Some Simple Lesson on the Need for Knowledge of Intellectual Property in Malawi

A few days ago I asked my wife to go to town to buy the home some popcorn.

“I didn’t buy it in the market proper,” she said upon her return an hour later, “I’ve noted that corn from there does not burst 100%”

I seized the opportunity and began a talk on a subject I love so much—Intellectual Property.

“If popcorn from the market would disintegrate as well as that from crops from seed stores, Monsanto and others would no longer be in business as we speak,” I told her.

She looked unconvinced as though asking me to source her some clearer reasons.

Seed manufacturers spend time and investment in developing the improved seed for farmers to increase their yields. This can be through producing varieties that are disease-resistant, drought-resistant or varieties that yield more per unit area. This investment which usually takes years through trials, testing and registration, requires that the individual or company behind it be rewarded or else there would be no need to keep investing. In most cases, such seeds have a ‘code’ which allows it to be used either only once or a number of times, after which, it switches off and produces less or nothing at all.

Most farmers are not aware that the best seed is that from the stores stocking the genuine brand of that product. This gap in knowledge leads to low yield, for example, making farmer harvest only 25% where he or she would have harvested 90%. The battle against hunger will not be won unless there is a knowledge revolution that should trickle down even to the local farmer.

Intellectual Property allows a person to use his or her brain to create, invent or produce a product to advance human wellbeing in a sustainable way. For the investment (time, human, material and financial resources) incurred, such a person or company has to be rewarded. At the same time, what he or she has created has to benefit the people through an arrangement that allows the people to pay for that benefit.

Knowledge of IP is crucial in all other areas of life apart from farming. The following question should trigger something in you on this: What do people buy when they pay for some object? Or to be specific, what do people buy when they pay for a pair of ADIDAS shoes or NIKE trainers? Do they buy that leather or that product or something else?

Well, if they buy the product, why do some companies make a ‘similar’ product and give it a name that would make you think is was ADIDAS or NIKE when in fact it is a counterfeit? Have you ever seen a pair of shoes with what looks like the three lines of ADIDAS or the NIKE tick (Swoosh) carrying slightly misspelt names like ADEDAS (for ADIDAS) or NIEK (for NIKE)? Why do these companies do that if what people buy is just the shoes and not something in those shoes? Why do they want to be associated with such brands?

When we buy a product, we do not just buy that physical product; we buy the value of the investment in that product. That value is what is referred to as Intellectual Property.

The three-stripes logo of ADIDAS is worth over $17 billion today. That logo is a symbol of achievement, a brand made over the years, and so that symbol is attached to such huge money. So when you buy their product, all you’re doing is sharing in that $17-billion achievement. And for legally sharing in that achievement or class, you pay that much money, money you would not pay if you bought a similar pair of shoes carrying uncelebrated brand.

Whosoever is associated with ADIDAS pays it. In turn, ADIDAS pays those it associates with to increase the power of its brand or value. If any company would use their logo without their consent, ADIDAS would sue him for infringement of ADIDAS IP rights.

Apple is worth over $145 billion. If you use their gadget, you earn more respect because you’re associating yourself with that class. For that, you dig deeper in your pocket. Similarly, if you infringe on their Intellectual Property rights which is worth this much, you must prepare to dish out a fortune in damages.

It is the same with NIKE with its tick or Swoosh which is worth over $28 billion.

We have Hungry Lion and KIPS in Malawi today. These are expensive brands and when one wants to use them, one negotiates for a contract and uses everything (recipes, colour, setting et cetera as KIPS or Hungry Lion elsewhere) and pays the owner of the brand. If you violate this by using KIPS on your shop without this enfranchise arrangement you violate trademark law of Intellectual Property.

A Malawian can have a McDonalds I’m-lovin’-it food facility using everything McDonalds’ and people will be patronizing it as though they are patronizing the real McDonalds of the US. This can follow a formal arrangement in which such a business can negotiate for a contract to use this IP asset.

When people understand how Intellectual Property works, they can benefit by arrangements it offers and turn themselves into millionaires. In this way, Intellectual Property protects the invisible asset or property (value in the product) and affords others an opportunity to use that value in exchange for money.

The world is looking for cleaner technology. Suppose a Malawian today devised a new device which if fitted somewhere in motor vehicle engine could reduce carbon emission by 95%, what change in fortune can such a person experience for such an invention!

Intellectual Property challenges people to use the unlimited power of the brain to solve human problems. It offers the platform for people to improve themselves through thinking and doing. At the same time, it gives those inventors a legal opportunity to benefit by their inventions or any other form of IP.

