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| Features |
| Media law in Malawi |
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by
Edge Kanyongolo, 03 May 2006
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06:46:32
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One of my most enduring memories of the transition to democracy in the early 1990s was going into Zomba town and having a wide choice of newspapers to buy. From A4 cyclostyled to properly printed papers, they came, offering a diversity of news and views, ranging from the informative to the simply incredible. A few years later, this diversity was repeated on the airwaves.
For me, the diversification of the media was the most visible sign that the bad old days of one of Africa’s most repressive dictatorships were behind us. In those euphoric moments, it was easy to imagine that things could only get better for media freedom and democracy.
Fast forward to the present. I cannot help the nagging feeling that all did not turn out as we had hoped it would. Yes, our Constitution is one of the very few in Southern Africa which specifically secures media freedom by guaranteeing the press “the right to report and publish, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.”
Publishers, journalists and others in the media can also look to the Constitution for protection of other individual rights that are important in their work. Rights to expression, personal liberty, privacy, opinion and free movement are certainly necessary to enable the media to play their proper role without undue interference. The Constitution guarantees them clearly.
In addition to the Constitution, other media-friendly laws have emerged since 1994. Among the most notable of these are the Communications Act which, on paper, seeks to facilitate the diversification of electronic media and accountability of public broadcasters.
The bad
Why then do I still have the nagging feeling that all did not turn out as we had hoped the post-dictatorship era would be? Over ten years later, why do Malawian journalists still fear that they might be arrested and prosecuted for doing what, in other democracies, is the normal work of the media?
Answer: because in Malawi, democracy is mostly only skin deep. Scratch the surface and it is not uncommon to find that some of the repressive machinery remains intact. Take the law, for instance. Despite the Constitution’s guarantees of human rights, many laws that restrict media freedom have not been abolished.
Among the laws whose restriction of press freedom is undesirable and unnecessary in a democracy are those that impose vague and unreasonable limits on media freedom. An example is the Protected Names, Flags and Emblems Act which makes it a criminal offence for anyone to publish anything which “insults, ridicules or shows disrespect” to the President. This prohibition is so wide that it can potentially be used to punish anyone who publishes anything negative about the President.
Another vague and unreasonably wide limitation on press freedom is a provision of the Penal Code which makes it a crime to publish false news that is “likely to cause fear and alarm to the public or to disturb the public peace.” This virtually makes it a crime for anyone to publish any incorrect information in a wide range of cases.
Yet another is the Censorship and Control of Entertainments Act which makes it a crime for any person to distribute or publish anything that has been declared by the Censorship Board or the Minister to be “undesirable.” The potential for abuse of this law is obvious. This is also the case with a provision of the Penal Code which authorises a Minister to ban any publication which he or she considers to be “contrary to the public interest”.
Other laws unduly restrict the right of the media to access information which they require to be able to perform their functions effectively. One example is the Official Secrets Act which makes it a crime for any public official to disclose “official secrets”, which are so widely defined as to include almost any information held by the government. Another is the Police Act which makes it an offence for any police officer to disclose to any unauthorised person any information concerning an investigation. This is not restricted to information whose disclosure may jeopardise the investigation.
The restrictive laws cited above are only examples. In the thicket of the legal jungle, many more of such laws lie in ambush, waiting patiently to spring on the unsuspecting journalist.
The ugly
It is bad enough that many media-unfriendly laws remain on the books. What is worse and ugly is that there are some people who hold power who will not hesitate to use those laws to serve their own interests. No wonder then that although these laws have been identified numerous times in the past twelve years by human rights and media groups, no government has ever taken serious steps to repeal or amend them.
Ironically, existing laws that are meant to improve the media environment are not always enforced with equal enthusiasm. Take the Communications Act, for example. It clearly says that the MBC should function without political bias and provide balanced coverage of elections. Can anyone say, with a straight face, that MBC has fulfilled this clear legal obligation? Yet, what action has been taken against the organisation by enforcers of the law? Zero.
The problem then is not simply the presence of bad laws or the absence of good ones. It is also whether those in power genuinely believe in the democratic process and realise the key role that a free media plays in it.
The way forward
Am I arguing that the media should operate without any legal limits at all? Of course not. Very few rights are absolute. However, legal limits to freedom of the media must be reasonable and consistent with human rights protections that are necessary for the preservation of an open and democratic society.
In any case, the primary tool for ensuring that media freedom is not abused must be self-regulation. Here, media bodies must admit that they have not always succeeded. Cases of excessive intrusions into the privacy of individuals, complete fabrications, hate speech, unnecessary references to people’s races, acceptance of bribes and other unethical journalistic behaviour by the media do not appear to have been subjected to any effective self-regulation by media bodies.
The democratic process in Malawi needs a free media which in turn needs a friendly legal environment. As a minimum, this requires three things: the repeal and amendment of laws that unduly restrict the work of the media, the enactment of legislation that promotes the work of the media such as legislation to facilitate access to information and the operation of an effective mechanism of self-regulation. |
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