Access to Public Information Legislation in Malawi and a Call for a Sane and Balanced Entry Point

A few days ago, owners or managers of media houses in the country including other names who matter most in the industry paid the President a visit at one of ‘his’ houses—Lilongwe State House. These people, and in their midst was Chairperson of the Media Council of Malawi, carried to the President a package of issues surrounding Access to Public Information (ATI) Bill, a proposed piece of legislation which, twelve years from inception, still wears diapers. These people came back ‘disappointed’, to quote one news source though. For reasons I will explain later in these rumblings, I do not subscribe to this sentiment.

The background to that visit is that though not long ago there had been some serious and promising movements towards the passing of this Bill into law, some two months ago, with little or no explanation at all, the nation had made a dramatic U-turn on the commitment. And just as I was giving in to a feeling that we were now ripe for The Guinness Book of Records for sitting the longest on a proposed piece of legislation, came a piece of good news. Yes, good news. Good news because for the first time, we now know the reason the President, the man who, during his campaign for office, vehemently preached the passing of ATI Bill into law, suddenly turned non-committal on the issue.

At least the President has given three reasons—two of which to do with ‘inconsistent’ provisions in the Bill, and the other one, you have to skim it out from a thicket of issues, to do with the need for professionalism among media practitioners in the country.

To be honest with you, none of the issues raised appears significant barriers to passing the Bill now. In short, we need to address the concerns as quickly as we can and see the Bill passed into law.

This article is on the question of media professionalism; I will tackle the question of retrospectivity of the law in a subsequent article. Of course, I meant to address all the three questions in this article, but when I started writing it, I quickly realised it was going to be a voluminous piece of writing if I were to put all these three issues in a single package.

In the context of the issue at hand, looking at professionalism among media practitioners is synonymous to asking whether the President was right to demand professionalism from media practitioners in Malawi. I think there is no better way to answer this than to look at the common ground between government and journalism.

Well, government and journalism have one thing in common—they both serve public interest, though each has its own definition, expectation and understanding of ‘public interest’.

First, it should be noted that although everything ought to be guided by the supreme law of the land, journalism has what is described as the newsworthiness criteria, parameters it uses to qualify an event as news. At the centre of these criteria is the public or public interest which forms the yardstick for determining whether some news is indeed worthy some place in a paper or bulletin. Criteria of news in the face of public interest lead to agenda setting, i.e. that editors and journalists filter through events to determine which to put at the top for a country’s attention. This is why some scholars argue that the best journalism is that which sets the right agenda for democracy.

Talking of newsworthiness criteria and agenda setting on the base-stand of public interest should not give the impression I am saying in journalism the Constitution takes the backstage. No, for that would be tantamount to ousting the power of the Constitution. What it means is that, as professionals, editors and journalists, within the context of law, measure the worthiness of news by using these particular criteria. However, when writing the news, they will take into account whether what they are saying does not infringe someone’s rights, an area not easy to judge as it is best dealt with on a case-by-case basis, i.e. an area to which it would be impossible to have one general rule because it is often determined by context.

When you look at the lobbying for Access to Public Information Bill from the angle of the media, you quickly realise (though they would be quick to dismiss this) that they tend to quote the following sections of the Constitution: 35 (freedom of expression); 36 (freedom of the press); and 37 itself (access to public information) as grounds for Parliament (National Assembly plus the President as Head of State) to pass the Bill. These sections are a reflection of Article 19 of the Universal Declaration of Human Rights (UDHR), Article 19 of The International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and Peoples Rights, Article 19 of The African Charter on Democracy, Elections and Governance, Articles 9 and 12(4) of The African Union Convention on Preventing and Combating Corruption, The Africa Model Law on Access to Information adopted by the African Commission on Human and Peoples’ Rights in February 2013, and the Rio Declaration Principle 10. The UDHR entered into force in this country on 22nd March, 1994, and the ICCPR on 11th September, 1996. And our Constitution in section 211 recognises such international instruments as a source of law in Malawi.

So are the media wrong in using these sections which are also in line with other important international instruments? No, not at all, only that this approach leads them to understand ‘public interest’ from a slightly different angle, not wrong though, but not all-encompassing.

Now, because the media tend to approach issues by looking at these sections, their definition of public interest is mostly on whether the population is guaranteed of these freedoms, and mind you these are not the only freedoms in Chapter IV of the Constitution (Bill of Rights).

The media must not look at ‘public interest’ only from the meaning of sections 32 to 37 or 38 of the Constitution; they must look at other relevant sections in the Constitutions and bring on the table the total picture. Section 6 of the Constitution, for example, states that the authority to govern comes from the people themselves. Authority is that legitimacy power gives you to act in some way. In this case, that power is given the government (at elections) by the people. In short, the best understanding of ‘public interest’ is that which is good in the eyes of the owners of power—the people. This is what section 8 describes as ‘interest of all Malawians’. Section 12(1) also talks of the ‘interests’ of the people, and how that all legal and political authority of the state is entreated to serve in this ‘interest’.

