Let me, first of all, congratulate The Times Group for scooping 19 awards across print, radio and radio categories at the Media Institute of Southern Africa (Misa) Malawi 2024 World Press Freedom Day Media Gala and Awards held in Mangochi last weekend. Congratulations to Sam Kalimira for scooping the overall winner accolade. Congratulations to winners from all media houses.
A crab that has just escaped the fisherman’s net should first count its legs before throwing a party, so the saying goes. On September 30 2020, the Malawi Government, under the leadership of President Lazarus Chakwera, took a bold step to enact the Access to Information Act (ATIA), four years after the law was assented to by former president Peter Mutharika. Former minister of Information Gospel Kazako was quoted by the media as touting the administration of Chakwera for effecting the law, describing the move “as a step towards ending secretive operations on part of government and public institutions”.
The operationalisation of the ATIA created an aura of excitement amongst Malawians, including development partners. We had all the reasons to celebrate.
ATIA aims to provide access to information that is held by public information holders.
Section 5 of ATIA reads: “A person shall have the right of access to information in so far as that information is required for the exercise of his rights, which is in custody of, or under the control of a public body or a relevant private body to which this Act applies, in an expeditious and inexpensive manner.”
The Malawi Human Rights Commission (MHRC), which is mandated to oversee implementation and enforcement of the ATIA, has to be commended for, so far, playing its rightful role. There were instances where MHRC took decisive action on errant government ministries, departments and agencies (MDAs).
However, almost four years since its enactment, it appears we are far from realising tangible gains from this piece of legislation.
In a statement released on May 3 2024, Misa lamented some MDAs’ failure to comply with requests for information on “flimsy grounds”.
The sentiments came after MHRC directed the Ministry of Foreign Affairs to provide information to Nation Publications Limited journalist Suzgo Chitete in line with provisions of the ATIA. Chitete had requested for information on staff and diplomats in Malawi’s foreign missions but the request hit a snag on grounds that the information would compromise national security. However, the commission ruled that the Ministry had “not provided evidence that the personal information of the diplomats and other personnel can compromise the national security of Malawi”.
There could be many Malawians out there whose requests were turned down in a similar manner.
Interestingly, while complaining about non-compliance by MDAs, the commission has, of late, equally lamented lack of interest in utilising the ATIA among citizens.
However, I believe that there could be a number of factors that could have the potential to discourage citizens from doing so. Major factors could be MDAs’ reluctance to provide information and MHRC’s interpretation, or guidance, on some provisions of the law, especially sections 15 and 16 on proactive disclosure of information.
Recently, MHRC and civil society organisations (CSOs) differed on information related to contracts. The commission’s position was that contract documents are not entirely public information as some of them might contain private information which needed to be protected. MHRC Director of Civil and Political Rights, Peter Chisi, is quoted in The Daily Times of April 16 2024 as saying that whenever office bearers are disclosing such information, “they must actually focus on disclosing the content, in terms of who the contractors are, what services they are providing, the duration of the contract and the value”. This, in MHRC’s interpretation, is the relevant information that could promote transparency. Ironically, the information being referred to has always been readily available in the public domain— even before the enactment of the ATIA.
I am not sure whether this simplistic approach to the disclosure of information is in tandem with the spirit of the ATIA. As feared by some CSOs, this guidance could fuel abuse of public resources.
During the formative years of the ATI Bill, I was part of the delegation that visited Civic Offices in Cape Town, South Africa (SA). Our visit coincided with a hearing during which a contractor sought—under that country’s Public Access to Information Act (PAIA)— information about why his bid was not successful. We witnessed a session during which a panel of those involved in the evaluation of bids took the complainant through the records. They even shed light on the evaluation process. Ultimately, the contractor was convinced with reasons why his bid was not successful. I doubt if this information infringed on the privacy of those that were awarded the contracts, apart from helping to fend off suspicion about how the contracts were awarded.
Perhaps, MHRC should get to the bottom of the reasons behind this non-compliance. For instance, is it because users of the ATIA regulations were not thoroughly consulted during the drafting process of these regulations?
Above all, those in custody of public information should walk the talk. Simply giving lip service to the ATIA may only fuel mistrust. Maybe we celebrated too soon.
