Freedom of Information (MW0001)

Section 37 of the Malawi Constitution guarantees the right to information. However, there is no enabling legislation to regulate and operationalize access to information. Government adopted a policy on access to information. The Access to Information I Bill has been approved by Cabinet, its been gazetted and its awaiting enactment by the Malawi Parliament.

Main objective: To improve the flow of information from the government to citizens and ensure that citizens access the information held by government.

Brief description: The enactment of the access to information law underpins the need to realize the constitutional principles on right to information. Easy access to information increases transparency, which in turn, promotes accountability by enabling citizens to hold duty bearers to account for their actions.

Challenges: Limited access to relevant information by citizens of Government actions undermines achievement of development outcomes, weakens democracy and frustrates enjoyment of all rights. Limited public access to information on Government actions perpetuates a culture of secrecy, which undermines public confidence in public institutions and its officials.

Intended results: Increasing citizen access to information improves the quality of development and governance outcomes. Information enables citizens to know what is happening. Such knowledge increases citizen’s ability to hold duty bearers to account for their commitments and responsibilities as well as demand for enforcement of sanctions whenever accountability deficit occurs. Availability of information on human rights and breaches of these rights helps citizens to secure the protection of their rights. Access to information is also fundamental in delivering deeper, inclusive and more participatory forms of governance. By providing information on development and service delivery and obtaining feedback on matters that affect them, citizens are able to make more informed choices and decisions as well as respond better to opportunities.

1. Freedom of Information

Commitment Text:

The enactment of the access to information law underpins the need to realize the constitutional principles on right to information. Easy access to information increases transparency, which in turn, promotes accountability by enabling citizens to hold duty bearers to account for their actions

Milestones:

1.1. Cabinet approves Access to Information Bill and the Bill is gazette

1.2. Parliament enacts the Access to Information Law

Responsible institutions: Ministry of Information, Civic Education and Tourism

Supporting institutions: Office of the President and Cabinet, E-Government Department, Ministry of Justice and Constitutional Affairs, Media Institute of Southern Africa (MISA Malawi), Citizens for Justice, Malawi Human Rights Commission, Malawi Broadcasting Corporation, National Initiative for Civic Education, Zodiac Radio and TV, Malawi Communications Regulatory Authority (MACRA), Council for Non-Governmental Organization (CONGOMA), Daily Times – Print and TV and National Newspapers Limited

Start date: Not specified

End date: Not specified

Context and Objectives

Section 37 of Malawi’s Constitution stipulates that “every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.”[34] However, there has been no enabling legislation to regulate and operationalize access to information in Malawi. As a result, according to Transparency International, “the government does not publish enough information to allow citizens and civil society to judge the government’s performance in the provision of goods and services. This lack of information also provides politicians with the opportunity to allocate goods and services through clientelism, to “buy” political support.”[35] This commitment aims to ensure citizens are able to exercise their constitutional right to access government-held information. Specifically, it calls for approving the Access to Information (ATI) Bill in the Cabinet and enacting the Bill in Parliament. The ATI Bill is the part of the government’s National Access to Information Policy of January 2014, which calls for the enactment of ATI legislation.[36]  

Passage of the ATI Bill is clearly relevant to the OGP value of access to information. Additionally, Part IX of the ATI Bill provides whistleblower protection for the disclosure of violations of the law, mismanagement of funds, conflicts of interest, corruption, abuse of public office and risks to public safety.[37] Part VII establishes the right to an internal review by the information holder if access to requested information is denied, and Part VIII allows persons who have exhausted the internal review to apply to the Human Rights Commission to review the decision of the information holder.[38] These protections and review mechanisms make the commitment relevant to the OGP value of public accountability. While the commitment does not define the timeline for enacting the ATI Bill, the two milestones stated are verifiable actions. Therefore, the commitment’s specificity is marked as medium.

The passing of the ATI Bill is widely perceived as a major accomplishment by civil society stakeholders after 12 years of campaigning and negotiations with the government.[39] Human Rights Watch reports that the ATI Bill is especially important to mining communities in Malawi who will be able to access information for planned mining operations and the associated health and safety risks.[40] The Centre for Law and Democracy (CLD), using the RTI Ranking, a comparative tool for assessing the strength of right to information legislation, ranked Malawi’s ATI Bill as the 15th strongest right to information bill in the world, and the fifth strongest in Africa.[41]

However, while civil society has hailed the ATI Bill as a major breakthrough in securing the right of access to information, practical obstacles may limit the capacity of many citizens to effectively exercise this right. The Malawi chapter of the Media Institute of Southern Africa (MISA) has noted a variety of immediate, intermediate, and underlying obstacles to access to information. Such obstacles include:

·  high illiteracy rates,

·  limited willingness and ability of officials to grant access,

·  limited physical access to locations where information is stored (especially for rural Malawians, the majority of the population),  

·  low public awareness of the right to access public information, and

·  insufficient and inconsistent legal protection of human rights.[42]

While this commitment secures the legal foundation for access to information, the application of the right in practice will require a more holistic change in culture for public officials and the public. Had the commitment involved a long-term strategy to work with civil society to raise awareness of the right to information, the potential impact could have been transformative. As written, however, the potential impact is marked as moderate.

