Malawi President Resists FOI Law, Seeks to Limit Use

28 January 2016

By Toby McIntosh

Malawi’s President Peter Mutharika is insisting that access to information (ATI) legislation should not cover existing government information, saying the bill should only apply prospectively.

His stance continues to delay passage of a long-promised ATI bill and runs counter to international norms.

“Many followers of the Bill see this as merely a delaying tact by Peter Mutharika,” according to an article in the Maravi Post by Managing Editor Elwin Mandowa. “They suspect he has hidden skeletons that the bill will bring to light,” Mandowa wrote.

Only a very few of the 105 countries that have ATI laws initially limited their application to existing documents, according to experts consulted by FreedomInfo.org.

Despite many pledges to pass an ATI law, the Malawi government has continued to delay action.

An ATI “policy” was approved in January 2014, but it lacks details for implementation and says a law is necessary.

The ATI legislation was drafted by Media Institute of South Africa (MISA) legal expert and has been with the Ministry of Justice since last year. A draft provided to FreedomInfo.org is from the Ministry of Justice (Ref No. C/169/R) and dated Nov 11, 2015.

The draft bill seemed on the verge of being advanced until the president began voicing concerns. He first raised doubts in December, according to a Nyasa Times article.

The government’s commitment to open government is also being questioned by the Open Government Partnership, which Malawi joined in mid-2013.

Malawi has failed to meet the core OGP commitment of producing a national action plan, missing two deadlines and receiving several warnings. Malawi’s membership is now under review and the country could be declared “inactive.” (See related report in FreedomInfo.org.)

Mutharika Raises Objections

Mutharika on Jan. 21 threatened to veto a retroactive ATI bill.

“If it goes to Parliament and gets passed, I will not assent to it if these things are still there. I want to protect all people and institutions,” Mutharika was quoted as saying in the Maravi Post. His remarks about “inconsistencies” were made at a three-house meeting with media owners and managers. Supporters of ATI are the meeting defended the provisions in a draft bill.

The president also objected to clause in the draft that states:

Any law enacted after the commencement of this Act which restricts the rights and obligations provided for in this Act, shall have no effect.

One Malawian source said the clause was added to the MISA draft by Ministry of Justice.

Passage of an ATI bill was an election promise by Mutharika, who has been in office since May 31, 2014. One supporter of the bill in Malawi wrote FreedomInfo.org, “Surprisingly, since assuming power, they have been changing goal posts and give one excuse after the other.”

There is still some hope that the bill will be brought to Parliament in February.

World Bank Supports FOI Law

International development institutions are urging passage of the ATI bill, the president said, without naming names. He was quoted as saying:

I have even noted that our development partners are using it as another conditionality of donor aid although it was not the reason why they stopped aid. Other countries without this Bill are receiving budgetary support. Let me repeat that we are not going to pass the Bill to appease anyone. We will make this Bill into Law because I believe it is good for the country; and because it is good for access to information to be legally protected and regulated.

The Nyasa Times in December said the European Union was threatening to withhold aid unless a bill was passed.

World Bank spokesperson David Theis told FreedomInfo.org:

Our overarching goal with the Malawi Development Policy Operation is to support restoration of macroeconomic and fiscal balances and strengthen public policy delivery.  The Access to Information bill, as a mutually agreed prior policy action for our support, promotes greater transparency and accountability and can help rebuild confidence in the integrity of the public financial management system, particularly after the recent misappropriation of significant amounts of public funds through fraudulent transactions.

Retroactivity Standard

Several countries with ATI laws restricted their retroactive application, but the vast majority has no such limitation.

Ireland’s original Freedom of Information Act 1997 was prospective, and applied to information created after the commencement date of the Act – but did make provision that certain prescribed information created before that day may be accessed “as the Minister considers appropriate” Freedom of Information Act, 1997 Section 6(4). The most recent 2014 Act limits access to information to that created after 1998, or 2008 if held by public bodies not covered by the 1997 legislation, according to a government website.

Tasmania’s 1991 Act Section 8 restricted access to documents more than five years old unless the information related to a requester’s personal affairs.

In Nigeria the Freedom of Information Act 2011 applies to documents prepared before the legislation but did not repeal the law securing the secrecy of past records (Official Secrets Act of 1925). Litigation in under way to clarify this situation with advocates saying the newer law should take precedence.

The reporting on President Mutharika’s position did not include his rationale, but some experts said they have heard retroactivity advocated because of the poor state of country records and fears of being unable to find requested information. Another argument is that officials wrote documents not anticipating their disclosure.

Michael Karanicolas, Senior Legal Officer at the Centre for Law and Democracy, commented:

I’m not particularly sympathetic to the second argument, which I don’t think is consistent with the principles of RTI. There are carefully thought out exceptions to RTI, if the information doesn’t fall under one of them, there’s no excuse for withholding it regardless of when it was prepared. I do have some sympathy for the first argument though – given the challenges many of these countries face in just making sure that subsequently produced information is managed in a way that facilitates its search and disclosure. Nonetheless, the law should apply retroactively, even if Malawi needs to focus their data management on information created subsequently. If, after a good faith efforts, they really cannot locate the information, it may be reasonable to refuse a request (and that, of course, should be subject to appeal).

Several experts noted that the legislation could be crafted to limit the research burden on official. An information officer could be allowed to note if records cannot be found, with an affidavit describing the steps taken to locate the records, or even limiting the amount of time allowed for searching in old records.

A U.S. FOI expert said the argument that agencies will create records differently if they know that the voters can read them “is a really weak argument and is really close to an admission that agencies were the Wild West before FOIA and did whatever they pleased. Which, to me, bolsters the argument that the public should really be able to know what the government did back when they thought it was a secret.”

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