Cut the Chaff

ATI Bill passing: The devil is in the latest version

 

Finally, Parliament has passed the Access to Information Bill (ATI) after years of intense lobbying by civil society organisations (CSOs), including the Media Institute of Southern Africa (MISA-Malawi Chapter) and the Media Council of Malawi (MCM).

It became increasingly clear that the Democratic Progressive Party (DPP) administration was reluctant to have a strong and effective ATI Law.

The Peter Mutharika Cabinet had removed crucial provisions in the Bill that President Peter Mutharika claimed were “inconsistent”, but which are important to supporters. In the end—after government’s delaying tactics—the Bill passed and the majority appears to have won, but have they?

Of course, there is still President Mutharika’s mighty pen between the passing of the Bill and its full enactment as the law of the land.

However, the most crucial issue is whether the outstanding matters that the administration had removed or added that advocates were worried about, have been sorted out.

In an analytical piece for The Nation, my colleague Suzgo Khunga identified several things that the administration had changed that, if most of them are intact in the version that Parliament passed, would render the future law ineffective.

Here are some critical areas government mutilated in the Bill:

  • Removal of Malawi Human Rights Commission (MHRC) as the oversight body on the right to information. There was a hint yesterday that the Bill had retained MHRC’s original role in ATI, but I have to see the wording to be sure. Scrapping the State-funded body as the authority on raising awareness of the right to review decisions of information holders with regard to requests for information complicated the people’s ability to challenge authorities for information. In the original Bill, the commission had powers to obtain information for purposes of reviewing denials of access to information, but the gazetted Bill stated that Malawians would 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 was scrapped. Instead, Clause 11 (formerly Clause 18) indicated that a minister would report to Parliament “general activities of information holders. That is the kind of bureaucratic maize and political machination that won’t help the information seeker.
  • Cabinet 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, was scrapped.
  • Cabinet 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 removed 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.

These were some of the crucial changes the Mutharika administration made to the ATI Bill. Are the changes still there? I will have to wait until I look at the Bill that Parliament passed, line by line, before celebrating.

This is because if most of those Cabinet changes are intact, this would be a hollow victory because they defeat the letter and spirit of the law; hence, it would not serve the purpose for which it was coined.

So, for now, I reserve my jubilation because, as they say, the devil is in the detail and I am looking forward to the latest version of the Bill to make up my mind. n

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