Freedom of expression is protected under Malawi's 1995 constitution. However, since 2009 the media has been under attack by the government, with President Bingu wa Mutharika stating last year that he would close down newspapers that tarnished his government's image. The banning of the Weekly Times showed he's serious. Now, with the amendment of Section 46 of the Penal Code, such actions have the power of law behind them. By GREGORY GONDWE.

When Malawi gained independence from Britain in 1964, it was hoped its media industry would flourish. People assumed that, since the country’s first president, Hastings Kamuzu Banda, had spent much of his life in the US and Britain with vibrant media, he would understand what media freedom entailed. But when Banda’s undemocratic and despotic tendencies surfaced, he allowed no media freedom. Journalists lived in fear and constantly had to be very conscious of what they were writing.

The government maintained control of the press with The Prohibited Publications Act, which allowed it to ban any publication that it deemed false or critical of Malawi. “Foreign media had to think twice before venturing into the country,” says historian Desmond Dudwa Phiri. Banda’s desire to suppress the nurturing of the intellect in journalism made him proscribe all institutions from teaching any media-related studies. Malawians who had the opportunity to study media-related courses did so outside the country and, if they chose to return at all, ventured into other fields like teaching or public relations.

Between 1964 and 1993 there was only one daily and one weekly newspaper, both of which sang the praises and successes of the regime. The president never wanted Malawians to know there was another medium called television. It was only in 1998 that television came to Malawi with the launching of the state broadcaster, Malawi Television.

In 1993, after the people decided in a referendum they wanted Malawi to take a multi-party democratic path, many newspapers sprouted throughout the country. The main challenge was lack of proper journalism training. Anyone who had resources and could stitch a few English words together could start a newspaper. Government, with the aid of donor countries, established the Malawi Institute of Journalism before adding a media faculty at the University of Malawi. With the change of the Malawi Constitution in 1995, there was a grudging acceptance that diverse ideas could be published.

Now President Bingu wa Mutharika, who is serving his second and last term, wants to revitalise the repressive media laws of the past. There have been strange and disturbing events leading to the amendment of Section 46 of the Penal Code, which have earned the Mutharika regime the wrath of the media and the international community.

The first signs that Malawi’s media freedom could be under threat started showing late in 2009. Whenever the president returned from international trips he began holding press conferences attended by hundreds of party zealots. These supporters jeered at journalists every time they asked questions deemed to be probing. While the media was not entirely certain of the meaning of these events, there was a nasty surprise in store for them that would confirm their fears.

In March 2009, Mutharika’s government released a circular to ministries and government departments ordering them to stop subscribing to and advertising in all three publications of the privately owned Nation Publications Limited. These were the daily The Nation and the weeklies Weekend Nation and Nation on Sunday, all of which were critical of the government.

Even when the Malawi chapter of the Media Institute of Southern Africa (Misa-Malawi) asked the authorities to lift the ban, which it described as “a huge blow to media freedom, diversity and development in Malawi”, the government did not relent. What followed was that on 26 August 2010, Mutharika warned, “I will close down newspapers that lie and tarnish my government's image”. Mutharika was angered by the weekly Malawi News which had quoted a food security forecast by the Southern African Development Community that said more than a million Malawians faced starvation because of poor rains in several districts.

This was one of Mutharika's first public attacks on privately owned newspapers. “If I close you down, you'll rush to donors to say Bingu is suppressing the press,” he said. “I will close down any newspaper that publishes lies. You can go to the donors and I'll ask them whether in their countries they tolerate lies,” he continued. True to his words, on 29 October 2010, the government banned the Weekend Times, with immediate effect. The weekly evening tabloid is published by the 100-year-old newspaper group BNL, and famous for exposing fraud and sex scandals involving public figures.

The banning order came from the National Archives, and quoted the 1958 Printed Publications Act, which demands that all newspapers be registered and deposit a copy of each of their publications with the National Archives. The ban came after the newspaper had published a story about Mutharika’s ally, Zimbabwean President Robert Mugabe. It reported about Zimbabwean first lady Grace Mugabe’s alleged trysts with that country’s central bank governor. BNL, however, applied for and received a stay order from the courts that restrained the government from implementing its decision.

