Information bill: The good, the delays and the fears

In the second part of the series aimed at popularising the Access to Information Bill, currently at the Ministry of Justice, Weekend Nation explores its importance and the fear over its delay.

People of M’baluku in Mangochi, in January this year, gave their council an ultimatum to finish constructing a classroom block, alleging that about K21 million meant for the project had been abused. Mangochi District Council officials, in response, argued that the people based their accusations on misinformation.

Nankhumwa: Waiting for the Ministry of Justice
Nankhumwa: Waiting for the Ministry of Justice

In Karonga, there is an unrelenting conflict between communities in the district and Paladin Africa Limited, the Australian company mining uranium at Kayelekera in Karonga.

The communities have always maintained the argument that Paladin is not fulfilling the development agreement it signed with government in 2009 regarding the welfare of people in Karonga.

On the other hand, Paladin maintains that it had, already, fulfilled most of the projects it was supposed to implement as outlined in the agreement.

However, what is key, the reference point, in this conflict is the development agreement the two signed in 2009. The agreement has always been kept under wraps. Even some parliamentarians do not understand its contents.

The question is: How informed in their demands are communities in Karonga when most of them have not accessed the agreement document?

How honest, in its response, can Paladin be when, faced with heavy criticism, they provide answers to an uninformed public?

In all the two cases, one thing emerges: the battle between officials with access to information on the one hand and the majority with little access to information on the other.

Often, officials—enjoying the privilege of having unlimited access to critical information—deliberately hide it from the public in a quest to control the masses.

However, it must be underlined that poor information flow causes public officers to be viewed with suspicion; at the same time, public officials view the public as fault-finders to be avoided or told as little as possible.

Such a setting, like how it was during 31 years of dictatorship under Kamuzu Banda, is counter-productive to democracy. Democracy, the system Malawians opted for in 1993, demands governments to be accountable and transparent to the people. However, this cannot be achieved if people do not have access to information which is central to providing informed checks and balances.

It is in view of such situations that the drafters of the country’s 1995 Constitution made a specific provision on access to information in Section 37.

“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,” reads the section.

However, legal experts argue that constitutional guarantees, like Section 37, without supporting statutory provisions or jurisprudence, do not in themselves ensure freedom of information.

The need for statutory provisions saw, in 2003, the beginning of the drafting process of the Access to Information bill, championed by Media Institute of Southern Africa (Misa) Malawi Chapter.

Unfortunately, 12 years since, the bill is yet to be presented to Parliament for debate and passing into law or rejecting it.

Tellingly, the delay in enacting the bill has had tremendous effects on the freedoms of people as there is no mechanism for timely response to citizen requests for government information, says Thom Khanje, Misa Malawi chairperson.

Khanje underlines that Malawians are true owners of information and he adds that government only keeps it for them ‘on trust’. The longer government delays in tabling ATI, he notes, the longer Malawians get denied their constitutional right.

“Somehow,” Khanje admits, “the public has mistakenly viewed the bill as belonging to the media. I am sure this has been the case because, we, the media, have always stood out championing it.”

However, Khanje underlined that the bill is for every Malawian—something Human Rights Consultative Committee (HRCC) Chairperson Robert Mkwezalamba and Malawi Law Society (MLS) Secretary Khumbo Bonzoe Soko agree with.

“It is not just for the journalists but everyone both in Malawi and abroad. The bill will help in breaking networks and cliques’ that people use for clandestine connections as it will make things public and accessible to everyone hence we have equal opportunities,” says Mkwezalamba.

He goes further to say the bill, if passed into law, would enable people to know why they were left out of university or secondary school selection lists or why they cannot be employed by government.

Soko argues that ATI access goes beyond facilitating the work of journalists as it is an integral aspect of the process of public involvement in governance.

“It empowers the citizenry to be involved in governance. By passing this piece of legislation, the government would not be doing its people any favour. It would be meeting its obligations under the Constitution,” he explains.

He adds that MLS is committed to the ideal of an open and transparent government and it will continue to be vocal advocates for the passing of the bill.

“It’s an issue we have raised with both the Executive and parliamentary leadership and we hope it’s something that can be expedited. We need to understand that the Constitution enjoins those who exercise powers of state to be open, transparent and accountable. This can only be done if citizens have access to the on-goings of public functionaries and institutions,” he says.

Soko also underlined that delay in having this piece of legislation, 20 years after Malawi adopted the new Constitution, is inexcusable.

“Perhaps our politicians need to be reminded that this is not an initiative that should be feared. If fully embraced and implemented, it may actually have the effect of improving the quality of decision-making processes by our public functionaries.

“Opacity in the conduct of public affairs does not help the masses. Government business conducted in dark and secret corners is likely to be attended with more illegality and impropriety than that conducted in the full view of the masses,” he explained.

Just like Soko, Public Affairs Committee (PAC) publicity secretary, Father Peter Mulomole, wonders as to why the bill is yet to be passed.

“Our leaders want to cling to powers that doesn’t belong to them. They are afraid to govern a knowledgeable, educated and empowered nation. They hate being challenged,” he says.

On the other hand, project officer for Centre for Human Rights and Rehabilitation (CHRR) Makhumbo Munthali notes that beyond advocating for the bill’s tabling and enactment, the media and the civil society should now begin to interrogate government on measures it has put in place to popularise the bill.

“Apart from Misa Malawi and other civil society initiatives, little has been done by government to popularise the bill. There has been lack of ownership and grounding of the bill on the part of government, a scenario that poses serious questions on whether the currently much-talked political will on the part of government is truly genuine political will or not, and whether it shall be translated into action once the law comes into force for the benefit of ordinary Malawians,” he says.

He adds that beyond that, the media and civil society should also interrogate government on implementation measures put in place once the bill is passed.

“There is almost nothing that government can show to the public as having put in place to ensure effective operationalisation of the bill once passed into law. It seems government’s eyes, just like many stakeholders, have not gone beyond the passing of the ATI law.  None of government officials has come out in the open to tell the public what steps they have put in place to ensure effective implementation of ATI,” he says.

The fear, he adds, is that government may table the bill, as frequently promised, in the next parliamentary seating just to score a political point in the eyes of the media and the civil society who have over the years advocated for the tabling and passing of the bill, and just end there—a scenario that may erode all the gains and efforts registered over the years.

However, Minister of Information, Tourism and Culture Kondwani Nankhumwa, who has reiterated government’s commitment to see the ATI tabled, says they are just waiting for the legal processes currently underway at the Ministry of Justice where the bill is being vetted.

Nankhumwa could not commit to a timeframe since the issue is being handled by another department, but hoped it would be handled expeditiously so that they too would act.

“Once they give it back to us, we will do the needful and send it through the necessary processes,” he says.

**Additional research and reporting by AJJUSSAH LEORNARD


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