Information ‘for sale’ law draws fire: Malawi govt asked to review ‘compromised’ bill

Media Institute of Southern Africa (Misa) Malawi Chapter and Media Council of Malawi  have expressed  concerned with the reading of the gazetted  Access to Information (ATI) Bill saying it has been watered down and undermine the spirit of accessing information.

The media institutions have since asked  government to review the bill before it is taken to parliament to be passed into ATI law.

Misa-Malawi and Media Council said in a joint statement  made available to Nyasa Times to “review” its position on ATI Bill which, in its current form, undermines rather than promotes the right to information as provided for in Section 37 of the Malawi Constitution.

“MISA-Malawi and the MCM observe that the ATI Bill gazetted by the government on February 19, 2016 does not meet the following principles that underpin a good ATI law:

• Effective Enforcement
• Maximum Disclosure
• Minimum Exemptions
• Public Interest override
• Simple, affordable & quick access procedures
• Whistleblower Protection

“The absence of these in the Bill adulterates the proposed law,”  reads a joint statement signed by Misa-Malawi and Media Council boss Thom Khanje and Professor Wiseman Chijere Chirwa respectively.

The media bodies said, should the government insist on tabling the “ compromised Bill” in the National Assembly,  they appeal to Members of Parliament (MPs) to “reject it without hesitation.”
The initial draft ATI Bill was a product of wide consultations with stakeholders, including government technocrats.

Among concerns are the introduction of fees for Malawians to access information to be determined by a public or private body “limited to reasonable, standard charges for document duplication, translation or transcription where necessary”, according to Clause 18.

The rights campaigners said charging of fees to access information is contrary to the spirit of the legislation, which is a realisation of Section of the Constitution under the Bill of Rights.

“The changes made to the Bill by the government smack of the desire to promote secrecy rather than transparency. We feel that these changes undermine the principles of ATI and could be construed as a deliberate ploy to serve the interests of a few,” observed the two media bodies.

They also expressed shock  that after years of consultations and redrafting, government has taken it upon itself to completely scrape off the establishment of an independent oversight body in the proposed law, and, instead, entrust that responsibility with an individual government Minister.

“The independence of ministers is always an issue of concern to us and entrusting enforcement of such crucial legislation to a Minister undermines the spirit of effective enforcement of this important law.

“We are also saddened that the principle of maximum disclosure has been compromised. The initial Bill had Clause 6, which provided for ‘invalidity of laws inconsistent with the provisions of the ATI legislation’.

The clause read: “Subject to section 3 (2) (c), the provisions of any other law in force immediately before the commencement of this Act which prohibits or restricts the disclosure of information in the custody or under the control of a public body or relevant private body to which this Act
applies, shall have no effect whenever the provisions of such legislation are inconsistent with the provisions of this Act…’

The clause has been removed in the gazette Bill.

However, section 3 (2) (c) on application of the law has been expanded to ‘exclude from
publication information under the Official Secrets Act.’ The Official Secrets Act is an archaic law that is inconsistent with the new constitutional order and undermines the principle of maximum disclosure and minimum exemptions.

“We maintain that an effective ATI regime calls for ‘disclosure of information as the rule’ and ‘secrecy the exemption.’ We feel scrapping off clause 6 above and recognizing the Official Secrets Act defeats the essence of the right to information and advances secrecy rather than transparency. We wonder what secrets the government has that it would like to protect,” reads the statement.

The media g bodies also pointed out that the principles of public interest override and that of
simple, affordable and quick access procedures have been  “compromised.”

The statement explains that  as it stands, the Minister has the power to decide a number of key areas in as far as implementation of the Act is concerned.

“ The Minister has the power to determine the form in which applications for information are to
be made, supplied and can even prescribe the kind of information that can be provided. Such an arrangement serves the interest of the Minister rather than the public and defeats the principle of public interest override.

“Further, the minister has the power to determine ‘fees payable for processing requests for information,’ and ‘the procedure for conducting reviews of decisions of information holders.’ We feel these provisions among others can be abused to serve political interests and not those of
Malawians.

“The Minister can easily propose exorbitant fees to bar or limit access and also develop regulations that protect people or information holders that serve political interest and limit access. We feel such important decisions should never be left to the dictates and whims of an individual.”

They further noted that  that sections that guaranteed the principle of ‘whistle blower protection,’ which is key in all ATI legislations, has been removed.

“This may be construed as a deliberate ploy by government to promote fear of reprisals by those who reveal wrong doing. Section 17 of the initial draft Bill clearly guaranteed protection for individuals who release information on wrong doing as long as their actions were in good
faith. The principle of whistle blower protection applies even where disclosure would otherwise be in breach of a legal or employment requirement. This is an important provision that needs to be upheld.”

Misa Malawi and Media Council said the gazetted ATI Bill has been “heavily compromised” and needs to be reviewed to ensure that the right to information is not defeated.

The European Union (EU) is withholding K80 billion in aid, among other donors pushing for the passing of ATI Bill.

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