My son, Bayethe, was born in 2004, only
a year after the Media Institute of South Africa (Malawi Chapter) and other
organisations with the help of the Open Society Initiative for Southern Africa (OSISA) had
drafted for this country the Access to Public Information Bill. Bayethe—I use
him to measure how long we have groped in the dark to have our MPs pass this
Bill into Law—is now in form 1. In between so much has happened, more
importantly the ransacking of the public purse at Capitol Hill, the seat of
Government, an event that has no parallel in the history of public thievery in
the country—I mean the scandal christened Cashgate.
I am sure that if we had passed the ATI
Bill by 2005 or thereabout some of these scandals could not have found a rung to
perch on in our democracy. Today there is talk of probing the late President
Bingu Mutharika’s accumulation of wealth estimated at over MK60 billion, all
this ‘made’ within the short period of time before his untimely death in April
2012. As I am writing, the first multiparty President, Bakili Muluzi, the man
Bingu had succeeded, is answering, no, has been answering corruption charges.
Only a few weeks ago, news was rife in
the country erupting from the ICT rumour mill of the social media that the
President had either died or was dying in the United States. When the President
finally arrived and was unable to use his right hand, for he went about greeting
those gathered, using his left hand, like Caesar, the lie-peddlers felt the
prophecy had hit home. Days later, the President told the nation how that
rheumatism had made it a bit numb, that now, though seventy-something, he had
the entrails of someone in the thirties. In fact, he invited one Malawian boxer
resident abroad for a fight. You would think things ended there. In Malawi
things do not end like that. After an event like that, you expect some pushing
and shoving, some blame-shifting, some press release and finally, some apology.
The rest has happened in that order except the last, for a war is raging by the
day between the private media and the President backed by the State House
communication machinery. As I’m writing, the private media houses have released
a communication to the effect that they will give coverage involving the
President some blackout, to demonstrate their frustration.
Many have said things like these should
have been avoided if we had taken a proactive stance, passing the ATI Bill into
Law only a year or two after it had been drafted. Today, because information
from the high places is so scarce, people have to resort to the grapevines for
the health of their President.
Some years ago, one professor, I think
at a conference that took place in Mzuzu, made an interesting observation on
consequences when a national broadcaster is left to serve only those in power
or those connected. He warned that every time people are denied an entry from
the front door, they learn to make it through the backdoor. What he meant was
that monopolizing the national radio was by and by creating a floodgates of
backdoor communication. What he meant by this was that if you do not proffer
the people a formal opening, the people will find , because if you do not
provide the people with the normal channel of communication for their civic
participation, they learn to do it via the backdoor. How right this man was,
for years later that’s exactly what has happened, that the people created their
own platform from where they launched gossip of worst nature and effect—saying
our President was ill and was dying.
The worst thing with those rumours was
that some within the ruling party had started realigning themselves with those
they thought would ascend to power, and this they did, on the strength of the
rumours that were circulating. A few days ago, the President made it clear he
heard everything when he said, “I am surrounded by Judases.”
A society that is open saves itself from
the inconvenience of fighting rumour. Access to public information, which also
encourages deliberate provision of communication, would ensure the people were
kept abreast with the illness of their leader so those with a heart of GOD
would spend time of their knees, praying for their leader.
Apart from creating an environment of
certainty among the people, ATI would also form an important instrument in the
creation of policy ownership among the people. A story about my own life can
illustrate this.
When I was thirteen I moved to a village
called Mtendere near Zomba Sawmill. The village is at the foot of the Zomba
Plateau, then a natural facility endowed with everything beautiful—natural
green, wild animals, fruit of all nature, tranquility and hope. As young boys,
we spent most of the days in the forest, gathering fruit or just playing under
the watchful eye of nature. None among us would engage in an activity to
disturb nature. If any would suggest that we should set the forest on fire, we
would all be on him, for the forest symbolized our survival, our very
existence. Today, every year, between August and November, that forest cackles
with flames of huge fires. Unfortunately, I have never heard any politician
talk about this yet that plateau is part of Zomba. There are three places where
you get the sweetest natural water in Malawi: Mulanje, Mzuzu and Zomba. There
is a lake in Zomba, Lake Chilwa, whose life is dependent upon Zomba.
