The Malawi Communications Regulatory Authority: Issues of De Jure and De Facto Independence

As independent regulatory agencies have been instituted to regulate
disparate economic sectors in countries around the world, some
research has focused on their independence vis-à-vis the governments
in the countries, respectively, and vis-à-vis the various operators in the
sectors they regulate in the countries. This article considers the formal
and informal independence of the Malawi Communications Regulatory
Authority from the government of Malawi, specifically focusing on
the executive branch of government. It shows that the respective provisions
in the Communications Act, 1998, that authorize the president
to appoint members to serve on the Authority and authorize the roles
that members of the executive branch of government have to play in
the internal organization, administration, financial affairs, and regulatory
activities of the Authority, cumulatively, undermine both the
formal and informal independence of the authority. Further, the article
contends that even the recent attempts to amend the law so as to
enhance the independence of the Authority fall short. Moreover, the
analysis herein has wider implications because this lack of independence
is not unique to the Authority in Malawi but affects the respective
communications regulators instituted by other countries in sub-
Saharan Africa. Ultimately, the article offers possible ways to enhance
the independence of the Authority and, by extension, these other
regulators.