MISA Malawi is deeply concerned about threats against Platform for Investigative Journalism (PIJ) Editorial Director Gregory Gondwe.

Gondwe is currently in hiding, on advice from military sources, following his exposé on the payments that the Malawi Defence Force (MDF) made to businessman Zuneth Sattar, a fraud suspect under the Anti-Corruption Bureau (ACB) probe.

“This isn’t just about legal threats, which I was prepared to face head-on. Yesterday, top government officials confirmed that the MDF intended to ‘arrest’ me for allegedly ‘endangering state security’ – a vague and ominous accusation.”

“Given the potential for my situation to be ‘accidentalised’ with a seemingly plausible explanation posthumously, I’ve heeded the advice to protect myself. In this line of work, death can be disguised as an accident, and no hospital can revive a life once lost,” Gondwe wrote on his Facebook Page.

MISA Malawi engaged the Army Commander General Paul Velentino Phiri and the Attorney General (AG) Honourable Thabo Chakaka Nyirenda on the matter and they have both assured us that there are no plans to arrest Gondwe or intimidate him for writing the story. We hope and trust that these assurances are true and sincere.

We would like to remind government bodies and all citizens that threats on journalists are retrogressive and a threat to democracy.

We believe that if the MDF or any other concerned parties have an issue with the media, they should use proper channels to raise such issues, but military interrogations and threats are not among those channels.

The threats on Gondwe’s life have a chilling effect on journalists and the media fraternity. As a democracy, Malawi should not slide back to the era of heavy-handedness on media and critical voices.

We will continue engaging the leadership at MDF and the office of the Attorney General to ensure the safety of Gondwe and a free and conducive media operating environment.

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The Spaces of Solidarity platform, thus, calls on the government, through MACRA, to address concerns of high annual fees broadcasters have to pay to the regulator. These subscriptions are pegged in US dollars and the recent devaluation of the Malawi kwacha against all the major convertible currencies has made the licence fees more expensive and unsustainable for broadcasters in the country.

The Malawi Communications Regulatory Authority (MACRA) has over the past three months been revoking broadcasting licences and closing radio and television stations for delays in the remittance of broadcasting licence fees.

In 2022, MACRA revoked licences for six radio and four television stations due to delays by the stations to pay licence fees. More than 20 other stations are threatened with revocations.

While some of these stations managed to pay off the arrears, many of them resorted to unsustainable means to settle the fees. Some opted for bank loans, or sacrificed employee salaries for months, while religious affiliated media raised the licence fees through church offerings.

On February 7, 2023, MACRA released a statement announcing the revocation of two more radio broadcasting licences.

Malawi is a model of diversity in the broadcasting sector, but the closure of radio and television stations is retrogressive and can be construed as a systematic attempt by the government to infiltrate and control the media sector.

These shutdowns are a threat to media freedom, independence, plurality and diversity of the media landscape.

The revocation of licences is worrying at a time when there is general concern of shrinking civic space in Malawi.

The closures are not only threatening Malawi’s nascent democracy but also rendering hundreds of journalists jobless.

The Spaces of Solidarity platform, thus, calls on the government, through MACRA, to address concerns of high annual fees broadcasters have to pay to the regulator. These subscriptions are pegged in US dollars and the recent devaluation of the Malawi kwacha against the all major convertible currencies has made the licence fees more expensive and unsustainable for broadcasters in the country.

In addition, broadcasting stations are also mandated to pay other monthly levies to Malawi Telecommunications Limited (MTL) and Malawi Digital Broadcast Network (MDBN).

Shutting down the broadcasting media outlets is denting Malawi’s progress since the introduction of multiparty democracy in 1993 and the operationalisation of the Access to Information Act in 2020.

We would also like to bring to the government of Malawi’s attention the African Commission on Human and Peoples’ Rights’ Declaration on Freedom of Expression and Access to Information.

The Declaration notes the particular importance of the broadcast media in Africa, given its capacity to reach a wider audience due to the comparatively low cost (emphasis our own), of receiving transmissions and its ability to overcome illiteracy, geographical and other communication barriers.

Instead of revoking broadcasting licences, we proposed that MACRA should engage all relevant stakeholders and dialogue on ways of sustaining broadcasters’ operations and at the same time, ensuring compliance with their licence obligations and standards.

We reiterate the call for dialogue and engagement on the issue of broadcasting licences before any drastic action is taken that could further sully Malawi’s image on the international stage.