Politicians have no time for that; they go about persuading us to accept that
they are constructing us quality macadamized roads, that they are better than
their predecessors and and so on and so forth. In the end, we are breeding a
generation of people that feed on lies, a generation that does not know what it
means to own our natural resources let alone the temporary physical
infrastructure the politician is erecting in the name of serving us.
When young I could not think of setting
my forest on fire; I owned it. The same applies to policy. No matter how nice a
particular policy, if you do not connect with the people so they should own and
protect it, you risk what is referred in policy language as ‘policy sabotage’,
where the implementers deliberately shun carrying out a particular project because
they fear doing so would spark anger in the beneficiaries.
Malawi is undergoing the most ambitious
public sector reforms ever, and this despite advice to the contrary that best
reforms are those implemented incrementally, i.e. one facet upon another.
History of public sector reforms in the country—from the first wave of PR
reforms that followed the 1964 Skinner Commission and those that followed the Economic
Commission for Africa to the second wave of reforms authored by IMF/World Bank
through the structural adjustment programs (SAPs) in the late 1980s—one vice
keeps showing up for their failure: the efforts were perceived by the people as
a stepping stone to formalizing corruption in the high places and as a
mechanism to reward cronyism. This mistrust still reigns today, and I believe
that one of the reasons the people have refused to believe in such important
undertakings by their governments is that they see such efforts as institutions
built and run in secrecy to serve interest of the elite few. If the ongoing PS
reforms are to work, the people have to be afforded an opportunity to follow
them and contribute where they can. They must also be given an opportunity to
ask their Government to explain decisions the people do not understand. The
danger with disregarding this component on the reforms is that they will be
deprived of ownership, and without general ownership, reform sabotage results,
and with it, reform failure.
When a human being owns a problem, that
problem is as good as solved. This is what Malawi needs today. Malawi does not
have a people who can own their problems and work collectively to solve them.
People develop the mentality to own their problem when they are afforded an
opportunity to understand the magnitude of the problem and when they perceive
that they are part of the solution. Access to Public Information can play an
important role in triggering ownership among the people.
There is another important reason why
Malawi desperately needs ATI Bill today and that is that the civil service in
the country has now changed from an institution that used to protect the people
to one that preys on them. Unfortunately, criminal law, the very instrument
that was created to stand for the people has been found wanting. In the Lutepo Case, the Judge, Honourable Justice
Professor Kapindu said the following words, which I find, illuminating:
I
must begin by pointing out that the sum of money which the convict herein
conspired with others to defraud the Malawi Government of, and which he
actually laundered, at MWK 4,206,337,562 (Four Billion, Two Hundred and Six
Million, Three Hundred and Thirty Seven Thousand, Five Hundred and Sixty Two
Kwacha), is unquestionably so huge. I have gone to the lengths, breadths, and
depths of jurisprudential research—carefully going through all the available
African Law Reports (Malawi Series), the Malawi Law Reports from the initial
volume of 1923 to present, decisions published online, and I have also gone
through a panoply of unreported decisions of superior courts in Malawi, both
old and new. I could find no single case where a person was ever convicted for
conspiring to defraud, defrauding and/or laundering, or otherwise embezzling,
sums of money of such huge proportions as in this case. None of the cases of
this genus or species could come even close.
Honourable Justice Professor
Kapindu was expressing dismay at the plunder at Capitol Hill that came to be
known as Cashgate when top crook politicians colluded with businessmen and
women and banks to defraud Government of money, claiming these were payments
for goods supplied and services rendered to government departments when in fact
all this was a creation from the studio of satan.
In the Lutepo Case, the convict
had confessed to be used as a go-between in the thievery at a commission of
slightly 10%.
