I took part in the meeting between media managers and President Arthur Peter Mutharika last Thursday and I should probably have raised the issue below during that meeting.
But that was not possible due limited time, so I have once again resorted to this forum to discuss some issues on the Access to Information Bill.
When Mutharika first commented on the so called ATI Bill, particularly regarding a provision which bars Parliament from amending the law once passed into law, the reaction from the Media Institute of Southern Africa (MISA-Malawi) was that there was no such provision in the bill.
Indeed, MISA Malawi was right since the original bill as drafted by a stakeholders’ task force did not have that provision. That provision was apparently added by the Ministry of Justice.
The problem is that after going through the drafting process at the Ministry of Justice, the bill was not shared with the stakeholders before it was presented to cabinet. The stakeholders were therefore not aware about the changes and were surprised when President Mutharika mentioned this provision during the press conference in December.
What is surprising is that Minister of Justice, Samuel Tembenu, failed to defend the bill and the particular provision in the cabinet meeting considering that it was his ministry which made the change that contributed significantly to the rejection in the cabinet.
Even during the meeting between media owners and President Mutharika in Lilongwe last Thursday, Tembenu still tried to play innocence and instead cornered MISA Malawi legal counsel Mandala Mambulasa over this provision.
The admission Tembenu made about letting the provision through to cabinet even after the cabinet committee on legal affairs had recommended its removal should have included a confession that this section was actually included in the bill by his own officials in the Ministry of Justice and not the task force that drafted the bill.
It is clear that the president’s impression is that this provision and everything in the bill have come from stakeholders, including the media.
While the president was right to fault the provision, he was wrong to blame the media and other stakeholders for including that section in the draft bill.
This development underscores the importance of consulting before making substantive changes to the bill.
This is a bill that was drafted following wide and extensive consultations both locally and internationally and it is dangerous and not fair for a group of few civil servants to just sit down and start making amendments to it unilaterally without bouncing the document back to relevant stakeholders.
As it has been demonstrated in the issue of this amendment, such changes have the potential to delay the enactment of the bill should they face rejection not only from cabinet but also in Parliament and among other stakeholders.
Following the rejection of the bill by cabinet in November last year, the bill has been in the hands of the Ministry of Justice and it was yesterday expected to be tabled before the Cabinet Committee on Legal Affairs, from which it a should be forwarded to cabinet once again.
Again, the latest version of the bill has not been shared with stakeholders who are now ignorant of any changes that may have been made to the document.
The Minister of Justice should therefore be ready to fully own and defend the bill once it is presented in cabinet.
He should also be ready to explain any changes in it should Parliament and other stakeholders raise any misgivings about them.
On the issue of retrospective application of the bill once enacted into law, President Mutharika needs to take seriously what Media Council of Malawi chairperson Professor Wiseman Chijere Chirwa mentioned during the meeting on Thursday that the Access to Information provision in Malawi dates back to 1995 when the right of access to information was granted to people in this country in the constitution.
Any mention of restrictive retrospective enforcement should therefore be made with the year 1995 as the basis since that is when the right to access information became constitutional in the country.
Besides the constitutional provision, National Archives legislation also already guarantees the right of access to historical information dating back 20 years from 1995.
It would therefore make no sense for ATI to restrict Access to Information from 1995 going backwards when the National Archives law already guarantees access to all information beyond that.
And as legal counsel Mambulasa once argued, the doctrine of retrospectivity is only invoked if it occasions some injustice or prejudice and one wonders what prejudice information holders would suffer if they were to provide information beyond 1995.
The president may therefore wish to reconsider his arguments on the ATI. #ThumbsUp, however, Mr. President for accepting to meet the media owners.
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