Another area where debate on IP tends to be heated is on drugs and prices.

First, this must be made clear: it takes years and years to develop a drug. And of the many drugs that a pharmaceutical company can research on, only a handful are successful, and usually this is after many years of investment. Apart from the fact that to produce a drug requires very expensive laboratories and storage facilities, a single drug also goes through stages, and if it fails at one stage no matter how much the company has spent on it, that drug can never enter the market lest it should be a danger to life and health.

For this reason, a person or company which invests in such a drug ought to recoup the investment it lost in the years of developing that drug. Intellectual Property Law affords such companies an opportunity to recover the investment through a form of protection known as patent (in this case, patent for the process or method for making that drug).

A patent thus is like an agreement in form of certificate that gives the owner the monopoly to use the innovation or process for a certain period of time in which he or she will get back what he or she invested in that new useful product or invention. When that period expires, everyone can use it as he or she wishes so long as it is within the limits accepted by law and health.

There are people who consider this view dangerous especially among African countries where the majority of the people are poor. Obviously, African countries are in need of cheap drugs, but we must understand this one fact, that drugs which bring more money to pharmaceutical companies aren’t those for ailments that top Africa’s list of diseases. The West can as well forget about Africa and still survive, and Africa can end up the sole loser. Put simply, there is no way we could completely wish that pharmaceutical companies just give away drugs for free simply because they invested in an area about life and death. Saying so would be like saying all local coffin-making businesses should give their coffins to those in mourning free since it is immoral to charge a house of mourning.

So what arrangements are there for poor countries to afford these important drugs?

First, countries can use the parallel market phenomenon, that is, an arrangement through which a country can buy from another at a cheaper price rather than import directly from the source. For example, if to buy a drug from Germany will cost K5 billion yet Germany has an arrangement with Norway whereby Norway buys the same drug at K1.5 billion, Malawi can use this arrangement to buy from Norway (if Malawi has an arrangement in place with Norway), and incur a total cost of K3 billion instead of K5 billion that she would if she were buying direct from Germany. This is just an example.

Another arrangement is that a country or region can negotiate for a licence and make the drug in their region, which could be cheaper. The problem with most countries, however, is that they have very weak Intellectual Property legislation and poor drug manufacture facilities besides weak drug enforcement standards.

Drugs produced in this way are known as generics, i.e. they contain the same formula as the actual drug sold say in Europe under a brand (expensive name) by are sold under a different name other than the brand name used to sell the same drug elsewhere. Using generic version means a drug is sold cheaper.

To help you understand the issue of generic medicines, I should use a familiar concept in copyright.

Suppose there is a mathematics book that has been prescribed for the syllabus in Malawi. The book was written by a Briton who lives in the United Kingdom. It is published there and Malawi imports it for schools here. Now, let’s say in the UK it costs K20,000 in Pounds equivalent, and in Malawi, the same book (when brought from the UK) costs K70,000. An arrangement can be made so that the author or publisher (in the UK) can authorize (on some contract) a Malawian publisher to publish and print the book right here in Malawi. It will be the same book in terms of content (but now carrying a Malawian brand). Since it is a brand that is not widely known, the cost for this book may now fall to say K5,000. Perhaps you have seen some books labelled ‘Low-priced Edition’ or ‘Africa Edition’ or ‘Not to be sold in Europe’. Such books are made specifically for particular markets to meet a particular need.

Thus, AIDS drugs can be manufactured in Africa as generics, i.e. as low-priced versions of the same drug that is expensive in Europe because it is sold under a big brand there. This is why AIDS drugs have been becoming cheaper as years go by.

Generics can also mean producing the drug after its protection period (patent life) has expired. In other words, if the patent (certificate for the owner to use it alone or licence it to others) has expired, in say 20 or in some cases 25 years, any country can make that drug for its people without infringing any patent law or rights. Unfortunately, most countries lack proper facilities and have very weak Intellectual Property laws domestically. Besides, many pharmaceutical companies play some tricks to prolong the life of their patents on particular drugs, say by using what is described as patent trolls, i.e. when they know that the certificate for that drug is about to expire, they can make another drug carrying much of the formula from the drug whose certificate was about to expire. In this case, an old drug can appear on the market as a new drug and continue the protection when it was about to expire for all to use.

Pharmaceutical companies also use the issue of safety and standards to block other companies to manufacture generic versions of their products.

Intellectual Property is the engine of the modern economy, and the modern economy is knowledge-driven. Any country which chooses to go otherwise is deemed to fail.