The question now is whether the world should accept that the media understand public interest better and so whether it is wisdom to let the media define or dictate the needs of the public in a democracy. Well, I have said the media lack that total picture because ‘public interest’ have to be understood mostly from perception of public administration and constitutional and administrative law rather than merely from the parameters of newsworthiness.

Now, if the media do not wholly qualify for this, is the politician the appropriate institution to guide a people on public interest? I do not think so either, for any government in power will always have additional meaning of public interest. Most notably, such a government would want the people perceive issues from the same lens as those in power in order to retain power.

What all this means is that there is a pitched battle between the media and those in power, a situation which entails that media literacy should equip the people to question both, though in differing degrees.

The conflict between the media and those in power—the media pulling towards one direction to let the people know everything and make right judgement and decisions, and the government fighting tooth and nail to ensure the people learn from the filtered lens of government—is the health of any democracy. This pulling is what makes a government aware and therefore do things openly and transparently. And this pulling remains that healthy until a government begins to use underhand tactics to frustrate the media or trammel media freedom or until the media begin to go overboard to use tactics that eventually benefit them as individuals rather than public interest.

In short, for democracy to flourish, there must be some form of media monitoring to ensure they stick by the rules of the game. But the question is who should impose such rules.

If governments were perfect and if governments did not harbour extra interest, it would be advisable to say such a mechanism should come from the government itself. But it is common knowledge that people serving in governments are not angels; they can steal, they can murder or use some seemingly innocent methods to inflict pain on dissent. For the reason, media monitoring should be left in the hands of some neutral or independent mechanism without taking into account of the fact that where a government seems in conflict with the media, some benefit of doubt should be given to the media.

In short, it is not wrong to propose a mechanism to police the media so long as the mechanism does not originate or operate at the hands of a government in power.

So was the President wrong in asking the media to reflect on their conduct? No, not at all. If he said he was going to use some government machinery to do so, I would fault him for, there would be a great cause for worry. He asked for the right channel—Media Council of Malawi—to do it the same way the Malawi Law Society does with its lawyers. As far as I am concerned this is not politics; this is viewing things from a total picture, which to me is normal.

So, was the President right to talk about issues of media ethics while discussing Access to Public Information?

I have said the media tend to define media freedom from selected provisions of the Constitution or other international instruments. An important principle of interpretation of law in Malawi (and I believe elsewhere) entails that one iota of law must not be read in isolation (or conflict) of the other, but must be read so as to complement other provisions of the Constitution. As long as the media read the issues of ATI by looking at selected provisions, there is a danger that we might overlook other provisions on personal freedoms. The media must look at the total picture. Once we do this, our ATI Law will be the best in the world. Remember, context matters in law and public policy. It pays little to copy wholesale legislation from elsewhere and expect it to work in our context as well as it had done there.

African media must be understood from African context. The reason for my saying this is that the media in Africa is not the same as the media in the West in terms of both ideology or area of focus and resources. An often-cited example is on how the Western media define news in Africa, and the example of the Rwandan Genocide arises here where some scholars argue the situation went on unreported or received little reporting and attention for some time because cameras were set on South Africa which was undergoing elections around the same period.

In short, if our ATI Law is to be the best on the African continent and indeed in the world, let us refine our entry point by subjecting ourselves to a massive scrutiny and reflection in the spirit of give-and-take. Let us also not choose and pick on who should point out a fault because through that our legislation will undergo purification and befit the Malawi context. We need a piece of legislation that should be owned by all Malawians so we can use it to demand our commitment to the same.

African Leaders Must Watch More Football

I never knew I would love football until that day in 2001 a friend of mine ran me through the on-field exploits of one ‘black’ French player who was playing for an English club at the time. That friend of mine introduced me to something good, for, from that day, I’ve come to learn a lot about football beside the obvious physical element involved.

First, I should start with an apology—all my examples will be from the English Premier League. If I tell you the local team I support, we'll straight turn enemies because here supporting different teams is like supporting different political parties; it breeds enmity. I want to avoid that.

To my subject.

Football entails competition, great, great competition. Teams sweat blood to outdo each other for some gold hidden behind that plastic capsule of ordinary air. It is this element that compels me to draw some similarities or even contrasts between this game and the bloody game of politics, African politics.

One similarity between football and politics is that they both involve an element of competition though from differing approaches and for different results altogether. The competition in football is done on a safe level playing field. Politics on the other hand is played on a kind of mine field—an undulating terrain littered with bribery, intimidation, underhand dealings and death.

The competition in the two games goes by some rules, different rules though, for one is a set of normal sensible rules, and the other, law of the jungle.