The Spaces of Solidarity platform, therefore, is calling on the government of Malawi to find a holistic solution to challenges leading to the closure of radio and television stations in Malawi.

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Malawian authorities should immediately drop defamation and cyber-related charges against Maravi Post journalist Dorica Mtenje and allow her to report free from legal harassment, the Committee to Protect Journalists said Wednesday.

On February 8, police in the capital Lilongwe summoned Mtenje via phone to appear the following day for questioning over a Maravi Post story she did not write or publish, according to news reports, a statement by the Malawi chapter of the regional press freedom body Media Institute of Southern Africa (MISA), a bail form that CPJ reviewed, and a CPJ interview with the journalist. When Mtenje arrived at the station the next day, police detained her for 12 hours and charged her with defamation and offensive communication following a complaint by National Intelligence Service Director General Dokani Ngwira.

“The detention, confiscation of her phone, and charging of Malawian journalist Dorica Mtenje following a complaint from the country’s intelligence chief about an article that was not bylined and that she did not write is a fishing expedition to intimidate the press,” said Angela Quintal, CPJ’s Africa program coordinator, in New York. “We urge Malawian authorities to immediately drop the charges against Mtenje and ensure that criminal defamation is repealed, in the same way that sedition and insulting the president are no longer crimes in Malawi.”

On February 18, President Lazarus Chakwera assented to the Penal Code (Amendment) Bill of 2022, which repeals the crimes of sedition and insulting the president.

On February 9, Mtenje appeared at police headquarters in Lilongwe at around 8 a.m. and was formally charged and detained at about 5 p.m., according to a news report and the journalist. Mtenje said her mobile phone was confiscated but returned upon her release three hours later.

Her supervisor, Lloyd M’bwana, was also summoned for questioning over the same story but he did not appear, according to MISA, Mtenje, and M’bwana, who spoke to CPJ. M’bwana told CPJ he did not go because he did not receive an official summons, only a call from police.

Mtenje is charged with offensive communication, under to Section 87 of the Electronic Transactions and Cyber Security Act, and defamation, under Section 200 of the country’s penal code.

If found guilty of offensive communication, Mtenje faces up to a year in prison or a fine of 1 million Malawian kwacha (US$975), while the defamation charge carries an undefined fine, a two-year imprisonment, or both.

Mtenje told CPJ that she appeared before police on her own and was not accompanied by a lawyer.

“I asked the officer why they summoned me after showing me the story I didn’t even write, but I was told they suspect that me and my boss could have written it,” Mtenje told CPJ. “They took away my phone… at some point, one officer went away with it. It has no password.”

Information Minister Moses Kunkuyu told CPJ he had secured Mtenje’s release and that her case was “closed.” However, the officer who handled the matter claimed to be unaware of the closure after her release, according to Mtenje.

When reached by CPJ via messaging app, Ngwira said he had not made any complaints against a journalist, but he alleged that a tabloid had been writing “lies against my person and the National Intelligence Service without even a single attempt to seek our side of whatever they write.”

Ngwira said a police investigation was what led to the summoning and arrest of Mtenje. “I believe they are still investigating, and even for her to be released quickly was because MISA Malawi through their [chairperson] reached out,” he told CPJ.

Malawi Police Service spokesperson Peter Kalaya did not immediately respond to CPJ’s request for comment sent via messaging app. He is quoted by the MISA statement as saying police were only acting on a complaint by the National Intelligence Service Director.

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Over 250 full-time and part-time media practitioners and support staff have lost jobs

The continued revocation of broadcasting licences by the Malawi Communications Regulatory Authority (MACRA) under the current political administration is washing away the media and democratic gains of the past 29 years.

Two notices of enforcement action against non-compliant communication licencees that MACRA released on July 14 and 19, 2022 show that, in total, licences for 23 radio stations and six television stations may be revoked by the end of 2022.

Since June 2022, MACRA has revoked licences of three television stations and six radio stations over delays to pay annual licence fees. The stations include Rainbow Television, Angaliba Television, Ufulu Television, Angaliba FM, Capital Radio, Sapitwa FM, Joy Radio, Ufulu FM and Galaxy FM.

Media houses’ efforts this far

The issues that are leading to the revocation of licences are not new. Past administrations did not close down stations for delaying to pay license fees. We believe the decision not to close down stations was due to respect for fundamental rights including media freedom, access to information and economic rights of hundreds of Malawians employed by the affected media outlets.

