Thursday
December 15, 2016 stands out as one of the most important dates in our history
as far as efforts to create an open society in the country is concerned. On
this date, somewhere about 8 pm, men and women entrusted with a constitutional
mandate to make legislation on our behalf passed the Access to Information Bill,
over a dozen years after it had been drafted.
Interestingly,
most MPs from the governing Democratic Progressive Party—DPP—were absent, and
attempts by the remnants therein to defer the debate to another date, proved
futile and were thwarted outright. Eventually, the opposition used their
numerical strength to carry the day, and so the Bill was passed. Truth be known
here that not all MPs from the governing side had opposed to the passing of the
Bill. In Malawi, a good rule of thumb when some MP is not in support of their
party’s position on a particular Bill is to run away from commitment by not
appearing on a day slated for debate. A similar thing happened one Thursday in
2002.
On that July 4, fifteen
years ago, our Parliament went through some political litmus test. The event
was to define whether we had indeed come of age to carry ourselves through the strenuous
demands of democracy. This was during the reign of Bakili Muluzi (1994-2004). That
Thursday (July 4, 2002) history was eventually made in the National Assembly
when MPs defeated the Open Term Bill, a piece of legislation seeking to amend
section 83(3) of the Republican Constitution to allow the President another
term of office following the expiry of his ten-year tenure (two five-year
consecutive terms) as provides the Constitution.
At the time, the
governing UDF had 95 MPs and needed only 33 to have history turned in their
favour, for with 33 they would make the two-thirds majority of 128 (i.e. 95 +
33) votes. A good 29 opposition MPs (19 from MCP, 10 from AFORD) and one
independent MP voted pro-amendment, but a total of 59 opposition votes was
enough to block it. If the governing UDF had extra 3 votes, it would have
carried the day, and goodness knows what democracy would be like under such
conditions. Today these three saving votes are proudly described as the three miraculous
votes. I’m not sure where the three could have come from, but there was a total
of 8 Members abstaining or absent. So, would the miraculous 3 come from the 3
MCP MPs who had abstained, or the 3 MCP MPs absent, or the 1 AFORD MP absent,
or the 1 Independent MP absent? This is not to say our focus on the subject
should solely be confined to the Members who had abstained or had absented
themselves, for it is important to respect the 58 or 59 (36 from MCP, 19 from
AFORD and 3 Independent) MPs who had actually voted against it. For a detailed
discussion on this, see John Luwanda’s ‘Changes in Malawi’s Political Landscape
between 1999 and 2004: Nkhope ya
Agalatiya’ in Martin Ott, Bodo Immink, Bhatupe Mhango and Christian
Peters-Berries (Editors): The Power of
the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, pp 49-86.
Well, remember
I’m discussing the passing of the ATI Bill, and my focus is on a job that now
remains unfulfilled on this legislation.
When the MPs
passed it (ATI Bill), those in the opposition taunted those on the governing
side, chanting Ailira! Ailira!,
literary meaning ‘how that you mourn seeing it slipping through your fingers!’
It had been the same in 2002 when the Open Term Bid failed to go through—the
news was greeted by wild celebrations. I remember one of our bosses in the
newsroom then, Late Prescott Gonani, saying, “I hear there were wild
celebrations there!”
Interestingly,
after the Open Term Bill was rejected (that July 4), on October 7 that same
year, the President dismissed Deputy Transport and Public Works Minister, Jan
Sonke, after the law-maker had written the President, warning him they were
wasting resources for nothing because the Third Term Bill (they wanted to
reintroduce it as Third Term Bill) would never pass through in Parliament.
Muluzi had all along hailed Sonke (a white Malawian national of Dutch descent)
as mzungu wambeu, literally meaning
the remaining white seed, but after that honest letter, Muluzi’s turned on him,
making fun of his skin colour. It is said there are no permanent enemies in
politics; well, there are no permanent friends either, and I’m speaking from
experience.
And this week, only
four days or so after the Members passed the ATI Bill, Malison Ndau, the
Information Minister, has been dismissed. A Church Reverend, the man has sought
solace in GOD, quoting Galatians 4:16: Have I therefore become your enemy
because I tell you the truth?
