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.
Nice
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