Inside new assets bill: Info not automatically accessible to the public

The new Declaration of Assets, Liabilities and Business Interest Bill going before Parliament this November or late this month is not an automatic answer for Malawians to freely access declarations, Weekend Nation has established.
The bill, which Attorney General Anthony Kamanga approved on Friday October 11, 2013 and is now ready for printing, shows that assets declaration will now be made to the Director of Public Officers Declarations who shall have powers to refuse people access to such information.
The bill still recognises declarations made under the would-be new law as “public information” but states that the declarations “may be accessible to members of the public upon application to the director.”
But Section 17 (2) limits this freedom: “The director may, if there are reasonable grounds taking into account the objectives of this Act, refuse access to declarations.”
According to Section 3, the objective of the would-be law is to “promote confidence in the public service, including in the offices of public and elected officials.”
“The guiding principles of the law are integrity, honesty, accountability, responsibility, fairness, transparency, rule of law, professionalism and impartiality of public officers,” reads the bill.
But the provision giving discretion to a director has not gone down well with chairperson of the Council for Non-Governmental Organisations (Congoma) Voice Mhone who thinks “that’s an automatic loophole”.
“In the absence of access to information law, the public will still be blocked. We would call upon authorities to quickly re-look into that loophole before presenting it to Parliament,” said Mhone.
Hope in the courts
But constitutional lawyer associate professor Edge Kanyongolo said the public can still have hope in the courts, saying the law “should be understood in the context of the constitutional provision on access to public information”.
Said Kanyongolo: “If the director, in the exercise of this discretion, interprets reasonable too broadly, I am confident that the courts should be able to quash that and grant access,” he said.
Kanyongolo gave an example where the courts once granted such access to opposition politicians who demanded to see ballot papers in an electoral dispute in 1999.
According to bill, the director will be appointed by the President but subject to approval of the Public Appointments Committee of Parliament.
Meanwhile, the would-be law has listened to public outcry to broaden the net to all public officers in positions prone to corruption.
The law has divided officials subject to its provision into three categories namely, political and elected officials, senior public officers and other officers.
But the draft bill has skipped President Joyce Banda’s proposals to include heads of non-governmental organisations and foundations.
The first category includes the President, the Vice-President, the Speaker and deputy speakers of the National Assembly; Cabinet ministers, Members of Parliament, leader and treasurer of a political part represented in Parliament, mayors and councillors of city councils and councillors of district and town councils.
Senior public officers will include the Chief Justice, the Attorney General, the Chief Secretary to Government, his/her deputy, judges of the High and Supreme courts, the Solicitor General, the Law Commissioner, the Ombudsman, the High and Supreme courts registrar.
Also in this category are the Director of Public Prosecutions, the Director of the Anti-Corruption Bureau (ACB), the Director of the Office of Director of Public Officers’ Declarations and the Inspector General of Police and senior officers of the rank of superintendent and above.
The list also includes the chancellor and vice-chancellor of public universities, the registrar of such universities and finance officers, the commissioner and deputy commissioner of prisons and officers in charge of prisons, the chief immigration officer, the Auditor General, the Director of the Department of Public Procurement, the Malawi Revenue Authority (MRA) commissioner general, his/her deputy and district commissioners and assistant district commissioners.
It also extends to the Army Commander and senior officers of rank of major and above, the Administrator General, the Registrar General, principal secretaries and their deputies.
The senior public officers’ category also includes chairpersons and board members, chief executive officers and their deputies of public bodies, parastatals, constitutional bodies and all other statutory bodies set up by an Act of Parliament.
Then there is the governor and deputy governor, the director and manager of the Reserve Bank of Malawi, the chief executive officer, the deputy chief executive officer of city, district and town councils and senior public officers or grade equivalent to director and heads of department.
The other officers category envelops judicial officers, procurement officers, officers in the Road Traffic Department, MRA officers, immigration officers, State advocates, legal aid advocates and public prosecutors, police traffic and investigative officers, the adviser to the President and Vice-President, the adviser to a Cabinet minister, accounting personnel and officers of the ACB.
Annual declaration update
All the above will be required to declare their assets and liabilities three months from entry onto office and failure will be punishable by law.
According to Section 14 (3) of the bill, a listed public officer shall submit to the director an annual declaration update return within 30 days after the commencement of each fiscal year and a declaration three months before expiry of service.
“A listed public officer who, without reasonable cause, fails to submit the required declaration within the time determined by the Act shall be liable to be dismissed from the public office,” reads the bill under offences.
And knowingly filing inaccurate or misleading declarations is punishable upon conviction. The offender shall pay a K500 000 (about $1 250) fine and would serve two years in jail plus earn a dismissal.
In cases of failure to declare, the directorate will have powers to disqualify an officer from holding public office for three years and refer such person to the ACB for investigations, among other measures.
The new law comes amid continued calls for President Banda to declare her assets since the time she was vice-president.
On Wednesday, Banda said that with the current law, Malawians have no right to force her to make public her assets—currently sitting in the office of Clerk of Parliament.
The President also fired her Cabinet on Thursday amid rampant corruption allegations and plunder of State resources that have seen some civil servants being caught with money in boots of their vehicles and houses.
The Pandora’s box was opened after the shooting of budget director Paul Mphwiyo about four weeks ago as he arrived at his house at night in Lilongwe.