Mr. Speaker Sir, it is an honour and privilege for me this morning/afternoon to present to the House a Report that the Parliamentary Committees on the Media, Information and Communications and Legal Affairs came up with after analysing Bill No. 1 of 2016: Access to Information. Throughout this Report your Committees intend to inform the House about the general observations which they made after analysing and reviewing the Bill. The Committees have further made recommendations, which upon being adopted by the House, shall stand as Notice of Amendments to Bill No. 1 of 2016: Access to Information.
Mr. Speaker Sir, On July 15th 2016, the Honourable Minister of Information, Communications Technology and Civic Education presented Bill No. 1 of 2016: Access to Information. Subsequently, the House referred the Bill to the Parliamentary Committees on Media, Information and Communications and Legal Affairs, for further scrutiny. In referring the Bill to the Committees, the expectation of the House was that the Committees would come up with a detailed Report on their findings and recommendations on the Bill and report back to the House. It was in fulfilment of the mandate of the House that the Committees scheduled stakeholder consultative meetings in Lilongwe, at Parliament Building, between October 30th and November 3rd, 2016 in order to solicit views of various key stakeholders on the Bill.
As it is the practice, Mr. Speaker Sir, it is imperative that I give a synopsis of what Bill No. 1 of 2016: Access to Information intends to achieve, before I present the specific findings and recommendations of the Committee.
The Bill, Mr. Speaker Sir, seeks to achieve the following objectives:-
a) Make provision for access to information that is held by information holders;
b) Ensure that public bodies disclose information that they hold and provide information in line with the constitutional principles of public trust and good governance;
c) Provide for a framework to facilitate access to information held by information holders in compliance with any right protected by the Constitution and any other law;
d) Promote routine and systematic information disclosure by information holders based on constitutional principles of accountability and transparency;
e) Provide for the protection of persons who release information of public interest in good faith; and
f) Facilitate civic education on the right to access information under the Act.
Mr. Speaker Sir, as part of their analysis and review of the Bill, your Committees:-
a) Studied and considered in detail the Constitution of Malaŵi, several pieces of legislation from both within and without Malaŵi and a number of key international human rights instruments. These included the following;
i) Human Rights Commission Act Cap 3:08
ii) National Archives Act Cap 28:01
iii) Official Secrets Act Cap 14:01
iv) Public Officers (Declaration of Assets, Liabilities and Business Interests) Act Cap 1:04
v) Taxation Act Cap 41:01
vi) Model Access to information law (African Commission on Human and Peoples’ Rights)
vii) Access to Information Act (of Kenya)
viii) Promotion of Access to Information Act 2 of 2000 (of South Africa)
ix) African Charter on Human and Peoples’ Rights
x) International Covenant on Civil and Political Rights
b) Invited various stakeholders to provide feedback on the Bill especially on what they thought would be the best way of improving the Bill. These stakeholders were:-
i) Media Institute for Southern Africa – Malawi Chapter
ii) Malawi Law Society
iii) Public Affairs Committee
iv) Human Rights Commission
v) Law Commission
vi) Ministry of Information and Communications Technology
Mr. Speaker Sir, access to information is a right that is protected under section 37 of our Constitution. It has been said that a good and robust access to information law can help in improving accountability, transparency, the fight against corruption and participatory democracy. Mr. Speaker Sir, as this august House will well know, these are some of the values and principles on which our Constitution is founded. Passing an Access to Information Bill, therefore, will be a significant step in realizing the aspirations of our Constitution and by extension our people. More importantly, as per the Malawi Government’s own Access to information Policy, an Access to Information law is recognized as a vital tool for fostering other social benefits such as access to education and health care, gender equality, children’s rights, potable water, clean environment, [and] sustainable development.’
Mr. Speaker Sir, access to information is also a right that is protected under international human rights law. Your Committees have thus drawn inspiration and guidance from standards set by key international human rights bodies such as the United Nations’ Human Rights Committee and the African Commission on Human and Peoples’ Rights. By way of example, Mr. Speaker Sir, the African Commission on Human and Peoples’ Rights has adopted and published a model law on Access to Information which is designed to act as a guide whenever member states want to enact such a law. Your Committees consulted this law as well as its key principles.
