Malawi Political Delays vs. Civil Society Initiatives

6 November 2014

By Michael Kaiyatsa

The author is Training and Research Coordinator, Centre for Human Rights and Rehabilitation. This is a chapter in a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)

Malawi has demonstrated exceptional leadership in terms of ratification of African Union treaties that recognize the right to information, including the African Charter on Human and Peoples’ Rights, African Charter on Democracy Elections and Governance, African Union Convention on Preventing and Combating Corruption, African Charter on Values and Principles of Public Service and Administration, African Union Youth Charter and the African Statistics Charter[1].

In 2013 the Government of Malawi submitted the initial and combined state report in line with article 62 of the African Charter on Human and Peoples’ Rights. It is commendable that during the last two years the country took major steps to ratify major transparency and accountability treaties of the African Union and started complying with reporting under ACHPR. So far there is no pending report to ACHPR[2].

Malawi still has no specific law on Access to Information (ATI). However, following a decade of advocacy for an ATI law by MISA Malawi and other Civil society organizations, there has been good progress by the Malawi Government in ensuring that the Access to Information as provided for in the Constitution is concretized through an enabling policy and law.

The Constitution of Malawi has a specific provision on access to information, which reads:

“Subject to any Act of parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.”[3]

Unlike in other jurisdictions[4] the Malawi Constitution does not provide for a time frame within which the enabling Act would be passed. The absence of such timeframe has created laxity amongst government officials and MPs on the need to legislate Access to Information. In 2003, the Media Institute of Southern Africa in conjunction with other civil society organizations drafted an Access to Information Bill to operationalize the constitutional provision on access to information[5].

The Bill puts an obligation on all public authorities to make available to the general public or, on request, to any person information that is under its control. Every public authority is obliged to make available to the general public or, on request to any person access to its meetings and places where information may be obtained. The Bill further strengthens the right by providing that a person need not give a reason or justification for that person’s interest in the information being requested for.

The Bill also gives an obligation to public authorities to keep and maintain complete records and documents under its control for a minimum period of ten years from the date on which the document or record came under its control and after such period the public authority is required to transfer the record or documents in their entirety to the National Archives[6].

The delay in enacting the bill has been due to a number of factors, mostly political in nature. Political will has always been uncertain or ambiguous. The delay has also been rooted in the perceived fear that the media would use the laws as a gun to force the government to disclose classified information. Information is power and there is always a fear that once the media has full access to public information, the government may lose its clout and political muscle.

Some experts have also pointed to the existence of a wide range of statutory laws that act as barriers to access to information. In his study, Kanyongolo (2012) cites twenty–two Acts of Parliament containing provisions that act as barriers to access to information. Such statutes include; Official Secrets Act (1913), Corrupt Practices Act (1995), Defence Force Act (2004), Criminal Procedure and Evidence Code (1967), Preservation of Public Security Act (1960) and the Presidential and Parliamentary Elections Act (1993).

In January 2014, Malawi’s cabinet adopted a national access to information policy[7]. The adoption of the policy was hailed by activists as a major step towards the enactment of the ATI bill. The lack of policy was cited by the government as the main reason why the bill was not tabled in previous Parliaments. The government argued that the bill had to be backed by some regulatory policy framework.

The drafting of the policy itself took two years largely due to financial and commitment challenges. At cabinet level, the policy nearly got thrown out by some cabinet members who were of the view that the bill should be sent back to the Media and Communications Committee of Parliament for further scrutiny. The suggestion was counter–argued by some cabinet members, leading to the passing of the policy in January 2014.

