitute an abuse of a dominant position in relation to the provision of any telecommunication service, or

   (b)   has or is likely to have the effect of placing another person engaged in telecommunication activities at a competitive disadvantage in relation to that person,

the Authority may, after giving the person concerned an opportunity to make representations, direct that person to cease or refrain from taking such actions, as the case may be.

26.   Network interconnexion

   (1) Any person holding a telecommunication licence under this Act may enter into an agreement regarding interconnexion with another such person on such terms and conditions as the parties agree, provided that the agreement is notified to the Authority with a copy supplied.

   (2) The Authority may, within twenty-eight days of an agreement regarding interconnexion notified to it under subsection (1), declare void any term of the agreement.

   (3) Where, pursuant to subsection (2), the Authority declares void a term of an agreement regarding interconnexion, the Authority shall notify the parties to the agreement in writing giving its reasons.

   (4) If the persons referred in subsection (1) fail to agree on terms for interconnexion, the Authority shall, at the request of any of them, determine such terms and conditions.

   (5) The Authority may issue guidelines in accordance with which agreements regarding interconnexion may be negotiated.

   (6) Any network interconnexion agreement reached pursuant to this section shall be filed with the Authority and shall be open to inspection by the public at the premises of the Authority.

27.   National numbering plans

   (1) After consultation with licensees designated as telecommunication operators, the Authority shall publish in the Gazette a numbering plan for use by subscribers in Malawi.

   (2) The Authority shall from time to time consult with operators of telecommunication networks providing voice telephony on the need for additions to or changes in the published numbering plan.

   (3) No change to the numbering plan may be made without the consent of the Minister.

   (4) Any change in the numbering for voice telephony shall be designed so as to ensure that—

   (a)   sufficient numbers can be made available to subscribers without delay;

   (b)   numbers include as few digits as practicable;

   (c)   additional blocks of numbers are allotted to licensees in a non discriminatory manner;

   (d)   no undue competitive advantage is conferred on any licensee.

28.   Use of infrastructure

   (1) Telecommunication operators in Malawi may by agreement have access to or make use of any infrastructure for the purpose of providing public telecommunication services.

   (2) Any person authorized to operate infrastructure may install, maintain and operate telecommunications equipment and facilities for the purposes of operating that infrastructure:

   Provided that—

   (a)   any permits required from the Authority to install, maintain or operate such equipment and facilities have been obtained;

   (b)   subject to section (1), the telecommunications equipment and facilities are not used to provide a public telecommunication service.

   (3) An operator of public telecommunication service shall, whenever technically feasible and subject to a negotiated agreement, make available its infrastructure or part thereof to any other operator of public telecommunications services unless sharing of such infrastructure or any part thereof causes or is likely to cause harmful interference with the provision of services by the first operator.

   (4) The cost, if any, of making infrastructure available to a requesting operator of public telecommunications pursuant to subsection (3) shall be borne by that requesting operator.

   (5) Any request for sharing of infrastructure pursuant to subsection (3) shall be made in writing and shall be responded to in writing within twenty-eight days of the receipt of the request and in the event of refusal the requested operator shall be required to furnish reasons.

   (6) Where the parties referred to in subsection (3) fail to reach agreement and the Authority is of the opinion that it is technically feasible for those parties to share the infrastructure concerned, the Authority shall have power to compel the parties to reach agreement on such terms and conditions as the Authority shall determine.

   (7) Any agreement for sharing infrastructure made pursuant to subsection (1) and (3) shall be filed with the Authority by the requesting operator of public telecommunications services being party to the agreement.

   (8) Any dispute regarding the sharing of infrastructure pursuant to this section shall be resolved by the Authority.

29.   Settlement of disputes

   (1) The Authority shall establish and maintain a procedure by which any matter which—

   (a)   relates to the provision of a telecommunication service;

   (b)   has not, after allowing a reasonable period, been resolved between the subscriber or subscribers concerned and the provider of the telecommunication services; and

   (c)   in relation to which the Authority has been requested to act by a subscriber concerned,

may be resolved in an effective, fair and relatively cheap manner.

   (2) The Authority may intervene at the request of any party in order to resolve any dispute between holders of telecommunication licences.

30.   Provision of information

   The Authority may require any person holding a telecommunication licence—

   (a)   to adopt any method of calculating the costs of providing telecommunication services and to adopt any accounting method or system of accounts for the purposes of complying with the provisions of this Act or the exercise of a power conferred on the Authority under this Act:

   Provided that any such accounting system or method shall not be contrary to the accounting requirements of companies’ legislation;

   (b)   to submit information to the Authority, in periodic reports or in such other form and manner as the Authority considers necessary for the implementation of this Act.

31.   Confidentiality

   (1) The Authority shall not discuss any information provided to it as part of the exercise of its functions under this Act which relates to the business activities of any body corporate which that person has notified to the Authority that it wishes to be kept confidential.