Mr. Speaker Sir, before I present the summary of findings by the Committees on the Bill, let me correct a popular although erroneous belief that the Access to Information Bill is just for the benefit of members of the media. Nothing could be further from the truth. This Bill is meant to benefit all of the citizens of this country and not just a single sector. As I have already indicated, access to information is a human right and human rights are meant to be enjoyed by all human beings.
Mr. Speaker Sir, with your permission, I will now present to the House a summary of the findings of the Committees on the Bill.
A) Oversight institution
Mr. Speaker Sir, it was observed by the Committees that for an access to information law to be effective and robust, there was a need for an independent public institution to be responsible for its enforcement. Mr. Speaker Sir, it bears noting that one of the international best practices in enacting an access to information law is to have an effective enforcement mechanism for it.
Mr. Speaker Sir, the Committees observed that the ideal situation would have been for the law to provide for a new and independent oversight institution. The Committees were, however, alive to the fact that lack of resources would make such a scenario untenable.
Mr. Speaker Sir, to address the legitimate concern of lack resources, the Committees broached the possibility of tasking an already existing public institution with this oversight mandate. The Committees considered several candidates for this task including the Human Rights Commission, the Ombudsman and the Office of the Director of Public Officers’ Declarations. The Committees observed that the Ombudsman and the Office of the Director of Public Officers’ Declarations were set up under the Constitution and the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act respectively to carry out specific mandates. These mandates, Mr. Speaker Sir, in the view of the Committees, would not seamlessly align with the provision of the oversight function under the Bill without a need for amending the relevant constitutional and statutory provisions. The Committees accordingly settled for the Human Rights Commission to provide the oversight function for the new law. Mr. Speaker Sir, the Committees came to this conclusion after satisfying themselves that the mandate that the Constitution gives to the Commission would not conflict with the oversight function and would thus not necessitate a constitutional amendment. Mr. Speaker Sir, there will be a need, however, for the government and this House to allocate more resources to the Commission so as to enable it develop the necessary capacity to carry out this added responsibility.
Therefore, Mr. Speaker Sir, the Committees recommend that new provisions be introduced into the Bill to provide for an oversight institution for the new law in the mould of the Human Rights Commission. The insertion of these new provisions will also necessitate amendments to the part of the Bill dealing with review of decisions of information holders denying or refusing to grant access to information. These amendments will further result in the renumbering of the clauses of the Bill.
B) Relationship between the Bill and other statutes
Mr. Speaker Sir, the Committees observed that although Malaŵi adopted a liberal and progressive Constitution in 1994, the bulk of its statutes are yet to be reviewed. This means that most of these statutes do not reflect both the letter and the spirit of the new Constitution. Mr. Speaker Sir, the Committees noted that if the relationship between the Bill and other laws was not clearly defined, there could be a danger that some statutes that are secretive in their orientation could end thwarting the objectives of the Bill.
Mr. Speaker Sir, the Committees thus recommend that a new clause should be inserted after clause 5 in the Bill to read as follows:-
(1) Save as provided for under this Act, this Act applies to the exclusion of any provision of other legislation that-
(a) prohibits or restricts the disclosure of information by an information holder; and
(b) is materially inconsistent with an objective, or a specific provision, of this Act.
(2) Nothing in this Act shall be construed as limiting or otherwise restricting any other legislative requirement for an information holder to disclose information.
C) Protection of whistle-blowers
Mr. Speaker Sir, the Committees observed that even though clause 4 (e) of the Bill has the protection of whistle-blowers as one of its objectives, there was no substantive provision in the Bill which provides for this protection. The Committees noted that this was a serious omission. The Committees thus recommend that there be a clause introduced detailing the manner in which whistle-blowers shall be protected under the Bill.
Mr. Speaker Sir, your Committees are, however, also aware that under the guise of blowing the whistle, some people might wish to simply act maliciously by giving out false information and thereby injuring others. To address this concern, Mr. Speaker Sir, the Committees recommend the introduction of a new clause in the Bill creating an offence for those who maliciously provide false information to injure others.