Some say the
dismissal has to do with his comments that he hoped the President would assent
to the Bill in time. The man has since been replaced by Nicholas Dausi, the man
who was heading the National Intelligence Bureau. I personally feel Dausi’s redeployment
a piece of good news. I had lots of questions why Dausi was given that (NIB)
post in the first place. Dausi once closely worked for Dr Banda, Malawi’s first
head of state, and Dr Banda’s atrocities towards those deemed dissenting are
well-documented. At the same time, I’m not happy Dausi has become the centre of
the DPP’s communication machinery.
Access to public
information legislation attempts to create an open society. I know this is a
different era, but often the past is there to warn us about the future.
According to Jack Mapanje, the MCP had subsisted on orality, despising the permanent
form—written culture (see ‘Afterword’ in Harri Englund’s A Democracy of Chameleons: Politics and Culture in New the Malawi. In
fact, Mapanje takes issue with this culture because it exonerates where it
should convict. Access to public information is a system that believes in the
power of documenting, managing, keeping and accessing information in accessible
formats. Perhaps we should wait and see.
Many of the comments
I have seen on the passing of the ATI Bill have tended to praise the opposition
for not sleeping on their job. But it should be pointed out that the Bill was
passed while most members from the governing Democratic Progressive Party were
absent. Such absences could be genuine or just a mere ploy never to be seen
belonging to those hindering progress. I have already discussed to some length
how in 2002 a similar strategy had been used to foil the Open Term Bid.
Am I underrating
the role the opposition played on this? No, not at all. But hailing the
opposition for a policy instrument that is in DPP’s manifesto seems misplacing
things somehow. At the same time, taunting the ruling party because it failed
to frustrate the Bill is at best unsettling for me. This is because in terms of
how a policy instrument (and legislation is a policy instrument) should be
handled, this was a very bad manner of presentation. In public policy there is
nothing more dangerous than introducing a policy devoid of substantial
consensus. By portraying the passing of the Bill as largely the work of those
in the opposition, we effectively deprived the whole thing of this important
ingredient of consensus and ownership. This was not a war; this was simply us
as Malawians taking responsibility and doing that which will make our democracy
tick with newer level of energy.
All the same it
was passed though the bigger hurdles lie ahead, that is to say, the question
remains whether the President will straight away assent to it or withhold it. I
pray he does assent to it because that will symbolize a great stride in the
positive direction in our democracy. By doing that he will also win a lot of
sympathy against those hoping to use the instrument for purely self-interest
and political motive.
From now on, I
will advance on a presumption that our President will assent to this Bill. In
this regard, I want to look at what we should do to ensure timely and
successful implementation of this policy instrument. I’m saying this with an
understanding that ATI goes hand in hand with ancillary instruments and
projects such as a vibrant body to oversee the implementation in terms of
access and use; robust ICT system; comprehensive public document (record)
management; robust adult literacy programmes and a clearly set-out compliance
mechanism.
I can never
discuss all the factors above; my interest is mostly on the last
one—compliance.
Well, literature,
history and daily events in life are full of examples of man’s failure to plan
beyond the point of initial accomplishment. In Julius Caesar, a play by William Shakespeare, conspirators kill
Julius Caesar. They think it’s mission accomplished. But as soon as Caesar
falls, they realise they did not plan for life after the death of Caesar. As a
result, there is no direction on who should give direction—Brutus says one
thing, Cassius another. Their followers are not sure of direction either. What
follows is chaos after victory, something Mark Antony seizes on to inflame the
mob into a rebellion against those who had made Caesar bleed.
Southern Sudan,
a nation that was fighting for independence from the north, fell into chaos
soon after attaining independence when leaders began to fall on each other. Many
times people tend to plan to some point and when eventualities come, they have
nothing to fall back on. This happens even in criminal settings; there are
times when people plan an evil and fail to plan what the setting would be like
if that evil fails.
In The Republic v MacDonald Kumwembe, Pika
Pascal Manondo and Raphael Kasambara, the Judge, Honourable Justice, Dr
Michael Mtambo, when convicting the three said the following:
“The
DPP (Director of Public Prosecutions) further observes that between 12.18 and 12.20, there were 9 SMS’s sent by the 3rd accused to the
2nd accused while he was supposed to be busy in a high level meeting in Salima. Between 12.24 and 12.29, there were 5 SMS’s exchanged between the 2nd and 3rd accused. This totals 14 SMS’s in a space of 11 minutes. The
3rd accused has admitted that there was indeed a flurry of SMS’s but suggested
an explanation in cross examination to his co-accused. On the part of the state, this is
indicative of something that seriously worried the accused, the shooting of Mr
Mphwiyo. That he had survived to tell the story.” (Emphasis mine.)