   (2) Notwithstanding subsection (1), the Authority may disclose information that it has been notified should be kept confidential if such disclosure is essential in order to fulfill its functions under this Act or if so directed under an order of a court.

   (3) Before disclosing any information that it has been notified should be kept confidential, the Authority shall inform the person affected and consider any representations made by it regarding the necessity for, time and manner of disclosure.

32.   Telecommunication regulations

   (1) The Minister, on the advice of the Authority, may from time to time make regulations governing the operation of telecommunication networks, the provision of telecommunication services or the use of terminal equipment.

   (2) Before advising the Minister to make any regulations contemplated in subsection (1), the Authority shall publish a complete draft of the proposed regulation and consider any representations made to it concerning the draft.

PART IV
RADIO SPECTRUM MANAGEMENT

33.   Duty of the Authority in respect of use of radio frequencies

   (1) It shall be the duty of the Authority to regulate access to, and use of, radio frequencies in Malawi so as to ensure the most efficient use of the radio frequency spectrum and to protect users of radio frequencies from interference in accordance with-

   (a)   the National Communications Policy;

   (b)   the recommendations of the International Telecommunications Union; and

   (c)   other international agreements entered into by the Republic of Malawi.

   (2) The Authority shall comply with any general directions given to it in writing by the Minister as to the manner in which it is to carry out its duties under this Part.

34.   Planning and management of the radio spectrum

   (1) The Authority shall be responsible for the management of the radio frequency spectrum and for this purpose may from time to time prepare and adopt in relation to any part of the radio spectrum a plan which defines how the radio spectrum shall be used.

   (2) Before adopting any radio spectrum plan, the Authority shall give notice in the Gazette of its intention, publish its proposals and invite interested parties to make representations either in writing or in person to it.

   (3) Any radio spectrum plan adopted by the Authority shall—

   (a)   minimize congestion in the use of frequencies;

   (b)   provide opportunities for the introduction of the widest range of telecommunication services and for the widest take up of such services as is practically feasible;

   (c)   encourage the introduction of new radio technologies;

   (d)   take into account existing uses of the radio spectrum and the cost of requiring any changes by existing users; and

   (e)   be published by the Authority.

   (4) The Authority shall maintain and make available to the public—

   (a)   a table of national frequency allocations; and

   (b)   a register of frequency assignments made and remaining in force.

35.   Requirement of licence for operation of a radio station

   (1) Subject to subsection (2), no person may operate a radio station in Malawi or between any place in Malawi and any other place except in accordance with a radio licence issued by the Authority.

   (2) The Minister, on the advice of the Authority, may make regulations to exempt from licensing a particular class of radio station or the use of a radio station for a particular purpose.

   (3) A radio licence shall be required in addition to any telecommunication licence where the operation of a telecommunication network or provision of a telecommunication service entails the use of radio.

36.   Kinds of radio licence

   (1) The Authority shall publish a schedule describing each kind of radio licence that may be issued under this section and the fees payable for each such licence.

   (2) A radio licence issued to any person by the Authority shall be in writing and shall specify—

   (a)   the purpose for which the radio station may be used;

   (b)   the place at which it may be located;

   (c)   the radio frequencies that may be used;

   (d)   conditions as to the nature of any transmissions that are made;

   (e)   the period for which the radio licence is valid;

   (f)   the fees payable by the licensee when the radio licence is first issued and annually while it remains in force; and

   (g)   other requirements that the Authority considers to be relevant in the light of its duties under this Act.

37.   Application for radio licences

   (1) The Authority shall publish the procedures by which each kind of radio licence may be applied for.

   (2) Licensing procedures shall be objective, transparent and non-discriminatory and shall specify the criteria by which a licence will be issued.

   (3) The Authority may grant or refuse an application for a radio licence taking into consideration-

   (a)   the proficiency of the applicant to operate and maintain the radio station for which he seeks a licence;

   (b)   the published criteria by which the licence will be issued;

   (c)   the extent to which issuing such a licence would be consistent with the principles stated in section 4; and

   (d)   whether or not the issue of such a licence is in the public interest.

38.   Competitive tendering process for radio licences

   (1) Where necessary to ensure efficient use of the radio frequency spectrum, and with the prior written approval of the Minister, the Authority may prepare and issue a public tender for a radio licence that grants exclusive rights to the used of particular radio frequencies or to their use for a particular purpose.

   (2) A tender issued under this section shall specify—

   (a)   the terms and conditions of the radio licence that it is proposed to issue as a result of the tender;

   (b)   the qualifications that bidders must demonstrate to be eligible to enter the tender;

   (c)   the timetable for the tender and for subsequent radio licence award;

   (d)   the criteria by which the result of the tender will be determined; and

   (e)   any fees that may be payable at any stage by bidders participating in the tender.

   (3) The Minister shall ensure that a tender held under this section is conducted in accordance with the procedure specified in the tender.

39.   Amendment of radio licences

   (1) The Authority may modify any term or condition of a radio licence if it considers it necessary in order to implement a frequency plan adopted by the Authority in accordance with this Part.