The learned man later expressed
dismay at the mismatch between the plunder and the sentences as our Parliament
had put forth in our statutes:
The
legislature set the maximum sentence for money laundering at 10 years
imprisonment and for conspiracy to defraud at 3 years imprisonment. The maximum
sentence under the MLA (Money Laundering Act) is particularly strange
considering the possibilities of very serious crimes that may be committed
contrary to that Act. I am not sure why the maximum penalty was pitched so low.
Perhaps the framers of the legislation might not have envisaged that offences
under the Act might assume huge proportions of the magnitude encountered in the
present case. . . . The law makers should seriously reflect on whether the
punishments we have on the statute book are sufficient to address the mischief
intended to be cured by the legislature through the Money Laundering, Proceeds
of Serious Crime and Terrorist Financing Act.
Put simply, his lamentations were
that we are faced with that type of pillage that has no parallel in the history
of crime in the country, a kind of punishment, total punishment, to the poor. And
sadly, we have reached a point where crime is making mockery of any form of
punishment under the Malawi criminal justice system.
It is funny that when Malawi just
attained Independence in 1964, there was great hope that the criminal justice
system would work so well as to prevent future mischief. The Cashgate plunder
has made it all look a joke, a looooooong joke.
I think a diversion should help
here for contrast.
In the early days after our Independence,
one white man, Rendall-Day (Rendall-Day v
Rep [1966-68] ALR Mal 155), was
charged with five counts of theft. Rendall-Day was Chief Executive Officer of
the Malawi Housing Corporation, and part of his duties was to approve and sign
cheques on behalf of the Corporation. He bought for his own use a house upon
which the Corporation had paid a deposit of £385. The Board of the Corporation
agreed to lend this deposit to the appellant (him) until the house was
transferred to him, but he later made out cheques in the Corporation’s name for
a further £1,400 without authority. He also carried out extensive improvements
to the house, using workmen paid by the Corporation and ordering materials on
corporation order forms. When the dealer’s bills arrived for payment, he asked
the Corporation accountant to make out vouchers and paid them by cheque. He was
sentenced to 25 months imprisonment with hard labour. Rendall-Day appealed, but
the appeal was dismissed or put differently, it never succeeded.
The court, in rejecting the
defence argument that the sentence of 25 months imprisonment was excessive,
said:
In
an emergent country (young nation, Malawi as was then), it is inevitable that
many persons occupy positions of trust in relation to public money. However
they may not have had a sufficient education or that rigorous discipline in
honesty by which young persons benefit in countries with a long history of settled
law and order. It has therefore, been regrettably necessary to impose heavy sentences
in this country for thefts of money, particularly theft of public money, to
induce a climate of opinion where to steal is condemned not only by the law but
as a bad moral course. Such sentences are intended to rehabilitate
offenders, and to deter the many others who are tempted to steal the money they are
handling.
Although this sentence, a sentence
of just over two years, was criticised for being insufficient for the theft of
over $3,000 public money in Malawi in 1966, the rationale for the sentence
impresses me, especially that this was in 1966, and the court was able to
foresee the need to deal with plunder of public resources to deter the same.
Some fifty years later, we can steal with impunity and leave the whole nation
reeling in deprivation, making a mockery of every nature of sentence our judges
can think of.
If in 1966 the people needed
public trust; they need it more today. Today, the criminal justice system has
lost its saltiness; it’s insipid, and legal scholars are now suggesting that we
should resort more to the concept of trust and equity (which can go beyond
legal barriers to trace loot) to ensure no one takes advantage of the people to
siphon public resources. Access to Public Information legislation serves better
on this framework because it could enable the people monitor whether Government
(and in the law of trust, it can be argued that a government owes a special
relationship to take care and protect the people) is doing everything according
to their wishes. The basis of our Constitution is that power is given to those
in power on trust; those who give them this power must thus, be afforded the
opportunity to see through what happens inside their Government.