D) Clause 2 – Definitions
Mr. Speaker Sir, the Committees observed that the definition of ‘Court’ under the Bill has been restricted to the High Court of Malaŵi. The Committees noted that the High Court is inaccessible to most Malawians in terms of physical location, procedures and costs. It was observed by the Committees that there would be nothing irregular with the definition of Court being expanded to include courts of resident magistrates. These courts, the Committees noted, are staffed by professional magistrates who handle relatively complex matters.
Mr. Speaker Sir, the Committees further observed that the definition of ‘personal information’ in clause 2 of the Bill includes information relating to the ‘criminal history’ of an individual. The Committees noted that considering that criminal courts are accessible by the public, it would serve no practical purpose to protect such kind of information from disclosure. The Committees were further of the view that there is no legitimate public interest objective in protecting the criminal history of an individual. On the contrary, disclosure of such information might in certain cases serve a legitimate public interest objective such as assisting the electorate in assessing the fitness and propriety of a candidate for public office.
Mr. Speaker Sir, the Committees, therefore, recommend that clause 2, on definition of ‘Court’, be amended so as to include in the definition ‘a court of a resident magistrate.’ The Committees would further recommend that clause 2 of the Bill be amended by deleting the word ‘criminal’ from the definition of ‘personal information’. Mr. Speaker Sir, to accommodate the inclusion of the oversight institution in the Bill, the Committees would further recommend that a new definition be inserted in clause 2 to define the Commission as follows:-
“Commission” means the Human Rights Commission established under Chapter XI of the Constitution”.
E) Clause 3- Application
Mr. Speaker Sir, The Committees noted that clause 3 excludes the application of the Bill to cabinet records and those of its committees, court records prior to the conclusion of a matter, information excluded from publication under the Official Secrets Act and personal information. The Committees observed that as a matter of international practice, cabinet records are usually classified documents until they are otherwise declassified. It was noted that weighty and sensitive matters of state are discussed at this level of government and that granting public access to cabinet records would potentially compromise legitimate state interests.
Mr. Speaker Sir, the Committees further observed that the Official Secrets Act is an important national security legislation which deals with, among other matters, espionage against our country. The Committees observed, however, that the information which is protected by the Official Secrets Act is information that would in any event be exempted from disclosure on the basis of national security and defence exemption under clause 24 of the Bill. It was the view of the Committees, therefore, that clause 3 (2) (c) should be deleted from the Bill as it serves no practical purpose.
Mr. Speaker Sir, the Committees further noted that clause 3 (2) (d) which totally excludes personal information from the application of the Bill is at odds with clause 23 of the Bill which suggests that personal information shall be accessible on request save in circumstances where its disclosure would be unreasonable. The Committees were of the view that there might be times when legitimate public interests might require people to have access to personal information of others. It was noted by the Committees that the Bill has sufficient safeguards to ensure that such information is not disclosed unreasonably. One such safeguard, Mr. Speaker Sir, is the requirement to notify a party whose personal information is subject of an access application so as to given them an opportunity to make objections to the disclosure of the information. It was thus the view of Committees that the Bill should not totally exclude the application of the new law to personal information.
Mr. Speaker Sir, the Committees, therefore, recommend that the exclusion of cabinet records from the application of the law be maintained. The Committees further recommend that clause 3 of the Bill be amended by deleting sub clauses 2 (c) and (d).
F) Clause 11 – Annual Reports
Mr. Speaker Sir, the Committees noted that clause 11 required information holders to submit reports to the Minister on their level of compliance with the Bill. The Committees were of the view that since they had recommended that the enforcement of the Bill be entrusted to the Human Rights Commission, it would only be appropriate that the reporting requirement be moved from the Minister to the Commission. The Committees thus recommend that clause 11 be redrafted accordingly.
G) Clause 14 (2) – Third party notification
Mr. Speaker Sir, the Committees noted that clause 14 of the Bill requires third parties to be notified where an application for access to information relates to their confidential or commercial [interests] information. It was observed, however, that the clause does not provide for the period of time within which the third party should give its response to the application. The Committees thus recommend that clause 14 (2) of the Bill be amended by providing for a period of ten working days within which a response from the third party should be received.