Completion

The initial draft ATI Bill gazetted in Parliament in February 2016 included several changes and exclusions that civil society stakeholders (such as MISA Malawi) found detrimental to the Bill. Notably, it removed the proposed Independent Information Commission (IIL) as the oversight mechanism, replaced the Malawi Human Rights Commission (MHRC) as the body to review appeals of disclosure refusals with the High Court, and did not provide whistleblower protection.[43] Parliament eventually rejected this modified draft Bill in July 2016 and referred the Bill to Media and Communications and Legal Affairs Committees for further scrutiny.[44] Following the recommendations of these committees, and after further campaigning by civil society stakeholders, Parliament passed the ATI Bill in December 2016 with the reintroduction of whistleblower protection and the reintroduction of MHRC as the oversight and appeals mechanism.[45] President Arthur Mutharika signed the Bill into law in February 2017, thus completing both of the commitment’s milestones.[46]

Since the presidential signing of the ATI Bill, there has been limited progress made towards its practical implementation. The Ministry of Information has not set a commencement date for implementation as the ATI Bill states (the provision to set a commencement date is open ended in the Bill). In July 2017, the government formed a 12-member steering committee to ensure the effective implementation of the ATI Bill. The committee members were selected from the MHCR, the Ministry of Justice and Constitutional Affairs (MoJCA) and the Ministry of Information and Information Technology (MoICT). The committee has reportedly begun drafting terms of reference and a draft roadmap for the implementation of the Bill.[47] Adequate funding is also a major issue towards implementation. According to MISA Malawi, the 2016-2017 national budget does not allocate specific funding to ATI activities, while a February 2018 budget review meeting resulted in cuts to the MHRC’s funding (to be explained in greater detail in the IRM’s End of Term Report). According to the civil society group ActionAid, the MHRC has stated that its current allocated budget for rolling out the ATI Bill is far too small for what would be needed to perform its tasks as the oversight mechanism.[48]

Next Steps

The passing of Malawi’s ATI Bill is a major achievement for civil society and a significant milestone towards improving the ability of citizens to exercise their constitutional right to access to information. Moving forward, the government should work closely with civil society to ensure the numerous and deeply entrenched obstacles that might limit the capacity for the public to access information are adequately addressed. This could involve carrying out awareness-raising campaigns in rural communities, ensuring illiterate citizens have adequate mechanisms to request and understand information, and providing the MHRC with sufficient funds to effectively serve as the oversight mechanism.

It is important to note that the ATI law and access to information more broadly go hand in hand with other initiatives in Malawi’s action plan, namely improving anti-corruption mechanisms and joining the Extractive Industries Transparency Initiative (EITI). For example, anti-corruption efforts could be strengthened by expanding the ATI law’s whistleblower protection guarantees, and special attention could be placed on accessing information on extractives industry contracts and licenses as Malawi moves towards EITI compliance.

1. Freedom of Information

Commitment Text:

The enactment of the access to information law underpins the need to realize the constitutional principles on right to information. Easy access to information increases transparency, which in turn, promotes accountability by enabling citizens to hold duty bearers to account for their actions

Milestones:

1.1. Cabinet approves Access to Information Bill and the Bill is gazette

1.2. Parliament enacts the Access to Information Law

Responsible Institution: Ministry of Information, Civic Education and Tourism

Supporting Institutions: Office of the President and Cabinet, E-Government Department, Ministry of Justice and Constitutional Affairs, Media Institute of Southern Africa (MISA Malawi), Citizens for Justice, Malawi Human Rights Commission, Malawi Broadcasting Corporation, National Initiative for Civic Education, Zodiac Radio and TV, Malawi Communications Regulatory Authority (MACRA), Council for Non-Governmental Organization (CONGOMA), Daily Times – Print and TV and National Newspapers Limited

Start Date: Not Specified

End Date: Not Specified

Commitment Aim

Although Section 37 of Malawi’s Constitution affords citizens the right to access government-held information, there was no enabling legislation to guarantee or operationalise this right. ^{Malawi’s Constitution: Section 37, http://unpan1.un.org/intradoc/groups/public/documents/cafrad/unpan004840.pdf} This commitment called for approving the Access to Information (ATI) Bill in the Cabinet and enacting the Bill in Parliament.

Status

Midterm: Complete

This commitment was fully implemented by the midterm. Parliament passed the ATI Bill during the November-December 2016 Parliament Seating. In mid-February 2017, President Mutharika signed the Bill into law. Earlier (in February 2016), several changes were made to the Bill, including the removal of both whistleblower protection and the proposed Independent Information Commission (IIL) as the oversight mechanism. ^{Media Institute of Southern Africa Malawi, “A Rapid Analysis and Assessment of the Access to Information Bill, 2016”, March 2016, http://crm.misa.org/upload/web/analysis-of-the-gazetted-ati-bill-2016.pdf} Following extensive civil society campaigning, these changes were reverted when Parliament referred the Bill back to the Media and Communications and Legal Affairs Committees for further scrutiny. ^{Chimkea, Rebecca. “MPs reject adulterated ATI Bill”, The Nation, http://mwnation.com/mps-reject-adulterated-ati-bill/}

