CHRR revisits Access to Information law
Every year the world commemorates International Day for Universal Access to Information on September 28. On the occasion of this commemoration, this year, the Centre for Human Rights and Rehabilitation (CHRR) issued a statement in which it talked about access to information. EDWIN NYIRONGO engaged CHRR executive MICHAEL KAIYATSA on the importance of this commemoration as it relates to Malawi, and other matters. Excerpts:
What is the significance of the International Day for Universal Access to Information?
This day is important as it provides an opportunity to reflect on the importance of universal access to information and the implementation of the Access to Information laws around the world.
Since it was proclaimed at the 74th UN General Assembly, on October 15 2019, this day has also provided a crucial opportunity to raise awareness about the importance of access to information for sustainable development and democracy consolidation.
In your statement, you talked about Malawi’s failure to fully implement access to information?
First of all, we appreciated the commitment shown by the Government of Malawi to ensure that the right to information becomes a reality in this country. This commitment was displayed through the operationalisation of the Access to Information (ATI) Act on September 30 2020.
But we have observed that this significant milestone is being undermined by continued failure by public authorities and entities to fully comply with obligations under the ATI Act. For example, we have noted that some government ministries, departments and agencies [MDAs] have not yet appointed information officers as required by Section 12 of the Act.
We have also noted that despite the operationalisation of the Act, the culture of secrecy continues in government. It looks like withholding of public information is still part of standard procedure in many MDAs. There are numerous instances where Malawians have been denied access to public information even by the top leadership.
What is your real concern?
It is not enough just to have a piece of legislation in place. Government should do more to ensure implementation of the ATI Act. We want to see public authorities making information available to the public, even in the absence of a request.
What examples do you have that government is still holding on to information?
A clear example is the Public Sector Systems Review report which has not been released to the public despite calls for the same citizenry. It seems authorities have not fully understood and accepted the idea that public authorities hold information on trust, and on behalf of the public.
Another example is how Malawians have struggled to access information on how the K6.2 billion and the K17.2 billion Covid-19 funds were used.
We have also noted that government has secretly abandoned the K1.7 billion Tele-centre project, which was aimed at providing access to information communications and technology (ICT) in rural communities. Abandoning this project without informing Malawians and seeking their views is contrary to the ideals of the ATI Act.
In your statement you said lack of legislation is frustrating ATI implementation, what do you mean?
What we mean is that although we have the ATI Act, which aims at ending government secrecy, there are still numerous statutes in Malawi—some dating to colonial times—that promote secrecy and withholding of public information.
One such statute is the Official Secrets Act (Cap 14:01). Under section 4(1) of the Act, every person is prohibited from disclosing a wide range of information, including any official information which the person has accessed by virtue of working in government.
Section 38 Sub-sections 3 and 4 of the Mines and Minerals Act of 2019 allow mining companies to keep information confidential for two years after the expiry or termination of the contract.
Such provisions have rendered the ATI Act weak and ineffective as some public officers have used the same to deny Malawians legitimate access to public information. It is for this reason that we have called for the urgent review and repeal of the aforementioned section and all other laws that are not in tandem with the ATI Act.
Some of the laws also pose a threat to access to information online. For example, Section 24(e) (f) of the Act empowers government to restrict online communications to “protect order and national security” and to “facilitate technical restriction to conditional access to online communication”. This provision is retrogressive as the Internet is such an important source of information.
We also note that section 24(1) of the ATI Act guarantees freedom of online communications, stating that “there shall be no limitation to online public communication”. However, Article 24(2) seems to contradict that assertion by providing grounds under which online communication may be limited. Some those grounds are inconsistent with international law. In practice, such clauses may allow government to limit access to Internet or aspects of it, effectively denying free access to information that is vital for meaningful public participation in governance affairs. The provisions may, for example, enable the government to implement Internet shutdowns, rendering Internet-based communications inaccessible or effectively unavailable to the public in violation of human rights standards.
You also said government is taking long to make some changes on ATI law. What if government says it is trying its best looking at the period it has been in power?
Nobody is asking it to bite more than it can chew. It is, in fact, unrealistic for anyone to expect government to fulfil all of its obligations under the ATI Act in one year.
The international human rights framework allows for progressive realisation of rights. In relation to the right to information, “progressive realisation” implies that government must be seen to be taking steps and measures towards realisation of the right to access information held by public officials.
We are celebrating that Malawi has an ATI law. But many barriers remain even with the ATI Act itself. For example, the Act requires applicants to wait for 15 days for information, and says officials may reject a request. Such a rejection can be appealed, but that can take several months. There will be need to review the law to ensure that it serves Malawians better, but this is not something that can be done in the short-term.
What’s your take on sensitive issues in relation to access to information?
Of course, not all information can be disclosed. Part IV of the ATI clearly identifies information which should be exempted from public disclosure. Among others, such information includes Cabinet records which, according to section 28(2) of the Act, shall be declassified after 30 years.
Section 29 of the Act restricts disclosure of personal information while Section 30 restricts disclosure of information that preserves national security.
Apart from such restrictions, all other information should be disclosed to the public.
Government has always complained about Internet abuse. Won’t ATI increase the malpractice?
A world with less Internet abuse is desirable and worth striving for. However, Internet abuse should not be an excuse to restrict people’s access to the Internet. In a country where less than 14 percent of the population has access to Internet, government should be investing resources in getting more people connected to the Internet. In this 21st century, the Internet has become one of the principal means by which individuals exercise their right to freedom to receive and impart information and ideas. Government should be doing more to free up access to the Internet, rather than restricting it.
Generally, how do you assess Malawi in terms of access to information?
We are far ahead of other African countries because we have specific legislation promoting access to information. Other countries are still behind in this regard. But having a law is one thing; and implementing the same is quite another. Malawi should ensure that its access to information law is translated into practice.