One can ask how a country the stature of Malawi can benefit from knowledge of Intellectual Property.

On Copyright, Malawi can strengthen the protection of Malawian works as well as offering protection for those from outside so that they too will be duty-bound to protect our works there. Through a proper Copyright regime, musicians, artists, etc can get organized and go by rules and benefit from many arrangements as a result of strengthened protection mechanisms against piracy.

In this way, the Copyright industry can flourish and employ people and become a formidable source of income. Already, the industry is massive though so chaotic that the benefits hardly trickle to the creators.

When users understand that it takes years and huge investment to produce a powerful album yet it can only take 30 seconds to reproduce them into multiple copies, people begin to respect creativity. It would take people understanding what it takes to write a book to appreciate you cannot just photocopy it and begin to sell it wholesale as though it was your property.

If a minibus operator was made to understand that the hell he went through for his business to work could be the same Lucius Banda went through to create the music he is using on his minibus for his passengers to enjoy. In this way, knowledge of Intellectual Property can open the people’s eyes for them to respect creativity as a business. Law enforcers can also see the need to defend such investors.

Where people have no knowledge of IP, some sectors of creators lose out. For example, apart from the musicians themselves, producers themselves are also supposed to benefit from IP arrangements. Many producers and others who play a part in adding value to creativity or invention are not aware of this.

The Copyright industry can also benefit from formal learning and their works, e.g. music, can carry international taste, and that breakthrough can mean a lot to the Malawi economy.

Currently, we have a number of Malawian fashion designers. I’m not sure how they protect their ideas of designs as IP assets? I’m sure most of them do not even know they can make a pattern and sell it, or protect it so whosoever uses it, pays them something.

Opportunities for training and sponsorship also increase once a country sets is copyright house in order.

How about Agriculture?

Among many, farmers can use what is known as geographical indications in which a produce is branded especially for health aspects as a result of where it is grown or where it comes from.

When I was young Malawi used to have Mulanje Fruits. Suppose we rejuvenate ourselves in that front, and the West learn of the pristine streams of Mulanje, of the health soils of the site, what can become of such fruits on the market? Today, the world over, people look for food that is from fresh, virgin soils free from contamination. This thing alone can force the world to cry for our products. It is as simple as that. This is what Ethiopia has done with its coffee. We can do likewise with the Mzuzu Coffee by improving the localities where it is grown and by making adverts for the same. Of course, we could start it ourselves, telling all the visitors that one can never claim to have visited Malawi if one never tasted the Mzuzu Coffee.

Currently, pharmaceutical companies are looking for trees with medicinal properties. If Malawi can learn to take care of her natural forests, Malawi can benefit from an arrangement in which the benefits from a drug made from such a forest is shared to the people around that forest or area. If the local people would be enlightened on what caring trees can produce them after a few years of dedication, their approach towards caring forests can change.

How about in football?

Do you know Messi as a person has a lot of intellectual property protection around him? When he appears on TV he is paid for the value he holds. In short, he is a brand on his own. Other companies which rely on IP have taken advantage of this and pay him to sell their merchandise. The same is the case with Ronaldo etc.

Malawi can build its own celebrities in various areas and attach value to them and make money out of them. David Beckham is an example of how Intellectual Property can brand a person and make him or her a money spinner.

Malawi can brand its sports, produce rewards and awards and produce a crop of sportsmen and women to represent the country and bring us money. We must wake up.

A few weeks ago I heard of some footballers crying foul over their appearance on billboard without being honoured to their satisfaction. If they knew Intellectual Property Law on this, they should have followed procedures and benefit by that. Unfortunately, where people go into arrangements which carry with them intellectual property implications without understanding the form of arrangement used, the result is usually chaos.

I also heard that the national broadcaster, the Malawi Broadcasting Corporation, was being accused of beaming programmes without entering into agreements with some rightful owners. If there was someone conversant with IP there, he or she should have guided them on implications and the need to find out which intellectual property rights were protected, and who should have been the right person or board to grant a licence for those rights, et cetera.

Our cities could have landmark items of art on the streets. Recreational parks would stock items of art and animal life and beauty so those who enter such places pay. Things earn respect and value from branding. We can bring life into our things and create numerous ways of making money.

How about on MSMES or simply SMEs?

Micro small and medium enterprises or small-scale to medium enterprises can benefit from IP by using knowledge to improve input and to add value to their products. People talk of value addition but I wonder whether they really understand what they mean by that because value addition should not stop at creating value; it should discuss what happens after one has created value. Put simply, how is one rewarded for that value and how does one protect the rights arising from this creation.

