Are we partakers in mankind’s giant leap?
t the disposal of the State in its efforts to govern and control society are not only the guns and bullets that we tend to fear but, more critically, the use and abuse of language. Call it strategic ambiguity or vagueness, politicians and others in power will couch legal and policy instruments in such a way that when a rainy day or the ideal time comes they can find the armour in the legal toolkit to punish those who don’t agree with them. They also use such intentional loopholes to manouvre themselves out of trouble. Such flaws in sensitive and politically charged laws are, by and large, not a result of technical incompetence on the part of the drafters, but a product of the larger scheme of things.
Those that are worried by the wording of the Electronic Transactions Bill, which is awaiting tabling in Parliament, have good reasons to fear that the State could use the legislation to restrict legitimate exercise of press freedom and freedom of expression. At issue are provisions in the Bill such as Section 28 which gives the State the power to deal with online publications that undermine ‘public order and national security.’ At face value, this may look like honest and innocent attempts by the State to punish those who abuse online platforms to harm others and the national interest, but in the absence of a clear definition of the public order and national security there is too much room for abuse and vengeance.
These are the issues that have understandably alarmed the likes of Misa Malawi chairperson Thomson Khanje. Historically, the State in Malawi and elsewhere has relied on vague and ambiguous laws to get even with people who threaten the interests of the ruling elite. In the name of promoting national unity, nation building and development, the MCP regime mercilessly swooped on innocent Malawians whose only crime was to disagree with Dr Hastings Kamuzu Banda and the party. Nobody in the party bothered to offer a convincing argument to support the assertion that free expression of ideas undermines these ideals.
During the reigns of Bakili Muluzi and Bingu wa Mutharika, the national interest was used to arrest journalists for daring to report issues that were clearly of interest to Malawians. To illustrate the point, I will use the example of the bizarre arrest of Mabvuto Banda and the late Ralph Tenthani after they reported that ghosts were haunting Mutharika in the New State House in Lilongwe. This piece of journalism was deemed by those in authority to have compromised state security and the national interest. Now if the national interest can be interpreted in this manner, what will stop the State from using the Electronic Transactions Bill to shut down online sites that do not support the regime’s narrative on issues? In Turkey and China, for example, the State has used such laws to close print, electronic and online publications simply for disagreeing with the people in power.
As Dr Fidelis Edge Kanyongolo will tell you, we already have a minefield of laws which the State could use to limit free expression and freedom of the media. The list of these silent laws is quite numbing and blinding. They include the Protected Flag, Emblems and Names Act which makes it an offence to insult, ridicule or show disrespect to the president, national flag, public seal or any other protected emblem or likeness. One wonders which national interest is safeguarded by this legislation.
The following laws also unduly and unjustifiably restrict Malawians’ right to freedom of expression and free media: Courts Act (Section 60); Criminal Procedure and Evidence Code (Section 366); Penal Code (Section 113(d)); Banking Act (Section 50); Reserve Bank of Malawi Act (Section 59(1)); Exchange Control Act (Section 8); Penal Code (Section 60); Penal Code (Section 61); Corrupt Practices Act (Section 49B); Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act of 2006 (Section 16); Official Secrets Act (Section 4(1)); Police Act (Section 25); Malawi Defence Force Act (Section 69); Preservation of Public Security Act (Section 3); Penal Code (Section 200); and National Assembly (Powers and Privileges) Act (Section 8).
Add to this list the proposed law for regulating online media, what we have is one suffocating environment that is not consistent with a free and democratic society we claim to be. Granted, the Bill in Parliament may have good intentions of bringing sanity to the online platforms which has been exploited by some irresponsible individuals and groups to pursue narrow agendas. However, you don’t deal with a problem by creating another one. It is possible to regulate the online media without imposing unnecessary limitations on freedoms that are duly protected by the Constitution.
My last word is that Parliament should reject the Bill unless it is refined to remove the parts that give the State arbitrary powers to restrict our freedoms. We should not allow those in power to satisfy their unlimited appetite to control our lives.