Despite the increasingly fraught atmosphere, it was still like a bolt from the blue when, on 19 November 2010, Malawi’s 193-member unicameral parliament passed Section 46 Penal Code (Amendment) Bill 2009. This amendment allows the government to arbitrarily stifle local publications without any judicial oversight.

The old Section 46 read: “If the Minister is of the opinion that the importation of (a) any publication, (b) all publications published by any person would be contrary to the public interest, he may in his absolute discretion, by order, prohibit the importation of such publication or publications and in the case of a periodical publication may by the same or subsequent order prohibit the importation of any past or future issues thereof.”

After the amendment, the section now reads: “If the Minister has reasonable grounds to believe that the publication or importation of any publication would be contrary to the public interest, he may, by order published in the gazette prohibit the publication or importation of such publications”. In the old act the operative word was importation, while the amended bill has removed the Minister’s “absolute discretion” and replaced it with “reasonable grounds”.
Media managers who met government officials a few weeks ago over the matter are against the amendment, observing that in essence the amended section has expanded the minister’s powers to ban not just the importation of certain materials, but local publications as well. They were also at a loss as to what those “reasonable grounds” could be. The fact that the media were never consulted before the law was enacted and that dialogue is only taking place after the fact renders the whole process questionable.

By not providing a minimum threshold for what constitutes “contrary to public interest” and “reasonable grounds”, the amendment gives the information minister absolute discretion to ban any local publication at whim, including newspapers, cinematic films and videotapes, magazines, fabrics bearing certain designs, CDs and books.

This law, in addition to giving the government the power to ban local publications, also changes the standards for banning foreign publications, a power the government has had for a long time and used often in the past.  Under the Malawi Penal Code, which was revised in 2003, the government had absolute discretion to ban the importation of any foreign publication that, in “the opinion of the (Information) Minister”, was deemed “contrary to public interest”. The Malawi government has in the past used this law to ban the importation of more than 200 films and video tapes, three magazines, fabrics made by certain companies, 48 gramophone records, and more than  a thousand books and other publications under the Prohibited Publications Order.

Under the new law, the information minister may ban a foreign publication from being imported if he has a “reasonable ground to believe” that the publication is contrary to the public interest. “This is a higher standard than the 'Minister's opinion' test, which was subjective in nature. However, the fact that it is not defined may leave it open to abuse,” said Tikhala Chibwana, BNL general manager. 

There has been an international backlash after Mutharika assented to the bill on 26 January 2011. The New York-based Committee to Protect Journalists and Reporters Without Borders both said the law was not in the public interest. In a press statement on 2 February, CPJ described the move as aimed at “institutionalising political censorship of the press”.

Eight traditional donors to the country – France, Germany, Iceland, Ireland, Japan, Norway, the UK and the US – have demanded that government soften its position on the law. “We share the concerns voiced by many Malawians about certain negative trends in the country,” wrote the eight heads of mission to Malawi in a joint statement issued on 10 February.

The statement came after the German government announced it had frozen aid money to the Malawian government because of concerns regarding the endorsing of the repressive media laws and human rights abuses. Germany's federal development minister, Dirk Niebel, announced the aid freeze in a letter to the Malawian minister of finance, Ken Kandodo.

For his part, minister of information and civic education Symon Vuwa Kaunda, who will be a beneficiary of the law, defended the government, saying the amendment of the law was fair – unlike the previous version. “Government wishes to emphasise that, unlike the previous section where the minister had absolute discretion to ban publication, the amended section only requires the minister to provide reasonable ground for any decision,” said Kaunda.
Malawian journalists have also taken a stand through their organisations, the Media Council of Malawi and Misa-Malawi. They argued that the country’s media freedom is guaranteed by the constitution where it states the press shall have the right to report and publish freely, within Malawi and abroad, and be accorded the fullest possible facilities for access to public information.

“Any act of government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid. Our contention is that Section 46 as amended is an unjust law which seeks not only to limit press freedom but to actually remove it,” the joint statement, released on 16 February, reads. It argues further this law is inconsistent with the supreme law of the land and should, therefore, be repealed.