What the Judge
was saying was that the DPP was suggesting that after the shooter had
administered the shots, they were all in the belief that there was no way the victim
would survive to tell the tale, and that a flurry of SMS’s was indicative of a
rude awakening of realities that Mphwiyo had indeed survived. One would equally
suggest that perhaps they had not planned that there would be another phase to
deal with after the shooting. But reality had presented them with something
else, a task not planned for initially.
In short, in
whatever situation or setting, people ought to plan thoroughly, and this is
more so in the policy process. For your information, I like to discuss Bills in
terms of policy rather than legislation. As far as I am concerned, the two are
different and they focus on two different yet related results.
In public
policy, policy analysts and planners (which include economists, et cetera) sit
down to build a country’s future in terms of what it should achieve in
individual sectors. This is based on various guiding documents such as
strategic plans, a country’s vision or poverty reduction or alleviation
documents. To achieve that goal, they set objectives. To achieve those
objectives they seek an instrument to guide them to operate within the confines
of the Constitution. This is where legislation comes in. When I am dealing with
public policy, I do not consider law first, no, I consider it an instrument to
help me achieve some goal.
Public
administrators consider law an instrument to help run the public sector.
Lawyers often consider it an instrument to punish those who fall outside its
dictates. In public policy, when, through monitoring or evaluation or
monitoring and evaluation you realize a policy instrument is failing, you go
back to the drawing board to improve on it. Law is rigid; to do that you have
to go back to Parliament or it should be declared invalid as per section 5 of
the Constitution. The result is when it fails and you cannot go back to
Parliament you keep quiet as though the law is still carrying its sting.
The greatest
danger in Malawi is that instruments put in place to help run the public sector
tend to be mistaken for the whip, i.e. law for punishment. I should give an
example of the declaration of assets by public officers as provide sections 88A
and 213 of the Constitution—of course, plus the Public Officers (Declaration of
Assets, Liabilities and Business Interest) Act of 2013.
In Public
administration or public policy, declaration of assets is an instrument to help
create open, transparent and accountable civil service (including the people
serving therein). It is not alone; it is complimentary to other equally
important instruments such as access to public information. When the people
were asked to declare their assets, the approach used was taking the law for a
lash, where ‘threats’ form part of the trade. The danger with using ‘threats’
is that when the threat fails to work (because there is a limit to which law
can work), the law becomes exposed. In Malawi, people were asked and many
complied. The language that was coming was purely from ‘use of an instrument as
a whip’—“If you don’t declare, you’ll lose this and that, et cetera.” What
happened next? Big fish were caught in the net and they had ‘an explanation’.
How on earth could we accept their explanation and refuse someone’s explanation
simply because he has no name. That’s the danger when legislation is considered
purely in terms on law. I personally prefer to consider a piece of legislation
such as declaration of public assets and ATI in terms of instruments to run the
public sector. If this was an approach, the DPP government would never feel
apprehensive to pass this Bill into law, and until we work hard to convince
them we do not intend to drive them into the sea, there is a risk of someone
sabotaging the legislation.
What the MPs did
soon after passing the Bill gave me the impression they believe this an
instrument to catch someone, a kind of whip, sniffer dog, hound, an instrument
of punishment. This is where we miss it all. And this is the very reason I
laugh when people celebrate that ATI is in safe hands being under the Malawi
Human Rights Commission. Those who say this have never taken time to analyse
the MHRC and successes they have scored on the ground or where their mandates
end. I do not care whether it has worked elsewhere; a policy will work
depending on context. The moment you devise your instruments with eyes set
elsewhere you risk producing an instrument that will be available in name only.
Malawi has some
of the finest policy and legal instruments on the Continent yet compliance at
the implementation stage remains a challenge. The result is that, working under
an illusion that things work better with more and more policy documents as
though solutions come from the documents per se, we keep churning more and more
policy documents, some almost repeating what others are already addressing on
the ground.