   (2) Before modifying any term or condition of a radio licence, the Authority shall notify the holder of the licence and consider any representation made to it by that person regarding the proposed modification.

   (3) In respect of any radio licence issued to a person authorized to provide telecommunication services or broadcasting services, no modification shall be made until that person has had a reasonable opportunity to take steps necessary to ensure continuity in the provision of the relevant services.

40.   Monitoring and enforcement of radio regulations

   (1) The Authority shall monitor the use of radio frequencies in Malawi in order to ensure that the terms and conditions of licences and regulations are being complied with.

   (2) The Authority may make an order requiring any person to comply with regulations in respect of—

   (a)   the operation of a radio station under the terms of a radio licence issued to him;

   (b)   the emission of electromagnet radio from equipment of any description.

   (3) The Authority may order a person to cease using apparatus or equipment of any description which, in its opinion, is causing harmful interference with radio communications otherwise than in accordance with the terms and conditions of the radio licence issued or a regulation made under this Part.

   (4) Any person affected by an order made by the Authority under this section may apply to the High Court for judicial review.

41.   Control of radio stations

   (1) The Authority may require a person whom it has reasonable cause to believe is a person required to hold a radio licence or other authority under this Part to produce his licence or authority.

   (2) If authorized by a warrant issued by a magistrate and accompanied by a police officer, the Director General may at all reasonable times enter premises which are owned or occupied by a person whom he has reasonable cause to believe is—

   (a)   operating a radio station in contravention of this Act; or

   (b)   causing harmful interference with radio communications.

   (3) The Authority may authorize in writing any other person to carry out on its behalf the functions set out in subsections (1) or (2) of this section:

   Provided that the conditions stipulated in subsections (1) and (2) are complied with.

   (4) A police officer having specific written authority from the Authority may seize a radio station which he has reasonable cause to believe is being operated in contravention of this Act.

   (5) Nothing in this section shall give any person a right of entry into a private dwelling house for the purpose of inspecting apparatus or equipment not designed or adapted for emission of radio frequencies.

42.   Revocation of radio licences

   (1) The Authority may revoke the radio licence of any person who—

   (a)   has made a declaration or statement which he knew to be false for the purpose of obtaining a radio licence or authority under this Act;

   (b)   has failed to furnish information, or has furnished false information, when requested or required by the Authority in accordance with the conditions of a radio licence issued to him or a regulation made under this Part.

   (c)   has failed to comply with the conditions of a radio licence issued to him after having been notified of the fact by the Authority and having had not less than twenty-eight days to comply;

   (d)   has, after a reasonable period, failed to make use of the radio licence for the intended purpose; or

   (e)   has failed to comply with an order made by the Authority under this Part, having had not less than twentyeight days to comply.

43.   Emergency powers in connexion with radio stations

   (1) The President may, on the occurrence of a public emergency and after consulting with the Authority make an order directing the Authority to-

   (a)   require the operator of any radio station to transmit a message relating to the emergency or in the interests of public safety or tranquillity; and

   (b)   take over a radio station specified in the order and any associated equipment and premises necessary for the proper working and maintenance of the radio station and to make the same available to an officer or authority of the Government.

   (2) Any property taken over pursuant to subsection (1) shall be returned to its owner when the President declares that the public emergency is at an end.

   (3) Reasonable compensation shall be paid from moneys provided for the purpose by Parliament to any person who suffers loss or damage through the exercise of the powers conferred by this section in such amount as may be agreed between that person and the Authority.

   (4) If a dispute arises as to entitlement to, or the amount of, compensation payable under subsection (3), the dispute shall be determined in accordance with the law relating to arbitration in force in Malawi and for that purpose the parties shall be treated as parties to a submission under the Arbitration Act.

44.   Radio regulations

   (1) The Minister, on the advice of the Authority, may make regulations with respect to radiocommunications other than the reception of broadcasting services.

   (2) The Minister, on the advice of the Authority, may make regulations in respect of the emission of electro-magnetic radiation from apparatus or equipment of any description in order to ensure that such apparatus or equipment does not cause harmful interference with radiocommunications.

PART V
REGULATION OF BROADCASTING

45.   Broadcasting policy

   (1) The Authority shall regulate the provision of broadcasting in Malawi in the manner which it considers is best suited-

   (a)   to meet demand for broadcasting services;

   (b)   to ensure the provision of regular news services and programmes on matters of public interest in Malawi;

   (c)   to provide for the broadcast of programmes in support of the democratic process through civic education;

   (d)   to promote the provision of a diverse range of broadcasting services on a national and local level;

   (e)   to promote the integrity and viability of public broadcasting services; and

   (f)   to ensure equitable treatment of political parties and election candidates by all broadcasting licensees during any election period.

   (2) The Authority may, where necessary and subject to subsection (1), seek the general direction of the Minister in carrying out its duties under this Part of the Act.

   (3) Any direction given by the Minister under subsection (2) shall be in writing.

