(Feb. 23, 2016) On February 12, 2016, the Malawi Cabinet approved the Access to Information Bill, which seeks to accord access to public information in the custody of various private and public institutions. (MISA Malawi Commends Malawi for Approving the Access to Information Bill, STAR AFRICA.COM (Feb. 18, 2016).) The legislation was sent to the 193-member unicameral National Assembly for debate and a vote through the body’s Legal and Constitutional Affairs Committee. (Owen Khamula, Information Bill Goes to Malawi Parliament Ahead of IMF – Tembenu, NYASA TIMES (Feb. 16, 2016).) The drafting of the legislation follows the publication of a policy document in 2014 aimed “at governing the process of granting access to public information as well [sic] empowering the citizenry to demand their right to access information held by Government and its institutions.” (NATIONAL ACCESS TO INFORMATION POLICY 7 (Jan. 2014) Malawi Communications Regulatory Authority website.) The objectives of the policy included providing a framework for developing legislation on access to information. (Id. at 8.)
National and Regional Obligations
The right of access to information is enshrined in the country’s 1995 Constitution, which states, “[s]ubject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.” (The Constitution of the Republic of Malawi (as amended in 2010), § 37, World Intellectual Property Organization website (scroll down and click on link).)
Malawi is also a signatory to various international instruments guaranteeing the right. For instance, in 1989 Malawi ratified the Banjul Charter, which states: ”[e]very individual shall have the right to receive information.” (African Charter on Human and Peoples’ Rights (June 27, 1981), art. 9, African Commission on Human and Peoples’ Rights (ACHPR) website; Ratification Table, ACHPR website (last visited Feb. 22, 2016). In 2012, Malawi ratified another treaty that includes a provision requiring member states to guarantee free access to information. (African Charter on Democracy, Elections and Governance (July 2003), art. 19, ACHPR website; Accelerating Member State Ratification of the African Charter on Democracy, Governance and Elections, INTERNATIONAL IDEA (June 26, 2014).)
Similarly, in 2007, Malawi ratified an African Union (AU) treaty that provides that “[e]ach State Party shall adopt such legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offences.” (AU Convention on Preventing and Combating Corruption (July 11, 2003), art. 19, AU website; List of Countries Which Have Signed, Ratified/Acceded to the AU Convention on Prevention and Combating Corruption (updated Feb. 2, 2016), AU website.)
Application of the Legislation
A November 2015 version of the proposed legislation, if adopted as the final version, would have broad application. It states that its provisions “shall apply to information in the custody or under the control of any public body, relevant private body or other listed information holders” regardless of whether such information came into existence before the commencement of this Act.” (Access to Information Bill, 2015 (Nov. 11, 2015), § 3, FREEDOMINFO.ORG.) It defines a “public body” as “the Government, a statutory body, or any other body appointed by the government to carry out public functions.” (Id. § 2.) A “private body” is “a person or organization, not being a public body, who or which carries out any business in relation to public interest, or to rights and freedoms of people … .” (Id.) A “relevant private body” is one that is “… wholly or partially owned or controlled or financed directly or indirectly, by public funds … or … carries out a statutory or public function or service, but only to the extent of such statutory or public function or service … .” (Id.)
The draft legislation also specifically lists a number of institutions to which its provisions would apply, including the legislative and judicial institutions of Malawi. (Id. § 3.)
If adopted in its current form, the draft legislation would establish a presumption of access to information except in instances where non-disclosure is specifically permitted. It states that its provisions and the provisions of any other law or policy on the matter “shall be interpreted and applied on the basis of a presumption of disclosure of information … [p]rovided that non-disclosure may be permitted only in circumstances which warrant exemption from disclosure as set out under this Act.” (Id. § 5.)
Disclosure Exemptions
There are two categories of information protected from disclosure in the draft legislation. First is information for which there is an absolute shield from disclosure. The following is the list of the categories of protected information, exempt from the disclosure requirement:
(a) Cabinet records and those of its committees;
(b) court records prior to conclusion of a matter;
(c) information excluded from publication under the Official Secrets Act; and
(d) personal information [including information relating to a person’s race, color, sex, language, ethnicity, address, medical, criminal and employment history etc. … .] (Id. §§ 2 & 3.)
In the second category is information that would otherwise be eligible for disclosure under the legislation, but for which the legislation carves out grounds for exemption in certain circumstances. These are:
- protection of personal information of a third party;
- protection of information that preserves national security or defense;
- protection of information to preserve the life, health, and safety of a person;
- protection of legally privileged information;
- protection of information on on-going academic or professional selection or recruitment processes;
- protection of information on the country’s international relations; and
- protection of commercial and confidential information of the custodian of information for a third party. (Id. §§ 29-35.)