The current administration has shown commitment to pass the ATI bill into law. Presenting a ministerial statement on the status of the Access to Information bill in parliament on 27 June 2014, Malawian Information Minister, Kondwani Nankhumwa said the government would table the bill in the next sitting of Parliament due to start in September 2014[8]. However, latest information indicates that government has postponed tabling of the bill to the next sitting of Parliament. The Daily Times newspaper reported that the deferment has been made to allow government to conduct further consultations on the bill. “After going back to the drawing board, we realised that there were still some consultations to be done. During the last two months we had to consult Principal Secretaries among other groups because this whole thing is touching on government releasing sensitive and confidential information,” Information Minister Hon. Nankhumwa was quoted as saying[9]. The paper also reported that the parliamentary committees on Media and Communication and Legal Affairs and the Ministry of Justice are other stakeholders that need to be consulted. The committees were re–constituted after the May 2014 elections. Reacting to the development, Media Institute for Southern Africa (Misa–Malawi) Chairperson Antony Kasunda said the delay is understandable considering that the Ministry of Justice was handed the draft bill some three weeks ago.

The importance of ATI law in Malawi cannot be over emphasized. Apart from rendering the processes of government more open and making those in power more accountable to their people, the ATI law will be a critical tool in combating corruption, which is endemic in Malawi. The law will, for instance, enable Malawians to know how the government, banks and some selfish individuals mercilessly plundered taxpayers’ money in the infamous corruption scandal christened “Cashgate”[10]. For many Malawians, reading the Cashgate Forensic Audit Report was an infuriating and frustrating experience; frustrating because the report failed to name names and identify the individuals and corporations that had been allegedly involved in this historic raid on the public treasury[11].

The names of those involved in the scandal were withheld allegedly to safeguard the rights of the individuals concerned to privacy and fair trial. If enacted, the Bill would enable Malawians to demand full disclosure of these names.

All in all, the fact that the ATI bill and policy were drafted and are awaiting consideration by the cabinet is a major step towards the enactment of ATI legislation in Malawi. A huge amount of work has been done already but critical stages still remain. Without a strong political commitment to the passing of legislation and its implementation, backed by adequate resources and strategies to break down longstanding cultures of secrecy, the efforts may be in vain. The need for strong coalitions at different levels, therefore, cannot be overemphasized. However, even with the law in place, there might still be

some resistance on the part of public officers to disclose information. On the other hand, the public may not be fully aware about their rights to access public information. This calls for massive public awareness programmes, focusing on both the supply and demand sides of the access to information equation, which can be championed through sectoral coalitions.

Recommendations

The Government of Malawi is commended for ratifying key African Union treaties on transparency and accountability as well as prioritising citizen engagement through membership to key platforms like the Open Government Partnership[12], Extractives Industry Transparency Initiative[13] and Construction Sector Transparency Initiative[14]. The government is urged to consolidate these initiatives by urgently adopting a national freedom of information law.
Whereas Malawi is commended for joining the Open Government Partnership, the process of setting up a national coordination mechanism and drafting a country action plan has been delayed. The government should revive these processes by setting up an OGP Steering Committee with civil society representation and prioritising the passing of the freedom of information law, among other transparency initiatives in the action plan.
For a long time, the failure to comply with the provisions of the ACHPR was a major concern. Malawi should keep the process of reporting and implementing recommendations of ACHPR as required.

1 http://www.au.int/en/treaties

2 http://www.achpr.org/states/malawi/

3 Section 37 of the Constitution of Malawi

4 For example, the Constitution of the Republic of South Africa put a specific time frame when the Act of Parliament would be passed.

5 http://www.publiclaw.uct.ac.za/research/ANCL_info/country_survey/malawi/ accessed 11/08/2014

6 Section 14 (1), (2) & (3) of the bill

7 http://mwnation.com/malawi-adopts-access-information-policy/ accessed 9/08/2014

8 http://www.nyasatimes.com/2014/06/28/malawi-information-bill-this-september-minister/ accessed 9/08/2014

9 http://timesmediamw.com/malawi-govt-shifts-tabling-of-information-bill/ accessed 17/09/2014

10 http://www.transparency.org/news/feature/malawi_time_for_action_on_cashgate_corruption_scandal accessed 9/08/2014

11 http://www.voanews.com/content/auditors-under-pressure-to-release-names-of-malawi-cashgate-suspects/1865395.

html accessed 22/08/2014