(Feb. 3, 2011) It was reported on January 27, 2011, that President Bingu Wa Mutharika of Malawi signed into law the Penal Code (Amendment) Bill 2009, which, among other things, confers on the Minister of Information unfettered power to ban local publications deemed “contrary to public interest” (Gregory Gondwe, Malawi: Mutharika Assents to Repressive Media Law, BIZCOMMUNITY.COM (Jan. 20, 2011), http://tinyurl.com/4c4cph6). The bill was passed into law by the 193-member unicameral parliament on November 19, 2010 (Malawi Minister Can Ban Newspaper, Parliament Pass Law, NYASA TIMES (Nov. 19, 2010), http://tinyurl.com/4htf5zo).
The amendment allows the Malawi government to arbitrarily stifle local publications without any judicial oversight. It specifically states:
If the [Information] Minister has reasonable grounds to believe that the publication or importation of any publication would be contrary to the public interest, he may, by order published in the Gazette, prohibit the publication or importation of such publication (Penal Code (Amendment) Bill No. 17 of 2009, THE MALAWI GAZETTE SUPPLEMENT (July 3, 2009)).
By not providing a minimum threshold for what constitutes “contrary to public interest” and “reasonable grounds,” the amendment gives the Information Minister absolute discretion to ban any local publication at whim, including newspapers, cinematic films and videotapes, magazines, textile fabrics bearing certain designs, CDs, and books (Penal Code, §45, II LAWS OF MALAWI, Cap. 7:01 (rev. ed. 2003)).
This law, in addition to giving the government the power to ban local publications, also changes the standards for banning foreign publications, a power that the government has had for a long time and used often in the past. Under the Malawi Penal Code, the government had absolute discretion to ban the importation of any foreign publication that, in “the opinion of the [Information] Minister,” was deemed “contrary to public interest” (Penal Code, §46, II LAWS OF MALAWI, Cap. 7:01 (rev. ed. 2003)). The Malawi government has in the past used this law to ban the importation of over 200 cinematic films and video tapes, three magazines, textile fabrics made by certain companies, 48 gramophone records, and over a thousand books and other publications (id., Prohibited Publications Order). Under the new law, the Information Minister may ban a foreign publication from being imported if he has a “reasonable ground to believe” that the publication is contrary to the public interest. This is a higher standard than the “Minister's opinion” test, which was subjective in nature. However, the fact that it is not defined may leave it open to abuse.