46.   Requirement of licences for provision of broadcasting services

   No person may provide a broadcasting service in Malawi except in accordance with a broadcasting licence issued to that person by the Authority under this Part.

47.   Kinds of broadcasting licences

   (1) The Authority may issue broadcasting licences for radio and television broadcasting services of the following kinds—

   (a)   public broadcasting services;

   (b)   private broadcasting services; and

   (c)   community broadcasting services.

   (2) It shall be permissible for the holder of a broadcasting licence to broadcast text by radio in the course of his broadcasting service.

48.   Application for broadcasting licences

   (1) The Authority shall issue broadcasting licences in sufficient numbers to meet the public demand for broadcasting services.

   (2) When it intends to issue a broadcasting licence, the Authority shall publish a notice in the Gazette and in at least two issues of a newspaper in general circulation stating—

   (a)   the kind of broadcasting service that may be offered under the proposed licence;

   (b)   the coverage area of the broadcasting service;

   (c)   the radio frequencies that will be made available and other relevant technical parameters; and

   (d)   the procedure by which an application can be made, including in particular—

      (i)   the information which applicants must provide;

      (ii)   the criteria by which applicants will be assessed; and

      (iii)   the date by which applications must be received by the Authority.

   (3) Within twenty-eight days of the date specified for the receipt of applications under subsection (1), the Authority shall publish in the Gazette a notice summarizing any applications received and inviting persons to make representations regarding the Authority’s proposals and such applications.

   (4) The Authority shall maintain a record of each application for a broadcasting licence received by it, whether in response to a notice published under subsection (1) or otherwise, and shall make such records available to the public at its premises during normal working hours.

   (5) Before the Authority makes a determination on any application for a broadcasting licence, the Authority shall—

   (a)   notify each applicant of the representations that it has received regarding his application; and

   (b)   accord each applicant a reasonable opportunity to respond in writing or in person to such representations.

   (6) Where the number of suitable applications exceeds the number of licences that the Authority intends to issue, the Authority shall select the successful applicant or applicants according to the criteria notified under subsection (2) (d) (ii).

   (7) No broadcasting licence shall be issued to any association, party, movement, organization, body or alliance which is of a party-political nature.

49.   Public broadcasting licences

   (1) Before publishing a notice under section 48 which invites applications for a licence to provide a public broadcasting service, the Authority shall undertake and publish the results of a study of—

   (a)   the demand for the proposed public broadcasting service within the proposed coverage area;

   (b)   the likely effect on the existing broadcasting services in the coverage area; and

   (c)   the technical quality of the public broadcasting service, taking into account advances in broadcasting technology,

and shall obtain the approval of the Minister.

   (2) The Authority may invite any person holding a licence to provide public broadcasting services to its delegation to any international organization concerned with broadcasting.

50.   Control of private broadcasting services

   (1) No person shall directly or indirectly exercise control over more than one licence for a national private broadcasting service or be a director of a company or other body which directly or in concert with one or more other companies or bodies exercises such control.

   (2) No person shall directly or indirectly exercise control over more than two licences for local private broadcasting services or be a director of a company or other body which directly or in concert with one or more other companies or bodies exercise such control.

51.   Terms and conditions to be contained in broadcasting licences

   (1) A broadcasting licence issued by the Authority.

   (a)   shall be issued on payment by the applicant of the appropriate licence fee;

   (b)   shall state the radio frequencies that may be used and the technical parameters of the transmissions that may be made;

   (c)   shall specify the broadcasting services that may be provided and the coverage area; and

   (d)   shall be valid for a period of seven years from the date when it is published in the Gazette.

   (2) A broadcasting licence may only be issued on such terms and subject to such conditions as are consistent with the principles stated in section 4.

   (3) A broadcasting licence other than for a community broadcasting service may include all or any of the following conditions—

   (a)   the balance and equitable reporting during any election period;

   (b)   the provision of party political broadcasts during any election period;

   (c)   the broadcasting of news services and factual programmes;

   (d)   the broadcasting of programmes in support of the democratic process;

   (e)   the preservation of broadcast material;

   (f)   the provision of financial information relating to the broadcasting services provided;

   (g)   the limitation on the proportion of broadcasting time that may be allocated to advertisements;

   (h)   the limitation on the financial or voting interest in the licence held by one or more foreign persons to forty per cent:

   Provided that the Authority may include conditions (f), (g), and (h) in a licence for a private broadcasting service only if similar such conditions are included in all such licences.

52.   Code of conduct for broadcasting services

   (1) All broadcasting licensees shall adhere to the code of conduct for broadcasting services set out in Third Schedule.

   (2) All persons licensed under Part III to operate cable television networks shall ensure that programmes distributed by them adhere to the code of conduct for broadcasting services set out in the Third Schedule.

