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.