One article I read a few years ago on the power of sports defined football as a collection of rules. That article said all we watch in sports is a collection of rules and nothing more. It said, for following the rules, the players and their supporters are rewarded, and for breaching the rules, the players and the supporters get punished.

Each side must contain eleven players, one of whom, goalie. The goalie is the only player in the field to use hands when playing. He or she will use the hands only in his or her area; he or she cannot go to the opponent goalkeeper’s area to use his hands there. And for the general outfield players, you never at all use a hand to score. Scoring itself is a set of rules; you break one of them, your goal will not count.

In football, although there could be space between the players and the opponent goalie, there is a limit to which you can use that space—you must be in the same line with the opponent so you will fight from the same advantage or disadvantage. They call it offside, if you stand close to the opponent goal way away from the opponent outfield players.

All the 22 players listen to one man who uses the ordinary whistle to ensure each one of these 100,000-pounds-plus-a-week earners obeys every line of these rules. This man in called the referee. In politics, at elections, he would be known as electoral commission chair.

Football is played in 90 minutes, after that you have to accept your time to redeem yourself is gone. There is no third term in football. In African politics you never leave the arena alive. In Africa you can accept to plunge a fine nation into chaos on ‘the necessity of a few more individual dinners’.

In politics, the referee at elections is chosen by those in power for those in power. His mission is to see the bosses carry the day. This man or woman owes no allegiance to the public. How can he when the public wield no power? You would worry about the legitimacy and consequences of the outcome; he has no time for that; he’s a man on a mission.

In football there are limits beyond which you can never celebrate your victory of the field of play. If after scoring, you go taunt your opponent, you risk suspension. In politics, the man or woman you beat becomes the subject of ridicule, your object; you can say anything about them, and power stripped of them, they will have nothing to use for defence. So, in African politics, the loser is paraded on television, accused, judged, sentenced and arraigned. The acting is nothing but a show to would-be aspirants never to dare take that path lest they should they should end up in similar shame.

This contrasts sharply with happenings in football where the loser is appreciated for giving the winner a run for his money. In football, the loser hugs the winner; the winner hugs the loser. In football, the winner and the loser exchange jerseys—emotional memento.

I am not sure politics knows quality, but I know for sure football minus quality becomes a different game.

Not long ago, Manchester United fans in the English Premiership were baying for their Manager’s blood for playing, not bad football, for you could not say they were bad when they were on number 3 out of 20 teams, but for playing a form of football deprived of ‘the attack brand’ associated with wearing a Man U jersey.

On the same, Adidas, which in July 2014 signed a 10-year contract worth £750 million to make Manchester United kit, said they were still supporting the team ‘albeit their recent style of play’. In short, Adidas, a quality conscious institution it is, was asking for quality play.

In politics if you ask those in power for quality or for results, you are creating an early grave for yourself. Those in power ‘won’ at the elections and are given the blank cheque to run their country the way they deem ‘appropriate’.

Politics is littered with jealousy of every stature and age. There is no jealousy in football. When one Arsenal legend, Thierry Daniel Henry, was asked to mention names of defenders he remembers for giving him a run for his money, he said: “Ledley King for being smart” and ‘Rio Ferdinand for being a kind of wall or bulwark”. Ledley King was a Tottenham Hotspur defender. If you know the feeding relationship between a cat and a rat, you know Tottenham and Arsenal, period. But Henry was able to tell the world who he respected as far as smart or fair defending is concerned and it was a Tottenham man.

In politics, if you would dare mention the success of a political opponent whether in the name of party or individual, you are done with; your career is over. This is never the case in football.

Until a couple weeks ago, Andy Cole, a former Manchester United player was the Premiership’s record holder for second most goals scored, only behind Alan Shearer, the all-time leading goal scorer. Cole’s history was broken by Wayne Rooney in a game against Swansea. Andy Cole wrote: “I was at Old Trafford on Saturday when Wayne Rooney scored a great back-heeled goal to put United ahead. . . . It wasn’t only a quality finish which ended an eight-game run without a win, but it meant that he moved ahead of me to go second in Premier League’s all-time top scorer chart with 188 goals behind Alan Shearer…. I was pleased for United and for Wayne and went to Carrington this week to see him and congratulate him.”

How on earth do you say good of someone that has just made you look not that important any longer! Football does that, and it does it openly.

You know Rafa Benitez. Benitez was a Real Madrid coach, but was sacked for failing to meet the aspirations and standards of the team. Now Madrid has a caretaker coach, Zinedine Zidane. When taking over, Zidane said it is important to appreciate the foundation laid by his predecessor, the sacked Benitez. And Benitez in his statement wished Zidane and Madrid well, saying: “I want everyone at the club from the board of directors, executives, workers and all of the fans to know that it has been an honour and privilege to be in charge at this club . . . As a Madridista from Madrid, steeped in the traditions and values of this institution, which I learned in the old sports city of Castellana, it has been an honour to work for these colours. . . I would like to wish good luck to Zinedine Zidane, my successor, and his staff. . . .”