Let me take the example
of section 32 of the Corrupt Practices Act which empowers the Anti-Corruption Bureau
(ACB) to investigate any public officer where there are reasonable grounds to
believe he or she maintains a standard of living that does not correspond with
his or her earning, or has property or resources one cannot properly explain
its past or even present source, et cetera. I personally consider section 32 of
the Act one of the best gifts our Parliament gave this country yet nothing of
this sort happens on the ground—there is little or no compliance on the ground.
This is because when you take a piece of legislation purely as a whip, you
encounter a power (often a politician) on whom the whips never work. With only s.
32 of the Act, we could stop any public thief right in his tracks and prevent a
catastrophe of thievery as the one witnessed at Capitol Hill. Unfortunately,
this has not been the case. So one can see the problem isn’t that we do not
have some of the best legislation; it is that we focus on wrong things at
implementation. I just read an article today where Henry Kachaje was expressing
his surprise that the ACB still exists. The problem isn’t the ACB; it is the
way we have accepted to implement our pieces of legislation.
People must
learn to distinguish using an instrument as a regulatory and biting tool and
using it as a facilitating mechanism. The best is to strike a balance and never
to emphasise one at the expense of the other. This is the same problem that
happened when the Office of the Ombudsman just came in. People who felt the
courts were for the rich thought finally the law was coming to their side. They
soon realized the Ombudsman cannot conduct trials and its judgment is subject
to other review mechanisms.
The question I
would ask the media is: Where would you have the power to demand something, at
MHRC or at some other public office? In Malawi, whenever lawyers say something
people tremble. This is because we have a very sick system where people do not
bother to know the basic law. It’s pathetic that sometimes people give in even
where they are in the right.
In other
countries, even issues of contempt of court are challenged because the court
too must have a limit to which they can impose something; the court is an
independent referee and should not just do things arbitrarily, without
justifiable reasons. Remember courts are human beings first. There can be times
when they can be motivated by something else. If you think I’m telling a lie, read
Attorney General for Hong Kong v Reid
where the country’s Deputy Public Prosecutor and Acting Director of Public
Prosecutions was receiving bribes to spare some criminals from prosecution.
What I am saying
is that a country can have the best policies or legal instruments in form of
Acts of Parliament but still be unable to achieve the goals intended (in terms
of policy) or unable to address or heal the mischief intended (in terms of law
or Act of Parliament). The legislation can still encounter another hurdle in
the name of compliance.
According to Reducing the Risk of Policy Failure:
Challenges for Regulatory Compliance, (OECD 2000: 7), there are three areas
to consider when discussing the question of compliance or non-compliance of a
policy instrument or a piece of legislation. The first area has to so with the
degree to which the target group knows of and comprehends the rules; second,
the degree to which the target group is willing to comply—either because of
economic incentives, positive attitudes arising from a sense of good
citizenship, acceptance of the policy goals, or pressure from enforcement
activities. Lastly, it is the degree to which the target group is able to
comply with the rules.
In short,
organisations and individuals who fought hard to see the ATI Bill pass into Law
now have a duty to ensure that, first, the people understand this legislation.
Going by the various comments by contributors whenever issues ATI are under
discussion, one can tell that our level of understanding of this legislation is
far from perfect. Second, they work on help the people develop values to
increase their level of willingness to comply.
Compliance does
come from a number of factors: enforcement (i.e. lashing one into submission)
and acceptance of the policy goals and a sense of good citizenship. Access to
public information will be a success if the people believe in its good, and if,
on their own, they can strive to be part of the openness revolution; it will
not achieve its goals by beating people into submission. That has failed elsewhere
in our laws though people do not want to learn that the best way to give a
people a piece of legislation is to persuade them on its good, and on the
responsibility they have to fight for a better environment or setting for their
sake and that of the generations to come. Access to public information is not
there because there was Cashgate at Capitol Hill (the spelling is intended
because I do not believe Kamuzu meant ‘capital’).
