Media Institute of Southern Africa (Misa) Malawi Chapter says there is nothing in the current Access to Information (ATI) Bill suggesting that in future Parliament cannot amend the ATI law.
Misa Malawi’s sentiments are in reaction to remarks made by President Peter Mutharika during a news conference at Kamuzu Palace in Lilongwe on Monday.
During the briefing, the President cited two clauses in the Bill which he said he had a problem with. Among the issues is a provision that would enable Malawians to recover any information that preceded the passing of the legislation and that no future Parliament would have power to change the law.
Said Mutharika: “The Bill has to take effect from the day I sign for it. That provision [law applying retrospectively] has to go. And we cannot say no future Parliament can change this law, Parliament is sovereign. That also needs to be corrected.”
However, in a statement issued yesterday, Misa Malawi board member and legal counsel Mandala Mambulasa said what the President said about future Parliaments not having power to amend the ATI law can never happen.
He said: “If we amend the Constitution, which is the supreme law of the land, how much more ordinary statutes such as the ATI law? The President was clearly mistaken on that point in our view.”
On retrospective application of the ATI Bill, Mambulasa said the President is right that a law does not generally apply retrospectively unless Parliament has stated so expressly in that statute.
He said there is no provision in the current ATI Bill that provides that the Bill, when it becomes law, will apply retrospectively as it will indeed apply from the date that the President will assent to it.
Said Mambulasa: “However, the ATI Bill has to be looked at in the light of other laws. For instance, the nature of this law is such that it is giving effect to sections 36 and 37 of the Constitution which have been there from 1994.”
He also said that the doctrine of retrospection is only invoked if it occasions some injustice or prejudice and the question is, what prejudice will information holders suffer if they provide information say, stating back to five years.
Ministry of Information, Tourism and Civic Education has promised that the Bill would be tabled at the Mid-term Budget Review which starts in February.
Mutharika, whose government has come under fire from donors, civil society organisations and Media Owners and Managers, among others, for failing to table the ATI Bill, has said government will not table the Bill to please donors, but because it is important for people to know what was happening in a democracy.
The European Union (EU) is withholding K80 billion in aid, among other donors pushing for the passing of ATI Bill.
On the other hand, Media Owners and Managers have petitioned Mutharika for his government to table the Bill and highlight the so-called inconsistencies but there has been no response. n