CHRR calls for abolition of laws that counter freedom of expression

The Centre for Human Rights and Rehabilitation (CHRR) has called upon the Tonse Alliance administration to repeal all laws that suppress freedom of expression and, at the same time, seriously consider dropping all court cases related to freedom of expression.

The call follows reports that President Dr. Lazarus McCarthy Chakwera has made it a policy of his administration not to stifle freedoms that border on expression and peaceful demonstrations.

In a statement released on Monday, CHRR executive director, Michael Kaiyatsa, they have noted with interest the “policy position” that the government has reportedly adopted on the right to freedom of expression and the right to freedom of assembly.

Michael Kaiyatsa

Kaiyatsa adds that while they do welcome the move, they are concerned with the possible implications that this decision might have on the broader enjoyment of the human rights enshrined in the Constitution of Malawi.

“The alleged policy position seems to suggest that government can choose which rights to enforce and which ones not to enforce, which is contrary to section 15(1) of the Constitution of the Republic of Malawi. The aforementioned section states clearly that the human rights and freedoms enshrined in the constitution shall be respected and upheld by the executive, legislature, judiciary and all organs of the Government and its agencies. As per this section, it is not up to the government to choose which rights to uphold and which ones not to,” reads the statement.

On the positive note, CHRR has applauded the Chakwera administration for its commitment to uphold the rights to freedom of expression and peaceful assembly.

However, the human rights watchdog urges the administration to demonstrate this commitment by repealing all laws that stifle the rights to freedom of expression and peaceful assembly.

It further urges the administration to drop all court cases related to freedoms of expression and peaceful assembly.

“Article 35 of the Constitution of the Republic of Malawi states that “every person shall have the right to freedom of expression.” To the extent that expression may take various forms, the Constitution further guarantees freedom of expression by entitling everyone to freedom of assembly and demonstration, as well as the freedom to use the language and participate in the culture of his or her choice. Despite this enabling constitutional provision, there are many acts of parliament and other subsidiary legislation that continue to impact negatively on freedom of expression. Although efforts have been made by our organization and various other stakeholders to advocate for a reform of these laws, no significant changes have taken place and numerous legal restrictions continue to adversely affect the exercise of the right to freedom of expression,” says Kaiyatsa.

He cites Section 4 of the Protected Flag, Emblems and Names Act (Cap. 18:03), which makes it an offence to “do any act or utter any words or publish or utter any writing calculated to insult, ridicule or to show disrespect” to the President, the national flag, armorial ensigns, the public seal or any other protected emblem or likeness.

The other one is Section 200 of the Penal Code, which states that “Any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the misdemeanour termed “libel”.

Kaiyatsa also cites The Electronic Transactions and Cybersecurity Act of 2016, which provides for restrictions on online communications to “protect public order and national security,” as well as clauses that may enable network shutdowns or blocks on communications platforms. The law also penalises “offensive communication” via ICTs with penalties of fines or a maximum 12-month prison sentence, and places restrictions on encryption.

The last one is Sections 50 and 51 of the Penal Code, which establishes the offence of sedition and allow a fine up to K354, 845 (approximately US $ 480) and imprisonment of five years for first offenders and seven years for subsequent offences.

The government has used the aforementioned laws to restrict freedom of expression, offline and online.

Some of the recent arrests, include Joshua Chisa Mbele in January 2022 after he posted on his Facebook page an unauthenticated document with names of top government officials allegedly implicated in corruption, the arrest of a 20-year-old girl, Chisomo Makala, who is believed to have shared on social media a video clip that appeared to ridicule President Chakwera.

Makala was been released on bail. She was arrested in Chigwiri Township after police traced a phone number that she had used to share the video clip on a WhatsApp group called Mandota Comedy.

In April 2019, Tumpale Mwakibinga was arrested after he posted on his Facebook page a picture likening former first Lady Gertrude Mutharika to cartoon character Rango. He was charged with insulting the modesty of a woman, and cyber violation under the Electronic Transaction and Cyber Security Act.

On August 21, 2018, police arrested Manes Hale, an American citizen of Malawian origin, while she was boarding an airplane departing the country. The government charged her with insulting the president under section 4 of the Protected Flag, Emblems, and Names Act for critical remarks she wrote concerning the president on Facebook.

CHRR, therefore, calls upon the government to drop all the above and other cases related to freedom of expression and peaceful assembly, and to apologise to all those arrested to show that it is truly committed to protecting these freedoms.

“CHRR also calls upon the government to repeal all the laws that are infringing on these rights. Simply deciding not to enforce them is not enough. These laws should be scrapped totally as their mere existence has rights violating consequences,” says Kaiyatsa.

The Media Institute for Southern Africa (MISA) Malawi Chapter has also made similar calls for the repealing of the repressive laws in its separate statement.

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