The importance of ATI law to
Malawi is not just that we should add to a catalogue of laws that know only to
bite the poor; this one is for the poor to bite those that bite them.
It seems this time Parliament is
determined to pass the ATI Bill into law; unfortunately, it seems there are
still disagreements over the contents of this legislation.
A few days ago I read inputs by
stakeholders to the Bill, some genuine, but some pure confusion.
First, a number of stakeholders have
raised concerns that, this Bill, if passed in its present form, will be an
instrument powerful in name only. Some have taken Government to task for hiding
under the Official Secrets Act to deny the people an opportunity to access
public information; some have bemoaned the removal of the provision for an
independent body on matters of complaint where particular information is denied;
and some have even expressed worry that ‘information will be accessed through
the Internet’ and that some fee will be required to ‘buy’ it. And some have added,
they want this legislation to be guided by principles of maximum disclosure,
minimum exemptions, and that Government should allow the people to access information
based on the ‘public interest’ yardstick.
First, these things are reported
in the media, and at times I have doubts whether those reporting give us an accurate
representation of what was said. This I am saying because I find some things
confusing, and I question whether some of such points did indeed come from the
sources the reports attribute them to.
In one article I heard something
like the Government was denying the people to access public information based
on public interest. I think what this means is that Government is saying that
no one should use ‘public interest’ as a criterion to request public
information.
Public
interest
Let me just suppose that
Government had indeed taken this position, which I do not believe is what the
Government meant by this, for, in all fairness I can never see an Advisor
advising Government thus, and this is for a number of reasons.
First, public interest is everything
the Government does in one word. It is the hub of the Constitution of the
Republic of Malawi, the centre of everything our Constitution is. Anything
Government does hinges on public interest, even the PS reforms (mandated under
s. 30 of the Constitution) have a backing of public interest. The power those
in power have is on trust as per sections 6 and 12 of the Constitution. So how
could the Government say the people should not access information bases on
this? This is why I say someone must have quoted our Government wrong. But
suppose the Government had indeed taken this position, then judicial review (a
process where a person with a legal position can seek clarification from the
courts on the process a particular public officer or public office followed in
making some decision he considers unfair to him) will have to do its job, and
fortunately, there is enough case law precedent all over on judicial review on
ATI issues. It is a position Government can never sustain. So people should
fear nothing on this; I think the only problem maybe will be we have very few
judges in the country.
How
about maximum disclosure, et cetera?
Maximum disclosure simply means
that only under rare circumstances should the public be refused access to
information. People think it’s easy for Government just to wake up and say,
“You cannot access this information.” It must give convincing reasons why
accessing the same will not be in the interest of the people, otherwise, the
mechanism is that if you assert and you fail to redeem yourself, you lose it. I
am never perturbed by issues of maximum disclosure. Access to public
information takes care of itself on the ground.
What people forget is that when
it comes to ATI, rarely do the public get what they want. True access comes in
when the courts begin their work especially where a legitimate request is denied
on reasons that are frivolous or senseless.
Retrospectivity
of the law and ATI
Many people think that the fact
that Government takes a stand that the law will not apply retrospectively means
access of old record or information will not happen in practice. If you read it
that way, then you are missing the interesting facet of this legislation. I
will give just one example on this. In 2006, in a court case involving Mittasteel
SA Ltd (formerly ISCOR Ltd) and Hlatshwayo, the South African Supreme Court
held that a private institution formerly owned by government is duty bound to
release information generated in the period during which it had been a public
entity. This is an example of issues that define themselves with time on issues
ATI. An issue cannot be clearly provided for in the Act, but situations will
show you how that should shape up. This is why I welcome the ATI in any
form—the legislation will shape itself on the ground with time.
The Mittasteel Case talks of ‘releasing
the information’ but ‘release’ is not usage though the essence of ATI is both access
and usage,
and as way back as the 1870s, in the case involving Sturla and Freccia, Lord Blackburn defined public document
as “a document made by a public officer for the purpose of the public
(i.e. the public getting or accessing it) making use of it and being able to
refer to it (getting or accessing it and using it).”