H) Clause 18 – Fees
Mr. Speaker Sir, the Committees noted that clause 18 of the Bill requires applicants for access to information to pay reasonable fees where the information to be accessed needs to be duplicated, transcribed or translated. The Committees observed that under international human rights law, it is permitted to levy reasonable fees to recover expenses incurred in making the information accessible to the requester. The Committees further observed that to create room for information holders to waive the requirement for fees would potentially lead to abuse by those requesting access to information. The Committees noted, however, that the way clause 18 was drafted created the misleading impression that a mere request for access for information would attract fees. The truth of the matter, Mr. Speaker Sir, is that fees will only be payable where the information to be accessed requires to be transcribed, translated or otherwise reproduced.
Mr. Speaker Sir, the Committees thus recommend that the clause be redrafted as follows:-
(1) Subject to subsection (2), a person shall not pay any fees on lodging an application for request of information.
(2) The fees payable by an applicant under this Act, shall be limited to reasonable, standard charges for document duplication, translation or transcription where necessary.
(3) The Minister shall, on recommendation of the Commission, prescribe a uniform scale of fees applicable for processing requests for information.
I) Clause 36 – Decision making on internal review not to be delegated
Mr. Speaker Sir, the Committees noted that under clause 36 of the Bill, the power of the head of the information holder to review decisions of an information officer grating or refusing access was nondelegable. The Committees observed, however, that under clause 6 (5) of the Bill, the head of an information holder would be the default information officer in the absence of an information officer. In such cases, therefore, clause 36 would require that the head of the information holder reviews his own decision. The Committees were of the view that this would be against the rules of natural justice.
Mr. Speaker Sir, the Committees, therefore, recommend that a proviso be added to clause 36 as follows:-
Provided that where the head of the information holder acts as an information officer, it shall not necessary for the applicant or third party to seek a review of the decision before him, before approaching the Commission or Court for review.
J) Clauses 39, 40 and 41 – offences and penalties
Mr. Speaker Sir, the Committees noted that clause 39 of the Bill creates offences for those who act to prevent the disclosure of information by wilfully concealing, destroying, mutilating, falsifying a document or record. Clause 40 on the other hand also creates an offence in respect of wrongful denial of disclosure of information through negligence or recklessness. The offence in clause 39 attracts a fine of K250, 000 and a term of imprisonment not exceeding six months. The offence in clause 40 on the other hand attracts a fine of K250, 000. Clause 41 on the other creates an offence in respect of misuse of disclosed information. The penalty for this offence is a fine of K2, 000, 000 and imprisonment for two years.
Mr. Speaker Sir, the Committees observed that the conduct targeted in clauses 39 and 40 is rather serious as it defeats the very objectives of the Bill. It was noted that the penalties provided for in clauses 39 and 40 were rather inadequate and did not convey the outrage that the targeted conduct deserved.
Mr. Speaker Sir, the Committees, therefore, recommend that the penalty in clause 39 of the Bill be revised from what is currently provided to a fine of K3, 000, 000 and imprisonment for three years. The Committees further recommend that the penalty in clause 40 be increased from the current K250, 000 to K3, 000, 000. The Committees thus recommend that clauses 39 and 40 be recommended accordingly.
K) Clause 42 (3) – Regulations
Mr. Speaker Sir, The Committees noted that this clause provides that notwithstanding section 21 (e) of the General Interpretation Act, the regulations made under clause 42 of the Bill may prescribe penalties of up to two million Kwacha (K2, 000, 000) and imprisonment for a maximum term of two years. The Committees observed that with the recommendations made above as regards the enhancing of the penalties provided under clauses 39 and 40 of the Bill, there is a need for this clause to be aligned with those amendments. The Committees thus recommends that clause 42 (3) be amended by substituting the figure of K2, 000, 000 with K3, 000, 000 and substituting the word ‘two’ with the word ‘three.’