So people can appreciate the work of their predecessor and remain respected?

Well, football says that’s a possibility.

In football you are judged by results; it is a performance based endeavour.

Not long ago, Chelsea, another English Premier League giant, parted ways with one of football’s greatest coaches, Jose Mourinho. Only a few months ago, Mourinho delivered to the club the coveted English Premier League championship. But when his team could not replicate their last year’s exploits, the club had to tell the Special One it was time he left. I have already said of Real Madrid and their Benitez. At Manchester United, David Moyes, was given a similar dose. And before Moyes, several other coaches, including Steve McClaren, then England Coach but now at Newcastle, experienced the same fate: no results, no job.

On the same subject of performance, the Arsenal Manager, Arsene Wenger has often been criticised for putting too much trust in youth and for taking a rigid stance on spending on experience. Whenever he goes on a terrible run of form, this resurfaces, and this, despite the supporters’ full knowledge of him being instrumental in building the Emirates Stadium while still maintaining a decent style of play.

The subject of building the Emirates has reminded me of something. In Africa, that building would be called ‘Dr’ Arsene Wenger International Stadium. And this would stand regardless of the sponsor’s reasoning to the contrary. To make things worse, that stadium would be a place where women would gather to shower praise on ‘Dr’ Arsene.

In football, no matter how close your brother is to you, if he doesn’t play well, he has no room in playing for your team. There, they do not go by names; they go by the ability to perform and this is on merit. In politics, my wife, my brother, my in-law are all ‘good politicians’.

In football, you prepare some to take over and this happens on merit. There are youth academies to build youth into experience to take over from the aged. In politics, you never train youths lest they should rely on their power and charisma to usurp power from you. In Malawi there is a story of what happened to a trusted Minister to the first Head of State, after he had told a Zambian newspaper that he thought he would easily become the country’s head of state in the event of the death or otherwise of the leader then. When he returned, he was made to pay for aspiring the ascendancy. In Africa only one person is a leader; you must never show interest in a seat on which is a person.

In football, players are organized into a team. In other words, football entails team work. In politics, all the praise goes to the leader or you risk losing his support and therefore ‘opportunities’ in wealth accumulation. In football, a trophy won is lifted by the captain, but eventually it is property of every player there and the club and its supporters. Not in politics; in politics even money donated is still attributed to the leader.

I’m not saying all is smooth in football, no. There is corruption in football; players or managers can be on each other’s neck, but football treats differences in a far better and completely different yet efficient way for the good of the game and those who love it.

I think two instances should be in order here. The subject of the first is Benitez/Mourinho.

When Benitez was taking over at Real Madrid, his wife said Benitez was going to make right what Mourinho had made wrong at Madrid. Mourinho in return, asked her to take care of her man’s diet, apparently requesting her to mind her man’s weight, for Benitez was gaining weight.

The second also involves the same man, Mourinho, who mocked Guardiola (then Guardiola was a Barcelona coach) saying a person who enjoys football never loses his hair. Guardiola is bald, and Maurinho was poking fun at that ‘loss of hair’.

In short, it is not smooth-sailing in football, but unlike politics, football seeks open and quicker means to fix its problems. Currently, the world football’s governing body, FIFA, is undergoing the worst of times following revelations of corruption and bribery in high places. Despite this, football largely remains a very well-organised game supported by equally powerful infrastructure.

Recently, Sam Allardyce, Sunderland Manager said Liverpool manager, Jurgen Klopp, was the reason for the injury crisis at Liverpool. When Klopp expressed dissatisfaction with Allardyce’s sentiments, Allardyce straight away said, “Sorry.” In politics you would tell a person who would criticise you to go hang; in politics you never say sorry to an opponent.

Politics and football are both wonderful games but Africa has made the former look a pathway to hell. I know some people call politics a dirty game, but honestly I do not know its proper name in Africa. Of course, I am sure of football, this greatest game that transcends races and geography, a game I would place somewhere just below religion.

Problems dogging Africa can never go if we keep procrastinating. Through a spirit of humility and honesty, we must reason with our leaders to embrace the culture of love, unity, tolerance, humility and honesty. I personally do not believe in bullying our leaders or in beating them into submission; I believe in reasoning with them so decisions made are collectively owned, and are for the good of us all. This springs from my conviction that the last thing Africa needs is strife because in strife a thing that took ages to build can go up in flames in a matter of seconds only to haunt us with the burden to rebuild, something that takes even more years and resources to stand. In short, no matter our differences, Africa or parts therein must never accept use of bloodshed or destruction to resolve issues. I think football can teach us a few tricks on this.