If the Government thinks that by
retrospectivity it will bar the people to access, then it is reading it all
wrong; the question, I think should be whether such information would be
admissible in court or whether you can use it to lodge a claim or a complaint.
Otherwise it will mean once that once such information is generated it will
live to be destroyed. Usually in most ATI regimes, there are periods prescribed
for particular information to be released.
On
people accessing minutes from cabinet meetings
From a number of cases I have
read on this, the principle looks simple: for those meetings where there won’t
be harm (harm in terms of derailing a particular public policy issue for the
people), the cabinet can be justified to keep it a secret, but not forever. Or
for those meetings bordering on high national security, the cabinet are
privileged to keep it under wraps. However, Government should justify why this
is the case. Otherwise facts on the ground will demand that they release it.
No matter what the Bill says, if
Government insists that it shall never ever release minutes from their
meetings, then they are reading it all wrong, and I have no doubts courts shall
be provided with fodder to spurn the same.
On
using the Official Secrets Act (Cap. 14: 01 of the Laws of Malawi)
Which country in the world would
want their high security sold on the roadside? None. So what is the fuss on
this? Well, it could be that people fear the Government can use it as an excuse
to refuse every request. Do not forget that when Government refuses a
particular piece of information it will have to give convincing reasons for
that. These reasons can appear ‘convincing’ on their side, but when you test
them on the harm test or public interest test, their justification can be found
wanting. Remember, principles on ATI are evolving on a case-by-case basis.
Besides, read the “1996 Johannesburg Principles on National Security, Freedom
of Expression and Access to Information” and measure for yourself the yardstick
for a genuine claim for threat of national security. In short, the issue of
Government using the Official Secrets Act is blown out of proportion. Reality
on the ground will be different.
On
22 Acts of Parliament that would restrict ATI legislation
I think the major work on this
Bill should have been revisiting the identified 22 Acts of Parliament people
say can restrict this legislation not to fear the shadow postures by those in
power, for those will be dealt with on the ground. It would be important to be
anticipatory and therefore read such provisions against those in the ATI to
predict how they will live side by side. As far as I am concerned the danger to
ATI lies in marrying it with those 22 anti-ATI legislation Acts already on the
ground.
Independent
Commission
An independent commission was
going to be the best arrangement for our country, but if they insist otherwise,
let them go with it, because they will not run away with it forever. The High
Court is also mandated with the power to analyse how public decisions are
arrived at through a mechanism called judicial review as I already stated. People
should not lose faith on ATI; let Government give us anything; we shall perfect
it with time, though my only concern is on how truly independent our courts will
be on these issues. I have never even once believed that a system chosen by
someone can turn round to insult that chooser. It is like saying Judges can
handle a case in which they are asking for pay rise for themselves by
themselves which happened once in 2006. Every time I read that judgment, I
laugh, because a great attempt was made to justify why though it was something
to do with them, they were still going to handle it, and they were going to be
independent. Now you ask me how that case ended? I give you the opportunity to
judge.
Other
Instruments on ATI
Apart from my concern from the more
than 22 Acts of Parliament that can restrict ATI in the country (something we
do not seem willing to address now), ATI will also be non-starter without a
robust record management system in the country. This is a problem even in the
judiciary where one would naturally expect good record management, them being
people who deal justice. Bu in “An Overview of Malawi Legal Information Institute”,
Mariya-Badeva Bright minces no words on this when she says “Record-keeping
practices in justice sector institutions are generally poor.” She adds by
saying the same affects the smooth delivery of justice.
Paul
Lihoma in his PhD Thesis “The impact of administrative change on record keeping
in Malawi”—2012, proffers an interesting history on why the country generally
fares poorly when it comes to public record management. Lihoma observes that
the Malawi Public Service Regulations, a collection of principles or guidelines
for the civil service, was a renaming and revision of a similar document that
was guiding the civil service before 1964. He points out a deliberate flow,
namely the deliberate omission of orders which mandated public officers to
exercise meticulous public record management. The predecessor guiding document
had this component yet the new Malawi omitted it when the MPSR came into being on
15th June, 1966. Worse still, throughout the revisions to this document, none has
seen any wisdom to include the record management component in the document.