Through several platforms and engagements, broadcasters have raised concerns about high annual fees that they have to pay to MACRA, the fees being pegged in US dollars, other monthly fees that they have to pay to MTL and MBDNL and the fact that business has generally not been smooth in the last few years due to the Covid-19 pandemic and the general poor performance of the economy.

Despite the engagements, MACRA, whose regulatory mandate also includes creating a favourable environment for the growth of the sector, has not done anything to address such concerns. Despite MACRA’s inaction, broadcasters made efforts to pay in instalments, but MACRA went ahead to revoke licences even where the final payments had already been made. This leaves us with questions on MACRA’s real intentions.

Loss of Jobs

Over 250 full-time and part-time media practitioners and support staff have lost jobs at the stations whose licences have been revoked; Rainbow Television (70), Ufulu FM (34), Joy Radio (40), Capital Radio (45) and others coming from Sapitwa FM, Galaxy and Angaliba.

This is happening at a time the Chakwera administration is championing an agenda of job creation and preserving the available ones through the Ministry of Labour, which has unfortunately remained silent on the issue.

This is also happening when companies are trying to rebuild following a devastating Covid-19 pandemic during which many businesses, including the media, were affected. Businesses have also been struggling to survive the economic difficulties that the country is going through, which evidently led to the devaluation of the kwacha with a historically high percentage of 25%.

Is MACRA creating space for other broadcasters and killing competition?

On July 2, 2022, MACRA issued a communication suspending the issuance of broadcasting licences and broadcasting frequencies due to saturation of the FM band. At the same time, MACRA has gone on a licence revocation spree on the basis of delayed payment of license fees, even refusing to accept funds that have already been paid. It is easy to construe the revocations as an attempt by MACRA to create space for new stations.

MISA Malawi worries that where that happens, MACRA’s objectivity in issuing licences that would be critical of the current administration becomes uncertain. The media diversity & pluralism that the country has enjoyed before the current administration came into office is now under threat.

Malawi’s International Rankings

Malawi’s Media Freedom ranking by Reporters Without Borders has already declined for the year 2020. Malawi, which last year recorded a rise in the rankings – thanks to the enactment of its access to information law – recorded a decline from 62 to 80 out of the 180 countries that were assessed.

The closure of radio and television stations threatens to lead to a further decline in the ranking and put a dent on President Chakwera’s administration, especially when looked at from the lens of the campaign promises and the circumstances that led to President Chakwera’s election.

MISA Malawi’s Recommendations

MISA Malawi respects MACRA’s statutory mandate and broadcasters’ obligations under the Communications Act and other relevant laws of Malawi.

However, the closure of broadcasting houses is threatening the broadcasting and democratic gains that the country has made since the reintroduction of a multiparty system in 1993.

Malawi has been a model country on pluralism and diversity in the broadcasting sector but all that is being eroded.

We cannot underestimate the impact of these revocations on access to information for Malawians, media freedom and the economic well-being of those people losing jobs in the closed stations.

MISA Malawi therefore reiterates its recommendation for a win-win situation for MACRA, broadcasters and citizens. We would like to ask MACRA, again, to reverse the decisions being made as they are not only retrogressive but are systematically killing the democracy that we have struggled to grow.

We recommend a measured approach considering the fact that the affected media houses already started clearing their outstanding arrears. Revocation of a licence is too drastic and reactive. There is need for a holistic and proactive approach to ensure that the media survives post the Covid-19 pandemic.

We again reiterate our call for more dialogue and progressive approaches on how the stations can settle the accumulated licence fees while operating and providing platforms for democratic discourse.

Way forward

MISA Malawi will be making further communication to the membership on these matters.

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The hacking of the Platform for Investigative Journalism (PIJ) website is a serious attack on journalism, a violation of the right to access information and a criminal offence under the Electronic Transactions and Cyber Security Act of 2016.

The hacking of the website investigativeplatform-mw.org was noted on Thursday, April 14, 2022 and the site remained inaccessible for many hours on Friday.

“Our website has been hacked by an unknown group and readers cannot access it at the moment.  We are working with our IT team to retrieve it and resume the important work of publishing public interest journalism. The public will be notified once we have retrieved our website,” reads the notice on the PIJ facebook page.

The incident happened barely nine days after officers from the Malawi Police Service (MPS) detained PIJ Managing Director Gregory Gondwe and held on to the computer and phone they confiscated from him overnight before returning them.

The confiscation of Gondwe’s Information Technology (IT) equipment by the police already raised serious privacy concerns and this latest hacking incident vindicates such fears. We believe the hacking incident is not a mere coincidence.

