Lawyers differ with APM on ATI
Lawyers familiar with Access to Information (ATI) law have expressed contrasting views to President Peter Mutharika’s assertion that the legislation cannot be implemented unless the Malawi Human Rights Commission (MHRC) Act is amended.
Mutharika told State-broadcaster Malawi Broadcasting Corporation in an exclusive interview recorded on Monday that there is more work to be done before the implementation of the law.
“We will need to amend the law because the current Act does not empower it to administer the ATI,” Mutharika is quoted to have said.
However, when The Nation sought reactions to the President’s statement, some legal experts differed with Mutharika, arguing that while there are several steps to be taken once a law is passed, implementation can still proceed without necessarily amending the MHRC Act.
Malawi Law Society honorary secretary Michael Goba Chipeta said in an e-mailed response to a questionnaire that while the MHRC Act does not specifically empower the commission to administer the ATI Act, there is no need to amend the MHRC Act because the ATI Act itself “abundantly gives such powers to the MHRC” to administer it.
He said since the law is not yet in effect, what needs to be done is for the minister (of Justice and Constitutional Affairs), pursuant to Section 1 of the Act, to appoint a date on which the Act shall come into operation and not amend the MHRC Act.
Commenting on the matter, private practice lawyer Mandala Mambulasa, who was one of the minds behind the ATI Act, also said, in his opinion, there was no need to amend MHRC Act before implementation can start.
He said: “In my considered view, what the Access to Information Act has done is simply to give the Human Rights Commission additional functions, and that law is adequate, as access to information already falls within the broad mandate of protection and promotion of human rights.
“I am further fortified in my opinion by the fact that I am not aware that the Human Rights Commission Act was subsequently amended following the passage and assent into law of the Gender Equality Act, which also gave the Human Rights Commission additional functions relating to its implementation. The reason is the same. Gender Equality Act falls within the broad mandate of protection and promotion of human rights.”
Mambulasa observed that the specific Part II and provisions in the ATI Act and the Human Rights Commission Act and the Malawian Constitution are adequate to enable the commission to start implementation without delay.
Media Institute of Southern Africa (Misa-Malawi) chairperson Thomson Khanje also agreed with MLS and Mambulasa, saying Mutharika should, for now, not be worried about the amendment aspect.
“The President has played his role to assent to the Bill and also ensure it is gazetted. The next thing we are expecting is to ensure that enough resources are allocated to MHRC to start implementing the law,” he said.
Constitutional law expert Edge Kanyongolo who was one of the initial architects of the ATI Bill also observed that when any law is passed various steps are taken before implementation, including changing the law.
However, he said this needs not to be a long journey as long as people behind it are acting in good faith.
“There is no justification to delay implementation of the law as long as implementation mechanisms are in place and the people are acting in good faith,” he said.
