The Peter Mutharika Cabinet has removed provisions in the Access to Information Bill (ATI) that President Peter Mutharika declared “inconsistent”, but which are important to supporters of the proposed law.
Government has gone further to remove Malawi Human Rights Commission (MHRC) as the oversight body on the right to information, our review of the now gazetted Bill shows.
The Bill was gazetted on February 19 2016 and has since appeared on the Order Paper of Business for the ongoing Mid-year Budget review meeting of Parliament under notices as Bill No. 1 of 2016.
In removing MHRC as the body that raises awareness of the right to review decisions of information holders with regard to requests for information, government complicates the people’s ability to challenge authorities for information.
The commission initially had powers to obtain information for purposes of reviewing denials of access to information, but the gazetted Bill states that Malawians will have to go to court for review of decisions of information holders, but only after an unsuccessful internal review.
While the old Bill provided for all public institutions to submit reports to the commission stating the categories of information that have been proactively disclosed by the institution where and how such information can be easily accessed by members of the public, this provision has been scrapped.
Instead, Clause 11 (formerly Clause 18) indicates that a minister would report to Parliament “general activities of information holders.”
The Cabinet has also scrapped a provision that information holders should disclose information in the public interest regardless of the information being exempted from public disclosure.
Public interest information, according to the Bill presented to Cabinet included: miscarriage of justice, abuse of authority or negligence in the performance of an official duty, unauthorised use of public funds or the avoidance of wasteful expenditure of public funds.
In the Bill that first went to Cabinet, an information holder was mandated to disclose information for public interest if there was a danger to health or safety of a person or the public; the need to protect the environment and if there was a need to improve public participation in, and understanding of public policy making.
But this section, which fell under Clause 38 of the Bill presented to Cabinet, has been scrapped.
Cabinet has also introduced fees for Malawians to access information contrary to the spirit of the legislation, which is a realisation of Section of the Constitution under the Bill of Rights.
The fees, not stated in the Bill, will 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.
Clause 24 (3)of the Bill before gazetting had indicated a uniform scale of fees for processing requests which a minister would prescribe on recommendation from the commission (MHRC), but this provision has been removed.
Cabinet has also increased to 60 days the period during which public bodies have to make disclosures of certain categories of information after enactment of the legislation from the initial 30 days.
President Mutharika and his Cabinet have proceeded with the threat to remove Clause 6, which invalidated any other laws restricting the disclosure of information and stopped future parliaments from passing laws which infringed on the rights and obligations of the ATI law.
At a meeting between Mutharika and several Cabinet ministers on one hand and Media Council of Malawi, Media Institute of Southern Africa (Misa-Malawi) alongside media managers on one hand last month, Mutharika said the provision—prohibiting future parliaments from tinkering with the ATI law—would never be part of the legislation as long as he was President. He warned he would veto the law if passed with alleged “irregularities”.
Clause 3 (1), which stated that people could demand information that came into existence before the law was enacted, has also been scrapped.
Now the clause reads: “This Act shall apply to information in the custody or under the control of any public body, relevant private body or other information holders listed in the Schedule hereto.”
Minister of Justice and Constitutional Affairs had also expressed reservations with the establishment of an Independent Information Commission and the government has instead proposed MHRC.
But in the gazetted Bill, even the commission has been removed as an oversight body.
In reaction, Levi Kabwato, who is regional advocacy officer for Open Democracy Advice Centre (Odac) said after offering hope of the ATI being enacted, the version government wants to send to the House floor is unacceptable.
“We are disheartened that after so much hope and prospects, the Bill that is being put forward appears to undermine access to information than advance it. We urge a review of the decisions that have been taken and encourage that the people of Malawi—the beneficiaries of ATI—be prioritised on this matter,” said Kabwato, a long time ATI campaigner.
Misa Malawi chairperson Thom Khanje said his body’s legal team and Media Council of Malawi were analysing the draft bill and would come up with a position soon.
Media Council of Malawi chairperson Prof Wiseman Chijere Chirwa confirmed yesterday that the two bodies would be issuing an official statement on the Bill after a thorough analysis.
Minister of Information, Tourism and Civic Education Jappie Mhango justified changes on MHRC, saying government wants to reduce bottlenecks and that the commission has no capacity to handle the oversight role, so the courts will be used in place of MHRC if people have complaints about not getting information as requested.
Mhango said it will be the Ministry of Information that will be responsible for raising awareness and liasing with the public and information holders.
When queried on the capacity of the ministry to sensitise people to ensure depoliticisation of the process, Mhango said that would not happen.
“We are trying to shorten the process and remove bottlenecks. As you know MHRC is only available in Lilongwe, but with the High Court, a person can come from Chitipa to Mzuzu and lodge a complaint if denied information.”
On introduction of fees, Mhango said the idea was to stop Malawians from being used to free services.