Despite the Access to Information (ATI) Bill providing for the ease of access to public information, there are many other laws that stand in the way. How will ATI negotiate through them? EPHRAIM NYONDO continues the access to information series.
Here is a scenario: President Peter Mutharika is to address the nation regarding the escalation of killings of persons living with albinism in Mangochi.
In the address, the President will spell out an action plan on how, within two months, government will completely eliminate the problem.
Every Malawian is keen to the address and they have their eyes and ears glued to their television screens and radio, respectively, to catch the address live. They want to access the information that, arguably, is critical in ending the problems of killing of people living with albinism.
But the media equipment meant to cover the President live is supposed to travel by road from Blantyre to Mangochi.
Unfortunately, with increased robbery activities in the country, the police, within the legal mandate, have erected ten roadblocks between Blantyre and Mangochi.
They are thoroughly searching any vehicle and detaining those with details that cannot be explained. With increased number of vehicles on the road, the vehicle carrying the media equipment is delayed along the way. They arrive in Mangochi while the President is making his last salutations. They have missed his address.
Given the scenario, who, after missing the address, would the public blame for failing to access the presidential address — the public information?
The police, according to the country’s laws, are legally mandated to erect a roadblock anywhere they so wish as long it helps them track and detect any crime activity.
But, as it is in the given scenario, they put up a roadblock which ends up being a barrier that restricts the right of the public to access critical information for their lives?
Would the law that mandates the police to put up a roadblock anywhere not infringe or stand on the right of the public to access critical information for their lives?
It is not just the police legal mandate to put up a roadblock anywhere.
It must be underlined, here, that despite constitutional provision for access to information and a comprehensive ATI bill, Malawi has a wide range of statutory provisions that prohibit disclosure and also limit access to some types of public information to members of the public.
The uncertainty created by the continued existence of restrictive legislation, experts argue, sometimes makes it hard for public officials to know exactly how much to disclose.
If one law tells them to release information but another tells them they will be prosecuted for any unauthorised disclosures, officials will most likely err on the side of caution and continue to withhold information, notes a 2013 Tilitonse research report titled The Political Economy of Access to Public Information in Malawi.
In his 2012 study, Chancellor College associate professor of constitutional law Edge Kanyongolo cited 22 Acts of Parliament which have provisions that act as barriers to access to information.
Such statutes include: Banking Act (1989), Capital Market Development Act (1990), Competition and Fair Trading Act (1998), Corrupt Practices Act (1995), Criminal Procedure and Evidence Code (1967), Defence Force Act (2004), Employment Act (2000), Malawi Revenue Authority Act (2000), Malawi Bureau of Standards Act (1972), Mental Treatment Act (1948), Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act (2006), National Assembly (Powers and Privileges) Act (1957), Official Secrets Act (1913), Political Parties (Registration and Regulation) Act (1993), Preservation of Public Security Act (1960), Presidential and Parliamentary Elections Act (1993), Protected Places and Areas Act (1960), Public Audit Act (2003), Reserve Bank of Malawi Act (1989), Science and Technology Act (2003), Treaties and Conventions Publication Act (1984), Veterinary and Para-Veterinary Practitioners Act (2001).
Given such a background, it is unarguable that the public, even if ATI is passed into a law and gazzetted, will find it tough to access public information.
So what should be done?
Kanyongolo argues that these laws must be subjected to judicial challenge for inconsistency with the constitutional guarantee of the right to access public information.
Secretary for Malawi Law Society (MLS) Khumbo Bonzoe Soko says this will have to be a process to which every Malawian must have to fully commit.
“There are a lot of laws on our statute books that are not reflective of the values that underlie a liberal democracy which our Constitution established in 1994 envisaged,” he says.
He adds most of these [laws] were passed decades ago during the one party state and what runs through most of them are the ethos of that time.
“[The ethos then were of] secretive government that did not as a matter of constitutional obligation account to its people. We obviously need to review them so as to align them with the new constitutional order,” he explains.
However, private practice lawyer, Mandala Mambulasa, who took part in the drafting of the ATI law, proposes three options in dealing with the problem.
“First of all, we must recognise that not all information held by public authorities or private bodies that are caught by the proposed Access to Information Bill can be accessed by every person. In fact, even the proposed Access to Information Bill recognises the fact that some information is exempted from disclosure in sections 7, 8, 9 and 11 among many others,” he begins.
Secondly, he adds, the most ideal solution to these different pieces of legislation that unreasonably hamper access to information is to have them reviewed so that they are in line with the dictates of our Republican Constitution and also Malawi’s international human rights obligations.
“However, we all know how slow the process of law review can be. Even when a piece of legislation is reviewed, it also takes time for our Parliament to enact the recommendations into law.
“So, for those pieces of legislation that are currently under review by the Law Commission or those that are up-coming on their calendar of events, I would urge all stakeholders to take interest and make submissions on those provisions that unreasonably restrict access to information so that they are either modified or where necessary repealed in their entirety,” Mambulasa explains.
The other strategy, he further explains, is that, while waiting for the law reviews of all those pieces of legislation mentioned, institute constitutional litigation to challenge those specific provisions that unreasonably hamper access to information so that they could be struck down or indeed read-down by the High Court in order to facilitate access to information.
“All these processes must be taking place simultaneously,” he says.