Value addition can happen when IP encourages farmers to use their brains to make a handful of produce earn them a granary of money. A farmer, for example, can devise a best means of making a corn delicacy in the village so 1 kg quantity of maize (which costs K500) earns him or her K3,000 after processing right there in the village. In this way, the farmer can turn a millionaire instantly. However, there is a need to train such farmers to think, innovate and after that, seek legal channels of protection of such expressed ideas. If such ideas are proven workable, there should be a mechanism to help such a farmer make huge investments through bank loans using ideas (intangible assets) as collateral or to sell the idea to a well-established company for millions.

Intellectual Property can also challenge workers to produce the best for their workers in terms of ideas and inventions so that one whose idea brings value to the company is celebrated. I know one former secondary school teacher of chemistry who mixed chemicals to produce a type of insect pesticide also sold in Malawi. Out of the ideas from university he has products Malawi import from Zimbabwe and the guy making money.

Intellectual Property is thus necessary both for promoting the spirit of innovation and for protection of the innovation so that the person who spent time, energy and resources on it reaps the benefits while benefitting the society with his or her invention, creativity or business idea.

Malawi needs to work on Intellectual Property legislation (on Copyright, Trademark, Patent, Industrial Design, Merchandise, Consumer Protection, Geographical Indications, etc) to make it robust, forward-looking and up-to-date. Currently, the country is talking more about trade and investment, we need to talk more about Intellectual Property otherwise how will people come to invest where they know their IP rights will not be respected? Moreover, some companies survive on what is known as trade secret (confidential information) which is vital for them to operate; how will they trust Malawi to handle facilities housing such information when they know Malawi has little knowledge of IP and implications when such rules are broken?

Have you ever wondered why some machines are installed by the owner, and when they got broken down we have to invite that owner all the way from England to do the repairs? What do you think is the reason? That we’re not advanced in engineering? If so, why not train local engineers and let them do the work for us?

The reason hinges on confidential information or trade secret. What our local engineers are taught when these companies are installing these machines is simply surface information; the deep secret of the machine is left with the owner.

We must work on our IP laws so we can make the inner circle of technology.

Malawi also needs more people educated in IP Law. And please, do not confuse IP Law with Commercial Law. You can learn some Commercial Law courses in IP (e.g. Law of World Trade Organisation, Competition Law, Commercial Contracts, Internet Law, Information Security or Confidential Information, etc), but IP is generally about Patent, Copyright, Trademark, Industrial Design, Geographical Indications, Indigenous Knowledge, Confidential Information, and New Varieties of Plants.

If you want to learn more about IP, you can visit WIPO or ARIPO websites. There are lots of courses on the former’s website, some free. When you do such courses and show interest, WIPO is always eager to support. I got my scholarship the same way.

The Coca Cola isn’t rich because it is a Western company; it is rich because it has an asset you cannot see with your eyes which it protects through a form of Intellectual Property. No one knows the formula for making Coca Cola, that formula is their property. They have been using it over the years to make money and support other IP assets.

The West no longer relies on huge farms; they rely on knowledge (a form of Intellectual Property) to make money. Today, one can attend a UK University while in Malawi. They are selling us their knowledge (protected knowledge or Intellectual Property) using technology (another form of IP) and we pay for that without knowing we are paying for the copyright or IP therein.

Malawi and Zambia, like the rest of the countries in the world, were hard hit by the failure of the US Dollar exchange regime in the mid-1970s and the rise in oil prices in the same period and late 1970s. To address the problem, Malawi and Zambia resorted to borrowing, but Japan resorted to Intellectual Property (i.e. more innovation, e.g. in energy). Today, Japan sponsors IP courses with WIPO for us to learn yet we still cannot learn and take our destiny in our own hands.

China has become what it is today because it exploited intellectual property to improve upon the lives of its people. Today, they are so advanced, we have to wait upon them to feed us and give us ‘aid’.

Mind you we cannot engage in a thorough discussion on issues of trade, drugs, technology, investment, et cetera, without understanding Intellectual Property. So, as we implement the Public Sector Reform programme for this country (and Malawi is Africa’s most blessed land), let us add some Intellectual Property in the cauldron and see where this will take us.

An Interview that Never Appeared

Firstly, I want your brief background

I am former secondary school teacher of English and History. However, I also worked for some years as News Reader, Editor and Producer for the Malawi Broadcasting Corporation where I was also involved in Writers Corner, a programme that analyses literature mostly by Malawian writers.

Currently, I work for University of Malawi, Chancellor College Publications, as Publishing Editor/Coordinator. However, there I also teach students Desktop Publishing on part-time basis as a Demonstrator.

