The recent arrest and release of Platform for Investigative Journalism (PIJ) Managing Director Vitus Gregory Gondwe presents an opportunity to ask whether freedom of expression, access to information and whistle-blowing are protected rights in Malawi. It leaves questions as to whether legal protection on these rights for journalists is available and enforceable. Do we just accept apologies from high profile persons in state offices and go on with business as usual after they humiliate, harass and bully journalists?

Vitus Gregory Gondwe was arrested and detained on 5 April, 2022 for refusing to disclose his source for the story he published on PIJ about Attorney General Thabo Chakaka Nyirenda.[1] The story alleged that the Inspector General in Malawi had paid for a contract that was being investigated.  Inspector-General George Kainja paid K1.3 billion (around R23.1 million) for a contract belonging to businessman Zuneth Sattar, despite it being under a restriction order from the country’s Anti-Corruption Bureau (ACB).

It has been reported that Gondwe was arrested by the Malawi Police and put him in arbitrary detention at the behest of President Lazarus Chakwera and Attorney General Thabo Chakaka Nyirenda. [2] The police confiscated Godwe’s computers and phones.

Gondwe has since been released after Attorney General Thabo Chakaka Nyirenda apologized to PIJ over the arrest. MISA Malawi Chairperson Theresa Ndanga confirmed this development and was reported to have held a meeting with the Attorney General who committed to repealing archaic laws such as sedition laws, sections of the Protected Glags Emblems and Names Act that impede media freedom, freedom of expression and violate the right to privacy.[3] These laws date back to colonial times and they promote government secrecy and the withholding of public information. These archaic laws punish government critics and are inconsistent with the Constitution of Malawi. There are also other pieces of legislation passed after the Malawi Constitution was adopted that criminalise outright disclosure of information to any member of the public and in some cases, criminalise disclosure without consent from some authority even if it is in good faith.[4]

Sections 35, 36 and 37 of the Constitution of Malawi provides for access to information by stating that”

“35. Freedom of expression

Every person shall have the right to freedom of expression.

36. Freedom of the press

The press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

37. Access to information

Every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his or her rights.”[5]

The country’s Access to Information Act also provides protection to whistleblowers for “disclosure of information which the person obtained in confidence in the course of that activity if the disclosure is of public interest”.[6]

Moreover, Malawi is party to the African Charter on Human and Peoples’ Rights (ACHPR) which protects the right to access information in Article 9.[7] The African Commission on Human and Peoples’ Rights formulated the Model Law on Access to Information for Africa[8] (the Model Law) as a guide for the development, adoption, or review of access to information legislation by African States. Even though the Model Law is not a legally binding document, Malawi as a State Party is expected to adapt its laws and structures of its legal system to “ensure that in the process of reviewing and enforcing national legislation on access to information, the principles and objectives of the Model Law are observed to the utmost.”[9] And one of the key principles is that “no one is subject to any sanction for releasing information in good faith”.

The Campaign for Free Expression calls upon the Government of the Republic of Malawi to promote, protect and uphold freedom of expression by enabling EVERYONE to exercise this right to the full.

The Campaign for Free Expression (CFE) is a non-profit organisation dedicated to protecting and expanding the right to free expression for ALL and enabling EVERYONE to exercise this right to the full, whether it by speaking out, by protesting, by revealing information, by blowing the whistle on wrong-doing, by arguing, debating, writing, painting, composing or just by shouting out an opinion.

info@freeexpression.org.za

[1] https://investigativeplatform-mw.org/2022/03/30/government-pays-sattar-for-restricted-contract-under-acb-probe/

[2] https://www.news24.com/news24/africa/news/malawi-journalist-arrested-for-exposing-top-cops-alleged-shady-deal-20220406

[3] https://www.nyasatimes.com/attorney-general-apologises-over-arrest-of-journalist-gregory-gondwe/

[4] See section 143 of the Police Act (12 of 2010).

[5] Constitution of republic of Malawi of 2017 sec, 35,36 & 37. Found on https://www.constituteproject.org/constitution/Malawi_2017.pdf?lang=en

[6] Malawi Access to Information Act 2017 Found on https://www.rti-rating.org/wp-content/uploads/2018/09/Malawi-Access-to-Information-Act.Feb17.pdf

[7] Malawi ratified the ACHPR on 17 November 1989

[8] Published in 2013.

[9] P Tlakula “Preface” African Commission on Human and Peoples’ Rights: Model Law on Access to Information for Africa (2013) 12.