One would question whether there could be a
mechanism to force or encourage a government to start keeping its house in
order as far as record management is concerned. In 2006, a constitutional court
in Hungary delivered an interesting ruling on this. In Re The Constitutionality of Provisions on Record Keeping of
Governmental Sessions, the court held that government is under the obligation to keep records for public information.
It said this can be for a short or a long period of time. It said not to do so would
restrict the people from accessing public information.
Another important instrument for
ATI for a country with as low literacy rate as we are is introduction of some
Adult Literacy Programme aimed at creating a sensitised citizenry able to access
and use public information in exercising their democratic rights.
On
fees to access the records
This is the norm in most
jurisdictions though the point is that such fees should not inhibit access. In
short, I do not see any reason why anyone should argue over this as though courts
give people free services or even free photocopying.
On
information being accessed online
This day and age it would be naïve
of someone to claim they are not happy information will be accessed online. I
thought people are moving away from the hard copy to online things? I do not
see validity in anyone expressing worry over this. In fact, good ATI regime
goes hand in hand with what we call E-Government where ICT is used to serve
public interest through aiding in provision of goods and services to the
people.
When the Government shows
agitation over information, people should not get surprised; all governments
live in fear of their acts falling into ‘wrong’ hands. Even the white, at
Independence, showed us he can dread information falling into wrong hands.
Lihoma quotes one white man, a District Commissioner, who confessed to receiving
instructions from the seat of Government then, Zomba—advising all District
Commissioners to destroy all government records under their custody days to
Independence: The man, a former white colonial District Commissioner in the
District of Nsanje had this to say in 2010:
We
received instructions from the Secretariat in Zomba that we should destroy all
the sensitive files to avoid the new government seeing them. You should have
seen the bonfire behind the DC‘s office at the Boma – the files ere up
in flames. I was personally there, the Police was there and other people
gathered to see what was happening.
I
think I should finish with making this observation clear—ATI is not a war
between the people and their governments. The legislation serves many purposes
as far as encouraging openness, transparency, accountability and citizen participation
is concerned. It’s interesting the wide range of issues ATI addresses. The
following court cases can testify to this:
In
the CPIO, Supreme Court of India v
Subhash Chandrah Agarwal and ANR (a 2009 High Court case), the Court held
that asset declarations of Supreme Court
judges should be disclosed if there is public interest in disclosure so long as
there is an attempt to balance the interest in disclosure against privacy
concerns.
It can also apply to cabinet
ministers. In Centre for Media Studies
and Peace Building (CEMESP) v Liberia Anti-Corruption Commission (LACC),
the court held that asset declarations of cabinet members and their deputies
shall be disclosed because public interest in the fight against corruption
outweighs the harm the disclosure can cause to the individuals.
How about to Members of
Parliament? Well, in Legal Defence and
Assistance Project (GTE) Ltd v Clerk of the National Assembly of Nigeria,
the Court held that salaries of MPs should be disclosed because that is not
personal information.
Another interesting case is UK All Party Parliamentary Group on
Extraordinary Rendition v Ministry of Defense [2011] UKUT 153 (AAC) where it
was held the public had a right to access information concerning detention and
interrogation policies because the people have to have assurances that
detainees are not tortured.
The preserve of Access to Public
Information is so huge, what the legislation provides is just a starting point.
Most of the issues are as a result of court interpretation of issues or cases.
The legislation covers even some negotiations between a public office and
donors, information about public procurement, cabinet minutes if harm could not
result after disclosure, et cetera. This is why I always insist that Malawians
should not fear the so-called butchered Bill, let that Bill pass into law, for
the proof of the pudding is in the eating.
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