National Overview Malawi 2011 - Media Institute of Southern Africa

MalawiTimes, the publishers Blantyre NewspapersLimited (BNL) had sought relief fromthe High Court to continue publishing.When Government introduced thesenew laws, legal relief was successfullyobtained pending judicial reviews.The second piece of legislation is theamendment to Section 46 of the PenalCode. The amendment empowers a politicalappointee of the President of theRepublic to censor media content in thename of ‘public interest’. The amendedsection reads:“If the Minister has reasonablegrounds to believe that the publicationor importation of any publication wouldbe contrary to the public interest, hemay, by order published in the Gazette,prohibit the publication or importationof such publication.”As submitted by many media freedomadvocates this amended section iscontrary to Section 36 of the Constitution,which stipulates that “the pressshall have the right to report and publishfreely, within Malawi and abroad, and tobe accorded the fullest possible facilitiesfor access to public information.”Forced by pressure from the internationalcommunity, which has withheldfinancial support to Malawi, and domesticcivil society organisations, which havethreatened further mass demonstrationsagainst it, the Malawi government hasreferred these two pieces of legislationto the Law Commission. While the developmentis welcome as it provides anopportunity to media freedom advocatesto input into the law reform process, itdoes not guarantee a favourable output.Institutional biases are likely to turn upsubstantively similar versions of legislationor as is often the case, governmentwill hold the proposals in a perpetualconsultation processes until memoriesfade. Hence, it is important to note thatall the laws that have been referred tothe Law Commission are still active andcan be used by the state pending the reviewand amendment processes.The common institutional biases arethree:1) The mandate of the Law Commissionends with a report containing recommendations;stakeholders haveto lobby Members of Parliament fortheir preferences to prevail.2) Cabinet, comprising DPP loyalists,performs the functions of processingand approving all governmentBills to be tabled in Parliament. Aswas the case with the CommunicationsAct (1998), Cabinet has thepropensity to ignore stakeholderrecommendations and insert its ownviews that are consistent with partisaninterests. Cabinet has previouslyignored recommendations madein the 1990s by the Civil LibertiesCommittee and Article 19, througha submission to the Law Commissionon how Section 46 of the Penal Codeshould be reviewed.3) Parliament, currently dominated bya DPP majority, has to ‘debate’ andpass Bills. What guarantee is therethat pro-democracy recommenda-68So This is Democracy • 2011