However, since the presidential signing of the ATI Bill, there has been limited progress made towards its practical implementation. The Ministry of Information has not set a commencement date for implementation as the ATI Bill states (the provision to set a commencement date is open ended in the Bill). According to the Bill, the Malawi Human Rights Commission (MHRC) will oversee the implementation. The MHRC’s implementation tasks include raising awareness of the right to access information; making recommendations to government on declassification of information; making recommendations to government on matters related to legal framework; publishing guidelines; and submitting performance reports to the National Assembly. ^{Malawi Government. Access to Information Act, February 2017, Part II, 7-11, https://malawilii.org/mw/legislation/act/2017/13.}

The Executive Secretary of the MHRC indicated that the Commission is ready for the government to start the implementation process, arguing that insufficient funding seemed to be the underlying factor for the delay. However, the Ministry of Information did not provide the IRM researcher with any feedback on the delay. The IRM researcher contacted the Ministry of Information by email, and the Principal Secretary provided contacts for the Director who was charged with providing feedback. However, the Minister of Information has indicated that the Ministry is still working with the Ministry of Justice and the MHRC on the processes. ^{Zodiak Online, ‘MISA dares government on ATI law implementation’, https://zodiakmalawi.com/top-stories/misa-dares-govt-on-ati-law-implementation}

Did It Open Government?

Access to Information: Marginal

Public Accountability: Did Not Change

Although Malawi’s Constitution afforded citizens the right to access government-held information, prior to the passing of the Access to Information Bill, there was no enabling legislation to regulate and operationalise access to information. Limited public access to information on government actions perpetuates a culture of secrecy, which undermines public confidence in public institutions and their officials. The passing of the Bill thus provides Malawians with a legislative framework to exercise their constitutional right to request information, even though the actual implementation has stalled. The Centre for Law and Democracy (CLD), using the RTI Ranking, a comparative tool for assessing the strength of right to information, ranked Malawi’s ATI Bill as the 15th strongest right to information bill in the world, and the fifth strongest in Africa. ^{Centre for Law and Democracy, Malawi: Analysis of the Access to Information Bill, 2015, February 2016, http://www.law-democracy.org/live/wp-content/uploads/2016/02/Malawi.RTI_.Feb16.pdf .} The passage of the Bill has already provided positive changes in some government departments. For example, a 2018 study by the Media Institute of Southern Africa (MISA)’s Malawi chapter found that a number of government departments responded positively to information requests. ^{The Citizens’ Analysis of Government Openness by MISA, 2018, http://crm.misa.org/upload/web/transparency_assessment_malawi_2018.pdf}

However, while the passing of the ATI Bill is a major achievement for civil society and a significant milestone towards improving the ability of citizens to request government-held information, progress towards the Bill’s practical implementation remains limited, and the commencement date remains open ended. In July 2017, the government formed a 12-member steering committee to ensure the implementation of the Bill, but this committee is still inactive, and the government has not allocated sufficient resources to perform this task.

Although Part IX of the Bill states that whistleblowers “shall not be penalized (sic)… as a result of having made or attempted to make a disclosure of information obtained in confidence in the course of that activity, if the disclosure is of public interest.”, the actual penalities for victimising whistleblowers is not clearly delineated. ^{Malawi Government. Access to Information Act. February 2017. Part IX, 50, https://malawilii.org/mw/legislation/act/2017/13. The types of disclosure protected under Part IX (54) include (1) cases of violations of the law, (2) mismanagement of funds, (3) conflict of interest, (4) corruption, (5) abuse of public office, and (6) risks and threats to public health, safety and the environment.} This represents a major concern for some civil society stakeholders. For example, MISA-Malawi has indicated that, “there are no clear remedies or [penalties] when whistleblowers are victimised or penalised. In addition, the oversight body does not have enforcement powers. This leaves the courts as the best option for whistleblowers if victimised or penalised. Accessing the courts is, however, a costly and lengthy process, thus not easily accessible to most Malawians”. ^{Transparency in Action, State of Access to Information in Africa 2017, page 21, http://www.africanplatform.org/fileadmin/Content/PDF/Resources/State-of-ATI-in-Africa-2017.pdf}

Furthermore, the Bill’s passing and eventual implementation will not automatically open the government because of other inhibiting factors, including:

· high illiteracy rates and low levels of internet penetration,

· limited willingness and ability of officials to grant access,

· limited physical access to locations where information is stored (especially for rural populations),

· low public awareness of the right to access public information, and

· insufficient and inconsistent legal protection of human rights.

MISA, however, has already initiated awareness campaigns, which involve sensitising communities on how to utilise the provisions in the Bill once the implementation is announced.

Carried Forward?

At the time of writing this report, Malawi has not developed its next action plan.

The passage of Malawi’s ATI Bill is a major achievement for civil society and a significant milestone towards improving the ability of citizens to exercise their constitutional right to access to information. If, by the time of the next plan, the Bill is still not operational, the IRM researcher recommends including a commitment to push for this.