The two media bodies also issued a statement urging the government to lift the advertising ban on Nation Publications, which has not received any meaningful advertisements from government for a year now. In addition, they also called on the government to lift the ban on the Weekend Times. “We urge government to lift the ban on the Weekend Times, which was banned using the National Archives registration law,” reads the declaration, signed by MCM chairman Patrick Semphere and the body’s executive director Penelope Kakhobwe , as well as acting Misa-Malawi chairman Anthony Kasunda and the institution’s executive director, Aubrey Chikungwa.

The four also urged government to repeal Section 46 of the Penal Code and to desist from enacting repressive laws. In addition, they called on the government to ensure that presidential press conferences are held in secluded places, such as the “VVIP” lounge at the airport, as has been the case in the past; or at state residences where journalists would feel protected. Furthermore, they asked that presidential press conferences be restricted to the media only.
While journalists, civil society bodies, international organisations and foreign nations want the government to relent on the matter, Mutharika has defended the amendment of the bill. Since 25 February, the president’s office has been running a full-page advert in three of the four BNL publications: the Malawi News, the Sunday Time, and the Daily Times. The advert presents detailed facts that are aimed to justify the endorsement of the new law. The same advert is also running on state-controlled broadcasters MBC TV and MBC radio, as well as the privately owned Zodiak Broadcasting Station.

The advert in question quotes Bright Msaka, who as chief secretary to the government is head of the office of the president and cabinet. “The government has noted, with concern, that despite previous explanations by the government on the amendment of Section 46 of the Penal Code, there is lingering apprehension on the part of the media and other groups in Malawi as to the true intent and purpose of the amendment,” Msaka said. 

He added the government insists the amendment of Section 46 of the Penal Code is motivated by the desire to improve the law in line with the Constitution, the rule of law and precepts of democracy. “This was why the previous Section 46 was amended to take away the absolute discretion of the minister in the exercise of his powers,” said Msaka, who is a lawyer of high repute. He argued the amended section applies the test of reasonableness to the minister’s decision.
The president’s office attempted to justify its cause further, saying the exercise of ministerial power under the new amended bill is subject to judicial review by the courts in Malawi, and any aggrieved person may challenge a decision taken by the minister. “In addition, there are other constitutional provisions that provide a robust safeguard against the abuse of the new section 46 by the minister,” Msaka said.

Unlike in other arguments, where there was no explanation as to how government is expected to use the law, this time the office of the president explained how they expect to make use of it. Msaka said government would use Section 46 only in cases of publication of material that was repulsive or pernicious to the public in Malawi, such as child pornography, incitement to violence or promotion of hatred, genocide or terrorism. “Surely Malawi, like all democracies, must have laws to address such matters,” he said.

Semphere said since this issue affects all Malawians, there is a need to consult widely and come up with the best way forward. But University of Malawi lecturer and constitutional lawyer, Edge Kanyongolo, told the media that repealing Section 46 through talks would be a lengthy process. “Challenging it in court will be the best course of action,” he advised.

Journalists have different views on how the bill is going to affect their work. Raphael Tenthani, Malawi correspondent for BBC, Pan-African news Agency and the Associated Press, said media practitioners have many reasons to be afraid. Tenthani, who writes a critical column for the Sunday Times called “Muckraking on Sunday” said he is now forced to resort to rigorous self-censorship when writing his entries. “If I... use a word or a statement that Vuwa (Kaunda, current information and civic education minister) takes offence at, then he will ban the entire Sunday Times,” he said.

Malawi Bloomberg correspondent Frank Jomo said Mutharika was not necessarily using the law to punish the media, but that he was obsessed with ensuring that his younger brother, current minister of education, science and technology, Peter Mutharika, should take over from him. “Government intends to kill the national agenda that will come against the professor (Peter Mutharika),” he said.

Currently, the media says it is still consulting with various parties. But both Semphere and Kasunda say that if discussions do not bear fruit, they will seek legal redress. FAM

Certain sections of this story were originally published at BizCommunity.

Main photo: AU chairman president Bingu Wa Mutharika of Malawi addresses the media after closing the AU summit in Uganda's capital Kampala July 27, 2010. Reuters/James Akena

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