53.   Third Schedule Amendment of broadcasting licences

   (1) The Authority may amend a broadcasting licence only—

   (a)   to the extent necessary in the interest of efficient management of the radio spectrum and provided that the amendment will not cause substantial prejudice to the licensee;

   (b)   to the extent necessary to comply with any international agreement to which Malawi is party; or

   (c)   with the agreement of the licensee.

   (2) Whenever the Authority considers amending a broadcasting licence, it shall publish the proposed amendment in the Gazette and allow not less than twenty-eight days from the date of publication for any person to make representations.

   (3) Any amendment of a broadcasting licence made by the Authority shall not come into effect until it is published in the Gazette.

54.   Monitoring and enforcement of broadcasting licences

   (1) The Authority shall monitor compliance with the terms and conditions of broadcasting licences, with the code of conduct for broadcasting services and with other material provisions of this Act relevant to broadcasting licences.

   (2) The Authority may hold public hearings on any matter relating to the monitoring and enforcement of broadcasting licences.

   (3) Where the Authority determines that a broadcasting licensee has failed to comply with the terms and conditions of the licence, the code of conduct or the provisions of this Act, it shall notify the licensee in writing.

   (4) If, after hearing any representations made by a broadcasting licensee who has been notified in accordance with subsection (3), the Authority confirms the non-compliance, it shall publish its findings and the reasons for them.

   (5) Having taken into account the nature, gravity and consequences of the non-compliance, and after hearing any representations made by the licensee or any other interested persons in response to the publication of its findings, the Authority shall make any one or more of the following orders which it considers appropriate—

   (a)   requiring the licence to broadcast—

      (i)   a correction;

      (ii)   an alternative version;

      (iii)   a balancing opinion,

whichever is applicable;

   (b)   directing the licensee to desist from non-compliance;

   (c)   imposing a fine proportional to the effects of the non-compliance;

   (d)   directing the licensee to take appropriate remedial steps.

   (6) If the broadcasting licensee does not comply with an order under subsection (5), the Authority may prohibit the licensee from providing a broadcasting service for any period which, in the first instance, may not exceed thirty days.

55.   Complaints concerning broadcasts

   (1) The Authority shall publish the form and procedure as regards the adjudication of complaints concerning television or sound broadcasts.

   (2) Any person who has reason to believe that a broadcasting licensee has failed to comply with the terms and conditions of the licence or the code of conduct may lodge a complaint with the Authority within thirty days of the occurrence of the alleged non-compliance.

   (3) A complaint referred to in subsection (2) shall be in writing and, on receipt by the Authority, shall be notified to any licensee concerned.

   (4) After having considered a complaint and any representation in regard thereto, the Authority shall publish its findings.

   (5) The Authority shall keep a record of all complaints regarding broadcasting received by it and shall publish each year an analysis of them.

56.   Power to licence reception of broadcasting services

   (1) The Authority may require all persons who have in their possession a television set capable of receiving broadcast television programmes to obtain each year a licence to operate the set.

   (2) Before commencing to issue the television licence contemplated in subsection (1) the Authority shall commission an independent study of the options for the finance of television broadcasting and publish the results.

   (3) A television licence shall be available without any condition to any person who pays the prescribed fee.

   (4) The net proceeds from the issuing of television licences shall be used exclusively for the purpose of financing public television broadcasting services by MBC.

   (5) Malawi Posts shall enter into an agreement with the Authority and with MBC to issue television licences, to collect the fees and to account for the proceeds.

57.   Broadcasting regulations

   The Minister, on the advice of the Authority, may from time to time make regulations governing the provision of broadcasting services.

PART VI
REGULATION OF POSTAL SERVICES

58.   Duty of the Authority in respect of postal services

   The Authority shall regulate postal services so as to ensure that there are provided throughout Malawi good and sufficient postal services at rates consistent with efficient and continuous service, the financial viability of Malawi Posts and in accordance with the recommendations of the Universal Postal Union and other international agreements entered into by the Republic of Malawi.

59.   Policy directions by the Minister

   (1) The Minister may, after consultation with the Authority, give directions of a general or special nature to the Authority in relation to the performance of its functions and exercise of its powers under this Part.

   (2) Any direction given by the Minister under subsection (1) shall be in writing.

60.   Exclusive right of Malawi Posts to convey letters

   (1) Subject to the provisions of this Part, Malawi Posts shall have throughout Malawi the exclusive right of conveying letters weighing not more than 350 grams from one place to another and of performing all the incidental services of receiving, collecting and delivering such letters.

   (2) The exclusive right conferred on Malawi Posts by subsection (1) is not infringed by the conveyance and delivery of—

   (a)   a letter personally by a sender or by a member of the sender’s family;

   (b)   a letter by a messenger sent for the purpose;

   (c)   letters carried by a person having a business interest in the letters, and the collection of letters for that purpose;

   (d)   letters concerning goods sent with the goods and delivered therewith;

   (e)   letters carried to and from a post office;

   (f)   letters carried privately and delivered without hire, reward or profit.

