MISA Malawi and the Media Council of Malawi (MCM) would like to appeal to government to review its position on the just-gazetted Access to Information (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.
This statement was originally published on misa.org on 26 February 2016.
MISA Malawi and the Media Council of Malawi (MCM) would like to appeal to government to review its position on the just-gazetted Access to Information (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. Should the government insist on tabling this compromised Bill in the National Assembly, MISA-Malawi and the MCM requests 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. 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.
We are shocked 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 above 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.
We also feel that the principles of public interest override and that of simple, affordable and quick access procedures have been compromised. 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.
We further note 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.
With the above, we feel that the gazetted ATI Bill has been heavily compromised and needs to be reviewed to ensure that the right to information is not defeated.
MISA-Malawi and the Media Council of Malawi therefore call on government to review its position on these matters. We have confidence in government and strongly believe that our request will be considered.
We also request Members of Parliament to reject the current adulterated version of the Bill as it is not in line with recommendations and general consensus from various stakeholders who participated in the 10 year period of its drafting.
Signed
THOM KHANJE
CHAIRPERSON, MISA-MALAWI
Prof. WISEMAN CHIJERE CHIRWA
CHAIRPERSON, MCM