An institution may also refuse to disclose information if the request for disclosure is “manifestly vexatious.” (Id. § 36.)
While it permits all the above exceptions, the draft legislation would discourage their use by imposing substantive and procedural hurdles. An institution before whom an application for access to information is made may cite any of the above-listed exemptions in order to refuse disclosure only if “the harm to the interest protected under the relevant exemption … demonstrably outweighs the public interest in the release of the information to the applicant.” (Id. § 37.) The information in question must be disclosed if doing so “would be justified in the public interest having regard to both benefits and harm that may accrue.” (Id. § 38.) If the institution refuses to disclose the requested information, it bears the burden of proving (on the balance of probabilities) that the information is excepted from disclosure under the legislation and that the harm that would result from its disclosure outweighs the public interest. (Id. § 40.)
Oversight Powers
The draft legislation designates the Human Rights Commission to carry out oversight functions to ensure the proper implementation of its provisions. As a constitutional body, the Commission’s various duties and responsibilities include “the protection and investigation of violations of the rights accorded [under the Constitution] or any other law.” (The Constitution of the Republic of Malawi (as mended in 2010), § 129; About Us, MALAWI HUMAN RIGHTS COMMISSION (last visited Feb. 19, 2016).) Under the legislation, the Commission’s functions would include:
- raising the awareness of all stakeholders regarding the right of access to information;
- making requests for access to information on behalf of certain disadvantaged segments of the Malawi society;
- reviewing decisions of custodians of information in matters involving access requests; and
- making recommendations to the government on the declassification of information excepted from disclosure to make it accessible. (Access to Information Bill, 2015, § 8.)
The Commission would have broad powers, including the power to “enter and inspect premises to which an application for review relates and inspect, make copies of, and take extracts from any material relevant to the review process or proceedings as the case may be.” (Id.)
General Transparency Requirements
All public bodies and relevant private bodies would be required to make accessible to the public certain information in their custody without being prompted to do so. The draft legislation requires these institutions to publish electronically or by any other prescribed manner, within 30 working days of their generation or receipt, various documents, including:
- manuals, policies, procedures, rules or similar instruments;
- information regarding publicly funded programs;
- all contracts, license, permits, authorizations granted, and public-private partnership arrangements involving the institution; and
- reports regarding any survey, study, or test that the institution prepares. (Id. § 15.)
In addition, it would require any public body to publish various information, including “the particulars of its organization, functions and duties … and … information containing interpretation or particulars of legislation or policies administered by the institution.” (Id.)
Offenses and Penalties
The draft legislation would criminalize certain acts. Prevention of disclosure of information (including willfully concealing, destroying, altering, or falsifying requested records) is an offense, punishable on conviction by up to six months in prison and a fine not exceeding MWK250,000 (about US$332). (Id. § 55.) A person who wrongfully refuses to disclose information as a result of “negligence, recklessness or otherwise” commits an offense and is, on conviction, liable to the same penalties. (Id. § 56.) Misuse of disclosed information is also an offense, punishable by up to two years in prison and a fine not exceeding MWK2 million (about US$2,655). (Id. § 57.)
Possible Changes to the Legislation
Key changes may be made to the draft legislation. It was reported that President Peter Mutharika wants to scale back the provision that makes the legislation’s application retroactive and limit its reach to information generated after its enactment. (Id. § 3; MP Menyani Hits at APM for ‘Not Trusting His Ministers’ on Information Bill, NYASA TIMES (Feb. 12, 2016).)
Mutharika also wants changes to a provision in the legislation that prohibits its amendment. The provision states, “[a]ny law enacted after the commencement of this Act which restricts the rights and obligations provided for in this Act, shall have no effect.” (Access to Information Bill, § 6.) Mutharika is said to have challenged the legitimacy of this provision, stating “… we cannot say no future Parliament [sic] can change this law, Parliament [sic] is sovereign.” (MP Menyani Hits at APM for ‘Not Trusting His Ministers’ on Information Bill, supra.) In addition, the Cabinet reportedly wants the oversight powers, which the legislation accords to the Human Rights Commission, to be shifted to the Ministry of Information. (MISA Malawi Commends Malawi for Approving the Access to Information Bill, supra.) It is not clear if the version of the legislation sent to the National Assembly reflects these changes.