61.   Licensing of mail services

   (1) Within one year of the transfer date the Authority shall issue to Malawi Posts a licence regulating the provision of services subject to the exclusive right granted to it by section 60.

   (2) Subject to the approval of the Minister and after consultation with Malawi Posts, the Authority may issue a licence to any other person for the doing of any act or the performance of any service falling within the exclusive right of Malawi Posts.

   (3) Any licence issued under subsection (2) shall be—

   (a)   for a period not exceeding twelve months to be stated in the licence; or

   (b)   subject to conditions requiring the licensee—

      (i)   to provide services within the licensed area to a standard equivalent to that prescribed for Malawi Posts;

      (ii)   to charge for services according to an approved tariff; and

      (iii)   to make an appropriate contribution to the costs of running a national postal service.

62.   Amendment of a mail licence

   (1) The Authority may modify the conditions of any licence issued under this Part if it is in the public interest to do so.

   (2) Before making modifications to the conditions of a licence issued under this Part, the Authority shall—

   (a)   publish a notice stating the reasons for the intended modification and giving any person with an interest in the matter the opportunity to make representations; and

   (b)   give due consideration to any representations regarding the proposed modification made to it by any person with an interest or holding such a licence.

63.   Charges and other terms and conditions of postal services

   (1) Malawi Posts shall publish, as respects any of the services provided by it, a statement specifying—

   (a)   the charges for the service, except in so far as they are the subject of a contractual agreement between it and a person availing himself of the service;

   (b)   the other terms and conditions which are to be applicable to those services; and

   (c)   the manner in which, the time at which and the person by whom the charges are to be paid.

   (2) A statement drawn up by the Malawi Posts under this section shall be submitted by it to the Authority for approval before publication.

   (3) Malawi Posts may recover a charge levied by virtue of this section in any court of competent jurisdiction as if it were a simple contract debt.

64.   Design, etc., of postage stamps

   (1) Subject to the conditions of its licence, Malawi Posts may issue such postage stamps as it may deem necessary for the purpose of this Part.

   (2) Before issuing any postage stamps, Malawi Posts shall—

   (a)   inform the Authority of the proposed design; and

   (b)   publish the proposed design in such manner as it thinks fit, and shall take into account any representations made to it concerning such design.

   (3) Malawi Posts shall not issue any postage stamp to whose design the Authority has objected in writing.

65.   Inviolability of mail

   (1) Subject to the other provisions of this section, no mail may be opened in course of transmission by post or be delivered to any other person than the addressee.

   (2) An employee of Malawi Posts may refuse to deliver or accept for delivery or may open any mail if authorized to do so by express warrant in writing of the Postmaster General.

   (3) The Postmaster General may grant a warrant to refuse to deliver or to open any mail in any individual circumstance if he has reason to believe that an offence may have been committed under this Act or under any other written law.

66.   Use of public transport for carrying mail

   (1) Any person providing a regular public transport service within Malawi shall, if requested by Malawi Posts or any other person holding a licence issued under this Part, carry mail between any places connected by that service.

   (2) The terms under which any person carries mail pursuant to subsection (1) shall be normal commercial terms and shall be determined by agreement between the parties or, in the absence of agreement, by the Authority.

67.   Transactions on behalf of the Government and local authorities in post offices

   (1) The Government and local authorities shall enter into contracts with Malawi Posts for Malawi Posts to do work consisting in the effecting of transactions of the Government and of local authorities during normal business hours in such parts of post offices as are open to the public during those hours for the transaction of postal business.

   (2) In consideration of its doing work for the Government or any local authority, Malawi Posts shall be entitled under any such contract to receive from the Government or the local authority payment for the work done that covers the costs incurred by Malawi Posts including the costs of capital employed.

   (3) In the event of a dispute arising concerning any aspect of such a contract, either party may request the Authority to make a determination.

68.   Financial services

   (1) Malawi Posts may, subject to the conditions of its licence, carry out financial services on its own account.

   (2) The financial services referred to in subsection (1) include—

   (a)   the issue of money orders, including postal orders;

   (b)   traveller’s cheques;

   (c)   giro services;

   (d)   the collection and payment of bills;

   (e)   the provision of savings services; and

   (f)   such other financial services as the Minister, after consultation with the Authority, shall approve.

69.   Postal regulations

   (1) The Minister, on the advice of the Authority, may make regulations generally with respect to the postal services, including but not limited to—

   (a)   the use of franking machines for prepayment of postage;

   (b)   specifying the conditions on which postage stamps may be accepted or refused for payment of postal and other charges;

   (c)   specifying any article which may not be sent by post;

   (d)   specifying the conditions for the registration and insurance of postal articles;

   (e)   specifying the conditions on which compensation may be paid for the loss of or damage to any postal articles;

   (f)   providing for the disposal of undelivered or uncollected postal articles; and

   (g)   specifying the conditions under which any financial services may be provided at a post office.

   (2) Before giving any advice under this section, the Authority shall consult with Malawi Posts.