Where were you born? When were you born? Where do you come from?

I was born on 14th May, 1970, at Pirimiti Mission Hospital in the Jali area of Zomba. However, my mother came from South Africa, but my father was Yao from Namikango, in the same Jali area of Zomba. In Malawi, my mother first settled at Nchoka Village in the Area of Senior Chief Ndindi in Salima, and that’s what I call my mother’s home here in Malawi.

Perhaps I should put this on record: as a result of my being born on 14th May, my parents gave me an almost impossible yardstick in the person of Dr Hastings Kamuzu Banda, the country’s first Head of State, that man of letters. They kept telling me to work hard and be like Kamuzu who was celebrating his birthday on 14th May.

Married or single?

I’m married and my wife comes from Ekwendeni, Mzimba. Our family has five children, three boys and two girls. My wife is technically a nurse though currently she is in final year at College of Medicine, doing MBBS (now a holder of MBBS).

Where did you do your education? Primary, secondary and tertiary?

I did primary school at Zomba CCAP Primary School in Zomba, from 1977 to 1987 (repeating standard 6, where I took home position 98 in a packed class of 98 learners, and of course, standard 8). I was selected to Masongola Secondary School also in Zomba for secondary education. From there I was selected to Chancellor College of the University of Malawi for a degree programme in education (B Ed).

I have a Master in Intellectual Property from Africa University (Zimbabwe) in conjunction with African Regional Intellectual Property Organisation and the UN-agency World Intellectual Property Organisation. I have just clocked a year in a two-year diploma course at the School of Law, Chancellor College (now a holder of Diploma in Law). Perhaps, I should also mention that I have attended other courses besides, for example, Public Administration (a holder of Master of Public Administration and Management, now a Ph D student in the same programme) and Journalism.

How did you find yourself in the world of writing? Who inspired you?

I was inspired to write by Professor Steve Chimombo. For your information, I grew up in a village which bordered Chancellor College. We used to call it Biyandiye (a corruption of B and E.A.), a village dissolved in September 1982 because Dr Banda had wanted to turn it into a cultural village (and of course, because it "harboured thieves who were preying on university students"). Because of this proximity, I knew Steve Chimombo from my early years there. Although I had this desire to write like Steve, it was Professor Al Mtenje who set it a-motion when, one day in class, he said, “When you’re done with College and you don’t write out there, don’t claim you were my students.” In other words, he was saying you can’t claim to be educated if you don’t have anything to show for your school in terms of creativity (humanities) or of patent if you’re in sciences.

How many books have you written so far? Where do you see yourself in the world of writing in the next five years?

I have written over ten works of English as a subject, and all are for the secondary school level. I have edited one tertiary work, and I also have a published compilation of my short stories.

Currently, I have a finished manuscript, in form of novel and it bears the title ‘Unfinished Business’. However, I also have a finished autobiography though I intend to publish it when I hit fifty or thereabout.

You have been a judge in so many competitions in the country, do you think we are making progress as a country in the world of writing?

I have heard people say we are not making progress in the writing frontier as a country. I beg to differ. What is our yardstick on that front?

There are very good writers in Malawi. I know some fine writers such as Steve Chimombo, DD Phiri, James Ng’ombe, Max Iphani, Zondiwe Mbano, Wisdom Nkhoma, Dale Mthatiwa, Ben Malunga, Hoffman Aipira, Alfred Msadala, Albert Harawa, Temwani Mgunda, Khalipwina Mpina, Lawrence Kadzitche, Nancy Phiri, Mike Mvona, who, if given a surefire publishing outlet and under a powerful editorship, can produce winning works. I know Malawians who are publishing with Publishers from as far as the US, and to say we’re not making progress shows me we are deprived of some information about brilliant men and women who are making themselves a name out there.

One thing people don’t understand is that all powerful writers were made by powerful editors. I often say people such as Achebe were lucky in that their works were handled by master editors. In Malawi, you handle everything alone because professional editors charge exorbitantly. When judging these writers, judge them with that understanding. Moreover, when defining good works, whose taste do you use?

What would you be your advice to the budding writers?

I hate this term ‘budding writer’. It segregates. It shows others masters, others servants. One can start and make a breakthrough straight away. That’s what happened with Chinua Achebe and Ngugi wa Thiong’o. Anyway, my advice to the ‘budding writer’ is: writing never lies. No matter how long it takes, if you are persistent, you are bound to dine with the great.

What do you to do when free?

When free I like to think or watch brutal military films; from these I find the other side of man.

