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.