L) Correction, typos and editorial issues
Mr. Speaker Sir, the Committees also noted that the Bill has a number of typographical errors and other language inconsistencies. The Committee, therefore, recommends the following amendments:-
a.) Clause 8 has got two sub-clauses and yet the figure ‘(1)’ is missing after the figure ‘8.’ The Committees recommend that clause 8 be amended by inserting the figure ‘(1)’ after the figure 8 in the first line of the clause.
b.) The Committees noted that the words ‘privileges’ and ‘or’ in the second line of clause 9 (2) (a) (iii) have been fused. The Committees thus recommend that a space be entered between the words ‘privileges’ and ‘or’ in the second line of clause 9 (2) (a) (iii) of the Bill. The Committees further observed that the words ‘or for’ which follow the word ‘to’ in the third line of clause 9 (2) (a) (iii) of the Bill do not fit well with the rest of the sentence and results in poor clarity in the sub-clause. The Committees thus recommend that the words ‘or for’ after the word ‘to’ in the third line of clause 9 (2) (a) (iii) of the Bill be deleted.
c.) The Committees observed that the second line of clause 12 (2) of the Bill has the words ‘in to’ after the word ‘application’ instead of the single word ‘into’. The Committees thus recommend that clause 12 (2) of the bill be amended by replacing the words ‘in to’ with the word ‘into’ after the word ‘application’ in the second line of clause 12 (2) of the Bill.
d.) Clause 13 has got three sub-clauses and yet the figure ‘(1)’ is missing after the figure ‘13.’ The Committees recommend that clause 13 be amended by inserting the figure ‘(1)’ after the figure 13 in the first line of the clause. The Committees further observed that the word ‘information’ before the word ‘officer’ in the first and second lines of clause 13 has been repeated. The Committees thus recommend that the repeated word ‘information’ be deleted from the second line of clause 13 of the Bill.
e.) The Committees further noted that in departing from the style adopted throughout the Bill, the word ‘information’ in the first line of clause 16 of the Bill begins with a capital ‘I’. To achieve consistency, the Committees recommend that the capital ‘I’ in the word ‘information’ in the first line of clause 16 of the Bill be replaced with a lower case ‘I’.
f.) The Committees further observed that the words ‘request is received’ which follow the word ‘transferred’ in the second line of clause 17 (2) (a) of the Bill do not fit well with the rest of the sentence and results in poor clarity in the sub-clause. The Committees thus recommend that the words ‘request is received’ after the word ‘transferred’ in the second line of clause 17 (2) (a) of the Bill be deleted.
g.) The Committees further observed that some words appear to have been omitted from the second line of clause 29 (b) of the Bill. The Committees thus recommend that the second line of clause 29 (b) be amended by deleting the article ‘a’ after the word ‘prejudice’ and replacing it with the article ‘the’ and by inserting the words ‘interests of the information’ after the word ‘legitimate’ and before the word ‘holder’. The amended clause 29 (b) would thus read as follows:-
Information about the information holder or third party that would substantially prejudice the legitimate interests of the information holder or third party.’
h.) The Committees further noted that the Bill uses the word ‘state’ instead of the word ‘states’ in the third line of clause 30 of the Bill. The Committees thus recommend that clause 30 of the Bill be amended by substituting the word ‘state’ with the word ‘states’ in the third line of clause 30 of the Bill.
Let me conclude, Mr. Speaker Sir, by expressing my sincere and profound appreciation to you, Sir, the Right Honourable Speaker of the Malaŵi National Assembly, for the unwavering support that you give to all parliamentary committees, and in particular, the Media, Information and Communications and the Legal Affairs Committees. In the same vein, allow me to express gratitude to the House for entrusting our Committees with the responsibility to review and analyse Bill No. 1 of 2016: Access to Information. Let me also express the sincere gratitude of the Committees to the Office of the Clerk of Parliament and the secretariat for the technical, procedural and logistical support rendered to the Committees during their meetings.
I would also like to thank all stakeholders that attended the Consultative meetings for their input and explanations on the issues that were raised by the Committees.
With these few remarks, Mr. Speaker Sir, I hereby beg to move that the Report be adopted by the House.
Mr. Speaker Sir, I beg to move.
Samuel Kawale MP & Chairperson: Parliamentary Committee on the Media, Information and Communications
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