And your favourite meal?

Nsima crushed in fresh milk, eating using dessert spoon. I was introduced this by my mother when I was young and it’s the best meal you can place on my dinner or lunch table.

General comment on life?

One can be the best writer but when one is weak on the moral front, chances are slim for him or her to harvest his or her talent especially in the advent of HIV and AIDS. The danger with fame or popularity is that you make friends with people of different motives. But I think the best defense is for writers to also be GOD-fearing. As a person, yes, one might fail and even fall terribly, but one must never forget the name of GOD.

Any other comments you can make as regards writing?

The world we live in has suddenly turned a credential society where certificates matter so much. But for me, if you do not have a written work to show for your school, I will have doubts to endorse you in my category of educated people. The reason is: the certificate gives you the credential status, but it is the writing that proffers authority.

Lastly, although writing can go with a little school, it works better with a lot of school, and by school, I mean reading as though if you didn’t you’d be killed.

Access to Public Information Bill: What Next after a Dozen Years of Lobbying in Vain?

As far back as 2003 in the reign of Bakili Muluzi’s United Democratic Front, the Media Institute of Southern Africa (Malawi Chapter) with support from such organisations as Open Society Initiative of Southern Africa, drafted what is described as the Access to Public Information Bill. In 2007, and this was during the first stint of Bingu wa Mutharika’s Democratic Progressive Party, the Government said it would not be wise to go on with the Bill in absence of a document that should work as guideline on access to public information. Thus, began the work of drafting the ATI policy.

2012 came Joyce Banda, and with her, some flicker of hope on the Bill. It was never to be.

2014 saw the return of the old boy, DPP, and with it promises at the highest level.

Over a year later as the people were waiting with bated breath, came the news, no, the truth—the November-December meeting of Parliament will not touch the ATI Bill.

Back to square one. No, not to square one, for, from the same Government came forth the news—the Bill will be tabled.

Put the pieces right here and get the wording correct—tabled. ‘Tabling’ is just a small process in the law-making process which ends with the President assenting (and the law published in the Gazette) for it to become law.

I hope that the Members shall go with it all the way and come December, the language will no longer be The ATI Bill but The (2015) ATI Act.

Whether this will be the case or not, this discussion is why it has taken us over a dozen years of one step forward and two steps backwards on a seemingly simple issue. Should one say none of the previous governments knew the pivotal role access to public information plays in a democracy?

Access to Public Information legislation is built from a constitutional belief that the power to govern is given those in power by the people. Put simply, if the ultimate source of authority is the people, then those entrusted with this power must govern in the interest of those people. But the people are not there in public offices when decisions are being made on their behalf, and so the only sure way they can follow these things is by having access to information arising from the same.

In this way, the concept of ATI is related to that of Open Government which calls for governments to, on their own, make available to the public, datasets, information and knowledge for the people to use to improve their social-cultural and economic wellbeing. An example of Open Government in practice is what do the judiciary—the judiciary make open proceedings in courts (unless otherwise) or publish their judgements for all to see. One can also talk of the issue of National ID Registration as part of Open Government, where we should easily identify ourselves to enhance security and openness.

The concept of ATI, it is said, makes the people feel part of running their own affairs. It is also believed that when public information is made open, those entrusted with power make rational decisions to avoid repercussions. In short, ATI leads to openness or transparency, accountability, citizen participation and collective ownership of public decisions, and to timely government responsiveness.

Malawi is undergoing the most revolutionary of public sector restructuring ever. At page 48, ‘The Malawi Public Service Reform Final Report’, a year-old PSR blueprint shows ATI Bill an important document for successful reform implementation. There, the document places ATI Bill second on the priority list (of the laws to be amended and enacted) just after the Public Service Act itself. I am sure this must have risen from a genuine understanding that true PS reform hinges on smooth access to public information.

You may also wish to note besides that one report by Mzi Memeza on weaknesses of ATI in the SADC Region (2005), shows some of the people now working for this government, a case in point Collins Magalasi and Mavuto Bamusi, as once being part of the group in the forefront in lobbying for the passing into law of this Bill.

However, I stand to be corrected, I never observed anywhere in the Malawi Growth and Development Strategy II where ‘access to public information’ is mentioned. Of course, ‘access to information’ appears on a number of pages but not ‘access to public information’. I do not think this an oversight; I feel it was deliberate.

That aside, now, why on earth, with all these promises of a fine type of democracy, have successive governments evaded passing this Bill?

I have a number of ‘theories’ for explanation.