PART VII
MALAWI TELECOM

70.   Incorporation of Malawi Telecom

   (1) The Minister of Finance shall form and register in accordance with the provisions of the Companies Act, a company limited by shares to be known as Malawi Telecommunications Limited (in this Act otherwise referred to as “Malawi Telecom”).

   (2) The Memorandum and Articles of Association of Malawi Telecom shall contain provisions which limit its activities to the operation of a telecommunication network, the provision of telecommunication services and other activities related thereto.

71.   Transfer of assets, etc.

   (1) Before the transfer date, the Malawi Posts and Telecommunications Corporation shall take steps to separate the postal network and postal services from the telecommunication network and telecommunication services.

   (2) On the transfer date, all property, rights, duties, obligations and liabilities which were comprised in the part of the undertakings of the Malawi Posts and Telecommunications Corporation concerned with the operation of the public telecommunications network and the provision of telecommunication services shall be transferred to Malawi Telecom.

72.   Election to transfer to employment with Malawi Telecom

   (1) Any employee of the Malawi Posts and Telecommunications Corporation whose duties relate wholly or mainly to the operation of a telecommunication network or the provision of telecommunication services may elect to transfer to the service of Malawi Telecom.

   (2) Any person who—

   (a)   was in the service of the Malawi Posts and Telecommunications Corporation immediately before the transfer date; and

   (b)   has elected to transfer to the service of Malawi Telecom not less than ninety days before the transfer date, shall enjoy terms and conditions of service after his transfer that are no less favourable than those he enjoyed before his transfer, and his previous service with the Malawi Posts and Telecommunications Corporation shall be treated as service with Malawi Telecom for the purpose of determining his rights to or eligibility for any pension, gratuity, leave or other benefits.

   (3) Any person who transfers to the service of Malawi Telecom in accordance with the provisions of subsection (2) shall not be entitled to receive any other compensation for having left the service of Malawi Posts and Telecommunications Corporation.

73.   Sale of shares in Malawi Telecom

   The Authority shall be consulted before the Minister of Finance may dispose of all or part of the Government interest in the shares of Malawi Telecom.

PART VIII
MALAWI POSTS

74.   Establishment of Malawi Posts

   (1) There is hereby established a corporation to be known as Malawi Posts Corporation (in this Act otherwise referred to as “Malawi Posts”) which shall—

   (a)   be a body corporate by that name with perpetual succession and a common seal;

   (b)   be capable of suing and being sued in its corporate name;

   (c)   be capable of acquiring and disposing of any movable or immovable property; and

   (d)   subject to this Act, have power to do or perform all such acts or things as a bodies corporate may by law do or perform.

75.   Duties of Malawi Posts

   (1) It shall be the general duty of Malawi Posts to provide all reasonable facilities for the transmission of postal articles throughout the Republic of Malawi and between the Republic of Malawi and other countries.

   (2) It shall be the duty of Malawi Posts to conduct its affairs according to commercial principles and in such a manner as to secure that, taking one year with another, its gross revenue from all sources is sufficient to meet outgoings properly chargeable to revenue account, including reasonable allocation to the general reserve and provision for the depreciation of capital assets and the repayment of loans; and, further, to ensure that its net operating income in any year is sufficient to secure an annual return on the value of the net fixed assets employed of such percentage as the Minister may from time to time direct.

76.   Powers and functions of Malawi Posts

   (1) Malawi Posts shall have power—

   (a)   to provide postal services and to perform other services incidental to transmission of postal articles;

   (b)   to establish and operate post offices; and

   (c)   to provide financial services.

   (2) Subject to the provisions of this Act, powers conferred by subsection (1) shall include power—

   (a)   to enter into such contracts as may be necessary for carrying out the purposes of Malawi Posts;

   (b)   to construct, acquire, maintain and repair buildings and premises and to carry out works required for the purposes of Malawi Posts;

   (c)   to acquire, manufacture, maintain and repair equipment and facilities required for the purposes of Malawi Posts;

   (d)   to levy rates and charges for any service performed by Malawi Posts or for the use by any person of the premises, equipment or facilities provided by Malawi Posts; and

   (e)   to represent the Republic of Malawi in matters relating to the Universal Postal Union, the Pan African Postal Union and such other international organizations as the Authority or the Minister may designate.

77.   Board of Directors of Malawi Posts

   (1) There shall be a Board of Directors of Malawi Posts which shall direct the operations of Malawi Posts.

   (2) The Board of Malawi Posts shall consists of—

   (a)   a Chairman appointed by the Minister;

   (b)   one member, not being a public officer or an employee of Malawi Posts, appointed by the Minister on account of his knowledge and experience in matters of postal administration or postal services;

   (c)   the Principal Secretary responsible for posts;

   (d)   the Secretary to the Treasury; and

   (e)   three other members, not being public officers or employees of Malawi Posts, appointed by the Minister by virtue of their knowledge and experience in law, commerce, industry, finance, public administration or public affairs.

