Malawi: CHRR Accuses MDAs of Frustrating Implementation of ATI Act

28 September 2021

As Malawi joins the rest of the world in commemorating this year's International Day for Universal Access to Information (IDUAI), the Centre for Human Rights and Rehabilitation (CHRR) has accused government ministries, departments and agencies (MDAs) of sabotage for frustrating the implementation of the Access to Information (ATI) Act through continued withholding of public information.

CHRR executive director Michael Kaiyatsa observes that withholding of public information is still part of standard procedure in many MDAs, stating that there are numerous instances wherein Malawians have been denied access to public information by authorities.

In a press statement issued on Tuesday, Kaiyatsa cites the secrecy on the contents of the Public Sector Systems Review report, which has still not been released to the public despite calls by the citizenry for the recommendations to be made public.

"Another case in point is how Malawians have struggled to access information on how the K6.2 billion and the K17.2 billion Covid-19 funds were used. The ATI Act is also being undermined by the existence of legislation, which impede efficient and effective access to public information," reads the press release.

CHRR further notes that despite enshrining access to information as a right under section 37 of the Constitution of Malawi, and adopting an enabling legislation, there are still numerous statutes in Malawi, some dating back to colonial times, that promote government 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.

This provision applies to civil servants and members of the security forces, officials of the Anti-Corruption Bureau, the Financial Intelligence Authority, the National Audit Office, the Malawi Revenue Authority, the Reserve Bank of Malawi, the Malawi Bureau of Standards and others.

According to Kaiyatsa, the aforementioned section defeats the purpose of Malawi's Access to Information Act, 2017, whose main objective is to improve the flow of information from the government to citizens and ensure that citizens access the information held by government.

"CHRR is of the view that maintaining such provisions has rendered the ATI Act weak as some public officers have used the same to deny Malawians legitimate access to public information. It is for this reason that CHRR calls for the urgent review and repeal of the aforementioned section," says Kaiyatsa.

CHRR has since called upon the next sitting of Parliament to amend this law and all other laws that impede efficient and effective access to public information as a matter of urgency.

On a positive note, CHRR has commended the government for facilitating the review of some of the old statutes albeit the pace at which the reviews are done is not encouraging.

The human rights watchdog further laments that there are also other pieces of legislation passed after the Malawi Constitution was adopted that threaten access to information.

CHRR cites Section 24(e) (f) of the Electronic Transaction and Cyber Security Act of 2016, which empowers the 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 quite retrogressive as the internet is such an important source of information.

"We also note that section 24(1) of the 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 of which 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 general public in violation of human rights standards.

"Apart from the Electronic Transaction and Cyber Security Act, other laws that have provisions that encourage withholding of public information include the 2010 Police Act (section 143), and the Mines and the Minerals Act of 2019 (sections 38 (3) and (4)). Therefore, as we commemorate the International Day for Universal Access to Information, we urge authorities to review these legislations as one way of ensuring successful implementation of the Access to Information Act," concludes Kaiyatsa.

Meanwhile, ICT Association of Malawi (ICTAM) has installed President Dr. Lazarus Chakwera as the ICT Ambassador for Malawi.

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