However, there is a variance between the lofty and noble propositions contained in the Constitution and the old laws which continue to exist on the statute books. Such laws could either be repealed or brought into conformity with the Constitution through legislative action, but this has not yet happened. The task of reconciling the Constitution and laws that appear to infringe it has therefore to be undertaken through the laborious process of litigation.
The Constitution of Malawi provides clearly in Article 4 that all laws and actions of the State must conform to the Constitution and renders them invalid to the extent that they violate or are inconsistent with it. In Article 10, the Constitution provides that in the interpretation of all laws and in the resolution of political disputes the Constitution shall be regarded as the supreme arbiter.
Chapter IV, the Bill of Rights, opens with an article which requires all the organs of the State, its agencies and, where applicable, natural and artificial persons to respect and uphold the rights contained in that Chapter.
Article 33 declares and recognizes the right of every person to freedom of conscience, religion, belief and thought, and to academic freedom. Article 34 lays down the right of every person to freedom of opinion which includes the right to hold opinions without interference and to hold and impart opinions. Article 35 provides for the right of every person to freedom of expression.
Article 36 provides for press freedom as follows:
"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."
Article 37 sets out the right of every person to have 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 rights. This right is, however, made subject to any Act of Parliament. No Act affecting the right has so far been passed by Parliament.
The Constitution guarantees the independence of the judiciary and it is the courts themselves which are the arbiters of the Bill of Rights. However, in a recent decision relating to the rights of persons in custody to be released with or without bail, the Malawi Supreme Court appeared to take a narrow and disturbing view of the status of Constitutional prescriptions. The court held that the mention of the right to bail in the Bill of Rights did not add anything to the common law position regarding bail. It advised that courts should continue to apply the rules or practices on bail which prevailed before the Constitution came into force.(Director of Public Prosecutions vs McWilliam Lunguzi, Criminal Appeal No. 1 of 1995).
The failure of the Court to recognize that any Constitutional proposition should be accorded weight greater than any other source of law appeared to ignore the provisions of the Constitution itself.
In another case, journalists who attended a press conference by some opposition political leaders were compelled to appear as State witnesses to testify against those leaders. The fact that the press has the rights set out in Article 36 of the Constitution did not appear to have occurred to the State Attorneys prosecuting the matter or to the trial court. It would appear again that the prescriptions of the Constitution are not always taken into account by the State or the courts as the Constitution itself directs. (The Republic vs Unandi Banda, Criminal Case No. 426 of 1995).
The Constitution of Malawi can be amended by a two thirds vote of the members of Parliament. By Article 195, however, any amendments affecting the Bill of Rights, the electoral process, citizenship, the judiciary, the fundamental principles of state and the establishment of the Republic cannot be made without the approval of a national referendum.
The Constitution therefore appears to spell out the rights of the individual and the press with respect to information and reporting in reasonably clear language. The extent of these rights in practice will depend on the decisions of the courts in cases where the relevant articles of the Constitution have to be interpreted. No such cases have yet arisen.
Restrictive laws
The new government's failure, so far, to repeal legislation which is apparently in conflict with constitutionally guaranteed rights has left many laws in place which are potentially restrictive of freedom of expression and the media.
The Official Secrets Act, for example, contains provisions which are in conflict with the right of the media to report freely. Under section 3, it is an offence for anyone to make a "sketch, plan, model or note" or to publish or communicate "any secret official code, word, sketch, plan, article, note or other document" which may be useful to an enemy. It is more or less presumed that a person who does any of the forbidden acts would have done them with the purpose of harming the interests of safety of the state. Journalists reporting on security issues run the risk of contravening the Official Secrets Act without any criminal intent on their part.
The Preservation of Public Security Act empowers the Minister to make regulations providing for the prohibition of the publication or dissemination of any publication he regards as infringing the Act, including mere possession.
Section 46 of the Penal Code gives the Minister the power to prohibit the import of publications contrary to the public interest. The importation of publications is also subject to the Censorship and Control of Entertainments Act. This creates a Censorship Board with the power to prohibit the import and circulation of "undesirable publications". These include publications which are indecent, obscene, offensive to public morals; offend religious convictions and feelings of a section of the public; bring any member or section of the public into disrepute; harm relations between sections of the community or are contrary to the interests of public safety or public order.
The Act is so widely couched that it almost certainly offends the Constitution. There has been no case involving the interpretation of the provisions of the Act since the adoption of the new Constitution. The Censorship Board continues to exist, although in practice it has not attempted to assert all the powers invested in it by the Act. Amendments are under discussion which would narrow the scope of the Act, which suggests some acknowledgement of the new reality created by the Constitution.
Several other sections of the Penal Code create potential restrictions on press freedom. For example, it is an offence for any person to publish any false statement which is likely to cause fear or alarm to the public. It is also an offence to communicate "false statements" about Malawi to the outside world.
Under section 61 of the Code it is an offence for any person to defame a "foreign prince". Section 88 creates the offence of intimidation. Any person who threatens another person or his reputation or property with the intention of causing the threatened person to do something in order to avoid the threat shall be guilty of an offence. The editor, publisher or printer of any newspaper which publishes the threat shall also be guilty of an offence. This appears to be a serious infringement of press freedom and the Constitution.
Any person who writes any word with the deliberate intention of wounding the religious feelings of others commits an offence under Section 130 of the Code. Any newspaper article on religion could be the subject of a prosecution for violating the Section. The Code also makes it an offence under Section 179 for any person to produce, print, publish, import, possess or circulate any matter that is obscene.
Apart from being a civil wrong, libel is also a crime under the Penal Code.
Control of mass media
The press consists of a number of pri vately owned newspapers, as well as some which are owned by political parties or openly affiliated to them. In May 1996 the government launched its own newspaper, the Weekly News, mainly using copy from the official Malawi News Agency (MANA). Journalists are not required by law to register with any state authority, but in practice the Ministry of Information does give accreditation to journalists. There is no requirement to obtain a licence or registration from the government in order to publish a newspaper, beyond the normal requirements for setting up a company.
Neither the Weekly News nor MANA is a statutory body. However, the state-owned Malawi Broadcasting Corporation (MBC) is governed by statute. There is, however, no requirement under the Malawi Broadcasting Corporation Act that views opposed to the official position should be given equal, or indeed any coverage. Under section 14(2) the MBC is subject to the discretion of the controlling government minister in the content of its programmes and in the general performance of its duties. The Minister is expressly empowered by Section 31 to require the MBC (or any private broadcaster) to broadcast certain material and to specify the times when it shall do so. Section 32 empowers him to prohibit broadcasting which "would be contrary to the public interest".
Section 20 of the MBC Act vests the Minister with the power to issue licences to private broadcasters. Technical aspects are regulated by the Postmaster General under the terms of the Radiocommunications Act. However, all matters of substantive policy in relation to allocation of licences rest with the Minister. At present there is one private religious radio station. About 16 applications for private broadcasting licences are pending in the Postmaster General's office.
The board of the MBC has commissioned a draft new Act, which removes most of the objectionable features of the existing law, although it does not address the question of the regulation of private broadcasting. It provides a new procedure for the appointment of the Board to ensure independence.