First, the picture the media have presented on the purpose of ATI has been off-centre and at best, self-defeating. I once read an article which boasted something to the effect that once this Bill becomes law, one would even access another’s hospital documents. If this is not an attempt at stripping the Constitution of its provision on personal liberties and privacy, then I don’t know what it is.

On the same question of presentation, the media and the CSOs have tended to portray themselves as front-line beneficiaries of ATI. One might argue that such a picture has arisen from the fact that these bodies have been in the forefront lobbying on behalf of these people. True, but many a time, the picture presented has suggested these bodies thinking themselves the sole beneficiaries, as though once ATI passes into law all hell will break loose and every piece of information will be at every street corner, a free-for-all scenario of sorts. In all fairness, although ATI benefits individual persons, it is first, for the public; it is first, for public good, and we must need it for public good rather than individual selfish purposes.

The second problem, and this has tended to scare rather than invite debate, has been the emphasis of law as an instrument of punishment. Law serves many purposes, but in Public Administration, Law is first, a tool for improving the public sector. When the people mistake law for punishment, though sometimes it is, people begin to discard discipline for crookedness; they find ways to beat the system and use every loophole for their selfish end. People should not steal because they will be punished when caught; people should not steal because stealing is abhorrence.

Many a time, when a piece of legislation is presented as whip, the result is revolt rather than cooperation.

The language of lobbyists, equating law to syambok, has tended to scare rather to invite debate and support. In this way, the facility of ATI has rarely been presented as an important instrument of Open Government for social-cultural and economic development, the way most Public Administrators perceive it.

Then there is the question of misplacement of ATI on the list of items to be given greatest national attention. The placing of an issue at the top on the priority list of national subjects so it is given the greatest attention and discussion is known as agenda setting. The manner in which the CSOs including the media have placed this issue on this priority list has tended to divert attention from the real issue.

Public Policy scholars emphasise that agenda setting should avoid mixing of issues unless they are so related as to offer direct complementarity. In Malawi, the CSOs have tended to mix agendas, lobbying for the passing of the Bill into law while at the same calling for other issues say homosexuality recognition. One problem with mixing policy issues is that a population gets divided on which item on the agenda list to support.

On 4th July, 2013, Malawi submitted a letter of intent to join Open Government Partnership. Although the concept of Open Government differs somehow with the concept of ATI, the two have so much in common. For the reason, agenda setting for ATI would have worked well with that for Open Government Initiative.

Another problem, I think, has been the fact that we have tended to portray the passing of ATI Bill into law as the end in itself. It has been as if to say once the Bill is passed, our objective is met yet it is common knowledge that numerous pieces of legislation have been passed in this country yet few have proved effective or efficient in the long-run. This reminds me of what Kanyongolo and others observed in 2005 on Malawi being among one of the countries with one of the highest concentration of policy documents per unit area in the region.

People should understand that passing of the Bill is not the end in itself. There is a need for foresight on how the legislation will work on the ground, what other instruments the country will need to facilitate smooth access to public information, and all other equally important tools to make it work. It is also important to learn from others how they are doing it, or on some of the barriers they had to overcome for a similar Bill to pass and work.

Then there is the question of how much the citizenry have been prepared or have prepared themselves to take advantage of ATI.

One purpose of ATI and Open Government is to enhance citizen social participation and engagement. In this, people make their ideas known to policy makers and other decision makers through a responsible mode of engagement. Unfortunately, the majority now believe that contributing your idea means saying the worst of invective you can about others. We need to ready ourselves to be honest and distinguished participants in our affairs. Engagement requires that we should sober up and respect the spirit of democracy and debate, to avoid mistaking people for policies.

This is why the media have a job to teach the people the difference between literacy and illiteracy, on one hand, and alliteracy, on the other. The first two are obvious, but the last means having the education alright but being unable to use it to analyse, reason and contribute to positive change in the society. Some contributions smack of alliteracy, thinking that one is contributing when one is not.

In the same vein, I wonder whether, in a setting with 67% illiteracy rate, we have told the villager in clearer terms how ATI will eventually benefit him so he or she can become part of the conscious stakeholder and lobbyist. This problem has been exacerbated by the fact that issues of ATI are often presented by the educated to the educated in a highly formalized academic setting.

Malawi as a country has one problem—we never honestly deal with our past though pretty aware that a past unresolved will always catch up with one.

I am from the Eastern Region of the country where from 1965 occurred a brief civil war, and I cannot describe the magnitude of frustration in the region for failure by successive governments to address the issue of Chipembere Uprising there.

