President Peter Mutharika’s comments over what he calls ‘inconsistencies’ that are in the Access to Information (ATI) Bill have drawn criticism, with some suggesting that by faulting the Bill, the President is in fact suggesting that the Ministry of Justice is incompetent.
Mutharika made the comments at a press conference in Lilongwe on Monday where he highlighted two ‘inconsistencies’ in the Bill that he said needed to be corrected before it is taken to Parliament.
He faulted the retrospective application of the Act and a clause in the Bill, which he said prohibits Parliament from repealing the law once it is passed.
Said Mutharika: “There are a number of issues in that Bill. We have for example, a provision in the Bill which says that the Bill will cover any information that happened before the Bill was enacted. That means you can go back to 1891, when this country was created… there is no way we can say that. The law comes into effect the day I sign.”
He added: “It [also] says, in future no Parliament can ever repeal this law. Parliament is sovereign, it can pass any law or repeal any law, including the Constitution…. You cannot say future Parliament cannot change this law. You cannot do that. That has to be changed.”
The Daily Times has seen a copy of the Draft ATI Bill, dated October 31 2015, authored by a Kahaki Jere ending with the name Kalekeni Kaphale who is listed as Attorney General.
Having gone through the 46- page proposed Act word after word to locate the said clause. The Daily Times could not come across any section which prohibits repealing of the Act.
It should, however, be highlighted that at the beginning of the Bill, it has been stated that the Revised Access to Information Act, is subject to change.
Therefore, either Mutharika knows something we do not know or he just told the nation less than the truth when he claimed that the ATI Bill has a clause prohibiting Parliament from repealing it once it is passed into law.
Law professor, Edge Kanyongolo, said since the Bill passed through the Ministry of Justice, the ‘inconsistencies’ being cited are a product of the Ministry’s incompetence.
“My first comment is that what he says suggests that the Ministry of Justice is incompetent. On retrospective application, the information that is held by the State is there for the people, whether it is generated today, yesterday, or hundred years ago.
“What is there to hide in the information being talked about? In fact, the information that we are interested in is the information that was generated in the past,” Kanyongolo said.
He stressed that the right to information will not be provided by this Act.
“It has always existed. It’s part of human rights. Access to Information was put in the Constitution 21 years ago. These rights will not be provided by this Act. They have always been there since 1994. Section 37 is the one that says everyone has the right to information. This right is not being created in 2015,” Kanyongolo said.
He said he would be surprised if the proposed Act has a section which prohibits repealing of the Act.
“Every Act of Parliament can be amended at any point. There is no Act that can be exempted from parliamentary amendment. That worry should not be there at all. The President should not worry about that at all, and the Ministry of Justice is aware of that. Let’s not forget, this Bill is coming from the Ministry of Justice,” he said.
Timothy Mtambo, Executive Director at Centre for Human Rights and Rehabilitation, whose organisation is in favour of the Bill, said it seems government is afraid of the law and that it is obsessed with churning out lies.
Mtambo said government is showing all signs of being confused and said Mutharika’s government cannot inspire support from donors if it keeps sitting on an important bill such as the ATI.
“My message to APM [Mutharika] is that Access to Information is a tool to build trust and address corruption! He and his government should tread carefully in the way they are handling issues of national importance.
“The country is at a very critical stage, nothing is ticking, our social service delivery system is getting to its knees in all government departments, people are struggling to get basic needs such as food, water, medication, electricity the list continues. Yet what we hear from our government is resistance to the will of the people and challenging them, this is a great threat to our democracy and development.
“They must stop once and for all. They cannot turn all of us into hand-clappers! We are ready to support and help them, we love them but we love this country more. As such, we will not sacrifice our duties as democrats,” wrote Mtambo in a WhatsApp response.
Misa Malawi Chapter board member and legal counsel Mandala Mambulasa faulted Mutharika’s statement, saying there is no clause in the current ATI Draft Bill that stipulates that once enacted, Parliament would not be able to repeal it.
“That can never happen. If we amend the Constitution, which is the supreme law of the land, how much more ordinary statutes like the ATI law? The President was clearly mistaken on that point in our view,” he said.
Mambulasa also argued that since the element of access to information has always been there in the Republican Constitution, the ATI will help people ask for information dating back to many years.
“In addition, the doctrine of retrospectivity is only invoked if it occasions some injustice or prejudice. So, the question is, what prejudice will information holders suffer if they provide information say, dating back to five years?” he said.
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