   (3) A member of the Board of Malawi Posts, other than a member ex officio

   (a)   shall hold office for a period not exceeding two years from the date of his appointment;

   (b)   shall be eligible for re-appointment; and

   (c)   may resign his office by written notification in writing to the Minister.

   (4) Members of the Board of Malawi Posts shall be entitled to such remuneration, allowances and such other benefits as the Minister may, from time to time determine.

   (5) The Fourth Schedule shall apply in relation to the Board of Malawi Posts.

78.   Postmaster General

   (1) There shall be a Postmaster General who shall be appointed by the Minister on the recommendation of the Board of Malawi Posts.

   (2) The terms and conditions of service of the Postmaster General shall be determined by the Minister on the recommendation of the Board of Malawi Posts and specified in the instrument of appointment.

   (3) The Postmaster General shall be the chief executive officer of Malawi Posts and, subject to the general supervision and control of the Board of Malawi Posts, shall be responsible for—

   (a)   the day to day operations of Malawi Posts;

   (b)   the management of funds, property and affairs of Malawi Posts;

   (c)   the administration, organization and control of the staff of Malawi Posts.

   (4) There shall be a Deputy Postmaster General who shall—

   (a)   be appointed by the Board of Malawi Posts with the approval of the Minister;

   (b)   perform such functions and duties as may be assigned to him by the Postmaster General from time to time.

   (5) Subsection (2) shall apply mutatis mutandis to the Deputy Postmaster General.

   (6) The Postmaster General or, in his absence, the Deputy Postmaster General, shall attend meetings of the Board and of any committees of the Board and may address such meetings, but shall not vote on any matter:

   Provided that the person presiding at any meeting may, for good cause, require the Postmaster General or the Deputy Postmaster General to withdraw from such meeting.

79.   Other staff of Malawi Posts

   (1) The Board of Malawi Posts may appoint such other staff, subordinate to the Postmaster General, as the Board deems necessary for the discharge of the functions of the Malawi Posts under this Act.

   (2) The Postmaster General shall have the power to appoint staff of such junior ranks as the Board of Malawi Posts may specify.

   (3) The Board of Malawi Posts may pay to the persons in the employ of Malawi Posts, or provide them with, such remuneration, allowances, pensions, gratuities and other employment benefits as the Board may, after having obtained such professional advice as it may deem fit, consider as being competitive in the employment market in Malawi.

80.   Financing of Malawi Posts

   (1) The funds of Malawi Posts shall consist of—

   (a)   such sums as may be appropriated by Parliament for the purposes of Malawi Posts;

   (b)   such moneys or other assets as—

      (i)   shall vest in Malawi Posts by virtue of section 83;

      (ii)   may accrue to or vest in Malawi Posts by way of grants, subsidies, donations, bequests, gifts, subscriptions, rents, interest or royalties, from the Government or any other person;

   (c)   such sums as are derived from the sale of any property by or on behalf of Malawi Posts;

   (d)   such sums as Malawi Posts may charge in respect of its services.

   (2) Malawi Posts may, subject to any directions of a general nature which may be given to the Board by the Minister of Finance, invest such part of its funds as are not for the time being required for the purposes of its operations.

   (3) Subject to the Finance and Audit Act, Malawi Posts may borrow money for the purposes of Malawi Posts—

   (a)   by the issue of loan stock on such terms may be approved by the Minister of Finance;

   (b)   by way of overdraft or credits in Malawi or abroad with the approval of, and subject to such limitations as may be imposed by, the Minister of Finance.

81.   Accounts and audit

   (1) Malawi Posts shall keep proper books of accounts and other records relating to its accounts.

   (2) The accounts of Malawi Posts shall—

   (a)   be audited annually by independent auditors appointed by the Board of Malawi Posts and approved by the Minister;

   (b)   be examined by the Auditor General before being presented to the Minister in accordance with section 82.

   (3) The financial year of Malawi Posts shall end on 30th June.

   (4) The Minister may, by order published in the Gazette, prescribe a different date for the ending of the financial year of Malawi Posts.

82.   Annual report

   (1) As soon as practicable, but not later than six months after the expiry of each financial year, Malawi Posts shall publish and submit to the Minister a report concerning its activities during that financial year.

   (2) The report referred to in subsection (1) shall be in such form as the Minister, after consultation with the Authority, shall approve and shall include information on the financial affairs of Malawi Posts, and there shall be appended to the report—

   (a)   an audited balance sheet;

   (b)   an audited statement of income and expenditure; and

   (c)   such other information as the Minister may direct.

83.   Transfer of assets, etc.

   (1) Before the transfer date, the Malawi Posts and Telecommunications Corporation shall take steps to separate the telecommunications network and telecommunications service from the provision of postal services and the operation of post offices.

   (2) On the transfer date, all property, rights, duties, obligations and liabilities which were comprised in the part of the undertakings of the Malawi Posts and Telecommunications Corporation concerned with the provision of postal services and the operation of post offices shall be transferred to Malawi Posts.

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