In order for the
people to know and comprehend the rules, there is a need to go back and inform
them on why we have this legislation in the first place. Many think the
legislation is there to catch those living on thievery; that is just part of
it, but it is there because it will facilitate a form of governance that would
mean little if implemented without this framework—ATI. Put simply, the form of
governance now not only emphasizes improvement in the civil service as a
structure, but also in the way the civil service relates with organisations and
other stakeholders outside it. Because of this horizontal (organization-organization
or organization-citizen) rather than vertical (change or improvements within
the civil service), the need for information has become the centre of the
partnership in order to breach the boundary.
Malawi should
have done this right at the drafting stage, because the best time to do it is
right at the policy drafting stage.
The importance
of ATI in enhancing citizen participation is often associated with the benefits
the citizens derive from the partnership with their government as though government
does not derive any benefit from that relationship at all. It should be pointed
out that government too does benefit substantially from the relationship enhanced
by ATI. For example, government can learn on what the citizens desire. This can
help it in initiating pro-people policies, which would very easily be accepted
by the people. This can also reduce incidence of litigations and embarrassment
on the side of Government. There have been occasions when the Government has
embarked on some project only to get embarrassed when the people disown and
challenge Government for bringing them a raw deal. In a context where
Government is able to listen and discuss with the citizenry on important policy
decisions, incidence of friction can be reduced. Above all, a government that
implements a decision that has the people’s approval wins a vote of confidence
of sorts.
I read an
article ‘Nigerian FOI Law not effectively implemented’ (available at www.freedominfo.org) which I feel has
something we can learn to avoid a repeat of similar mistakes. The article
presents the situation on implementation of ATI in Nigeria. It says the country
had adopted the legislation in 2011, but it is still experiencing problems at
the implementation stage largely due to the entrenched culture of secrecy there
as witnessed by the country’s Official Secrets Act, that the people do not make
request for information because they believe the public officers in whose
custody the information is are not willing to disclose the information, that most
offices still do not have procedures, processes and facilities recommended for
them to.
I expect Malawi
to encounter similar problems and even more because our eyes were mostly on
passing the Bill and not beyond that. I can also foresee the Official Secrets
Act playing the hindering to access. However, I expect some new form of debate
on the relevancy of taking the Official Secrets Act wholesale knowing that the legislation
was passed way back before the First World War and the British were mostly
using it to check against espionage (mostly by Germany agents). That threat not
there today for a developing nation, its level of application ought to be reduced
unless the situation justifies otherwise.
The Bill was
passed, yes, but it is too early for a victory parade in a battle only half-won,
for we have to negotiate for the final legislative rituals and of course, the
biggest of all the hurdles—legislative compliance. Above all, the situation now
requires sobriety from all sides so that we desist from portraying the issue as
though it’s a trap, for ATI is never one and has never been one. Whenever it
traps someone it is because they deliberately worked to flout that which all
agree to keep holy.
According to
sections 73 and 74 of the Constitution, the Bill passed will become law after
the President has assented to it, and it is published in the Gazette. I am sure the President will do
the needful, and I wish him the best of luck. Lastly, my advice to all is:
avoid inflaming tempers; let us, for the love of our country, ensure the
legislation will be for the benefit of the people through enhanced public goods
and service delivery. No one loses when the beneficiaries are the public.
Cases
The
Republic v MacDonald Kumwembe, Pika Pascal Manondo and Raphael Kasambara, Criminal Case No
65 of 2013
Attorney
General of Hong Kong v Reid [1993] UKPC 36, [1994] 1 AC 324
References
Englund, Harri
(Ed) (2002). A Democracy of Chameleons:
Politics and Culture in the New Malawi. Claim (Blantyre) and Kachere
(Zomba).
Luwanda, John,
(2004) ‘Changes in Malawi’s Political Landscape between 1999 and 2004: Nkhope ya Agalatiya’ in Martin Ott, Bodo
Immink, Bhatupe Mhango and Christian Peters-Berries (Editors): The Power of the Vote: Malawi’s 2004
Parliamentary and Presidential Elections, Zomba: Kachere Series.
Muula, Adamson
S. and Chanika, Emmie T. (undated) Malawi’s
Lost Decade: 1994-2004. Publishers and city not indicated.
‘Nigerian FOI
Law not effectively implemented’. available at www.freedominfo.org accessed 20 December
2016.
OECD 2000 Reducing the Risk of Policy Failure: Challenges
for Regulatory Compliance.
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