The reason for the frustration is that, for whatever reason, when change was happening in 1994, very few reached out to what had happened soon after Independence. The people were busy burying the Old (1966) Constitution without addressing how and why it was born in the first place. Today, when you hear the remaining old Independence fighters speak, you can pick up this frustration all through. Perhaps they feel cheated at the speed with which we rolled up into the dustbin of history their package of contribution to that Fight.

Addressing the past does not necessarily mean punishing those involved. The purpose is healing. Sometimes, mere apologies, some recognition or honours can be enough to make a people move forward. I strongly believe that one reason MCP has failed to make a breakthrough in the Eastern Region is that it has lacked tact to mend relations through tough decisions and honest engagement with especially the few liberals there.

One reason South Africa succeeded in pulling together after the fall of apartheid is that there were other things they learnt to forgo as a nation. Of course, they did this after discussing them.

It is a great principle of law that a new piece of legislation should not go back in history and punish people for wrongs done before that law was enacted. However, it is a fact that some new information would be found together with old information that would raise some questions. For example, what would happen when you suddenly learn from some released information that some decision a few years ago had been unlawfully made and had impacted on you negatively? Shall there be some amnesty? As a nation we have not negotiated on such serious things, but negotiate we must. The West cannot understand these things; we do.

If I were asked for my opinion, I would say: “Malawi needs to start afresh, without finger-pointing, so let there be amnesty, period. This is good for all the parties from MCP to DPP through UDF and PP.” This is hard to take but it is the only way that will prevent us from burning the archives to destroy precious information.

Here I am not talking about sugar-coated short-time tribunals that served only those connected; I’m talking about a robust mechanism that reaches far and wide, a machine to soothe the hearts and mend fences for a true burying of the hatchet.

I know some will say but then how can the law take its course in that context?

My answer is: Does the law always take its course? How do you justify someone stealing money enough to run a central hospital for five years being given 2 years’ imprisonment (and mind you there is no longer corporal punishment)? Does the law always take its course in this way? We are made to believe that it does, but it is not always true. I share with those who say the law is like a spider-web; it does not catch every fly.

I also found it a weakness that when lobbying for the ATI, we weren’t making use of other pieces of legislation that support ATI or which seem to work against it. ATI legislation entails making public information using open access mechanisms. What would happen if there are no pieces of legislation to control the manipulation of such information or there are no efforts to increase access to ICT? In the same vein, does the country have a law that guides how people can use information that is not theirs yet they have access to it, say on the Internet? How would ATI work in relation to issues security in nature or in relation to information protected by Intellectual Property Law, i.e. confidential information, copyright, patent, et cetera?

This is why I personally feel the E-Bill, minus controversial clauses therein would serve some purpose.

Another tricky issue for me has been the definition of public information itself.

The modern form of running the public sector requires that there should be a small government but a big public and private sector. In other words, that the role of government should be limited to merely facilitating where most business in public goods and service delivery is in the hands of the private sector. For the reason, there has been emphasis on such market arrangements as privatization through its many forms, for example, the public private partnership arrangement. In this context, most public information will eventually be not in the hands of the government per se. I never heard these things discussed root and branch in the course of lobbying for ATI.

And then there is the question of NGOs and CSOs and transparency and accountability. The CSOs have come to form the hub of a modern form of government known as Networked Government. And here comes the question: how shall the population be afforded information about them in a form of governance that recognize CSOs as part of government? Is public information only from public institutions? Do such institutions which appear private yet are engaged in public goods and service delivery constitute the public?

The importance of ATI in strengthening legitimacy means that the country should strive to have legislation on this. The current government has an opportunity to make history and become the government that actually put in place the legislation that has been walking up and down the Capitol Hill corridors for almost a dozen years with no success whatsoever.

In the course, we have learnt so many things. So what has been the most important lesson on the issue of ATI Bill over the years?

I think it has been that the modern language in policy implementation rests on the fulcrum of negotiation and understanding of context to deal with the past and the future, rather than on confrontation. I think is has been that we should change the approach and adopt policy negotiation (a policy formulation concept) which we can innovate into the policy implementation stage. In other words, whenever we are negotiating, let the government and us reach that common ground where none of us will come out empty-handed. We can start with a little bargain, and move steps until we get the best for the good of our country, a nation for which, I’ve never even once lost faith.

It is high time we each contributed to building Malawi, not by becoming politicians or associating ourselves with them, but by using the talents we have in our areas to play some positive role.

Perhaps you wonder why I don’t encourage joining them. Well, almost all brilliant honest young men and women who jumped into it, and they were all better than I am, none of them came out unbruised. They are licking their wounds as I’m speaking.