MISA Malawi believes the hacking is intentional and we cannot rule out the involvement of State agents considering the circumstances.

We are concerned that the police officers, who must be in the forefront to combat Cybersecurity risks of Malawians and others in the country, were directly involved in actions that qualify them as prime suspects in this Cyber attack.

The hacking is a direct attack on media freedom, the right to access information and a criminal offence under the Electronic Transactions and Cyber Security Act of 2016.

The Electronic Transactions and Cyber Security Act of 2016 prohibits hacking, cracking and introduction of viruses, and any person who commits such offences is liable to a fine and to imprisonment for seven years.

We therefore ask the State to investigate and prosecute anybody who violated section 21 of the Constitution of Malawi by violating Gondwe’s privacy and are now prime suspects in this hacking incident.

We wish to remind government that these continued attacks on journalists are tarnishing the country’s image as regards press freedom, a fundamental component in a democratic society.

We would like to appeal to journalists in the country to not cower down to such intimidation tactics. The calling to practice journalism is to the service of society and where some groups take desperate measures to interfere with the work of the media is validation that journalists are on the right course.

MISA Malawi also appeals to rights bodies in the country, diplomatic missions and lawyers of good will to join us in the fight for media freedom and to further protect citizens’ right to know.

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This statement was originally published on misa.org on 5 April 2022.

Police have detained Platform for Investigative Journalism (PIJ) Managing Director Gregory Gondwe over a story about the Attorney General that the platform published on March 30, 2022.

Police officers are forcing Gondwe to disclose source of a document the platform used in the story.

Information reaching us indicates that police officers have confiscated gadgets, including computers and phones from Gondwe.

MISA’s position

MISA-Malawi’s position is that forcing a journalist to reveal sources of their information is against the protection of legally privileged information and whistleblower protection provisions of the Access to Information (ATI) Act. We are following up the issue and we will keep you updated.

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Statement on International Day to End Impunity for Crimes Against Journalists

As the world commemorates the International Day to End Impunity for Crimes Against Journalists, MISA urges the authorities in Mozambique to account for the whereabouts of journalist Ibraimo Mbaruco.

Mbaruco has been missing since April 2020.

This is very worrying because of the chilling similarities of his unknown fate with that of Tanzanian journalist, Azory Gwanda, who disappeared in mysterious circumstances in November 2017. The Tanzanian government only reported him as dead in 2019. Gwanda was investigating a spate of high profile killings in the Rufiji area when he went missing.

It is, therefore, inexplicable, given the state machinery at the disposal of the Mozambican government, that a human being, let alone a journalist, can just vanish from the face of the earth, leaving his traumatised family in the dark as to what could have happened.

The seemingly lackadaisical, if not offhand manner, with which the Mozambican government is handling this serious matter, is disconcerting and raises unnecessary speculation and conspiracies on who was involved in Mbaruco’s disappearance.

Throughout the world, it is the State’s responsibility to ensure the safety and security of its citizens, including journalists.

Mbaruco’s last known message was that he was surrounded by soldiers.

His fate is not a matter that should easily be swept beneath the carpet but deserves the serious attention of the Mozambican government for the knowledge and peace of his family and colleagues. Allowing the perpetrators to go unpunished will spawn and perpetuate a culture of impunity that poses great risk to the work of journalists whose profession is at the core of accountable governance, respect for fundamental human rights and socio-economic development.

Our concerns come at a time when the southern African region is experiencing unprecedented upsurges in media freedom violations in member countries previously envied as paragons of media freedom.

For instance, a South African Broadcasting Corporation (SABC) crew was allegedly held against their will and threatened by African National Congress (ANC) supporters in Buffelshoek, Bushuckridge in Mpumalanga on October 21, 2021.

The news crew had to be rescued by the police.

According to the SABC news website, the ANC supporters, numbering about 20, threatened to burn the broadcaster’s vehicle and take the crew’s equipment.

At least four community radio stations were vandalised, with equipment worth tens of thousands of United States dollars destroyed during protests in South Africa following the incarceration of that country’s former president, Jacob Zuma.

The radio stations that fell victim to the protesters are Alex FM, in Alexandra, north of Johannesburg, Mams Radio, In Mamelodi, northeast of Pretoria, West Side FM, in Kagiso, west of Johannesburg and Intokozo FM, in Durban.

In Malawi, a group of 10 Malawi police officers on January 22, 2021, allegedly assaulted an investigative journalist, Henry Mhango, while he was reporting on compliance with COVID-19 regulations.

Nine journalists were on September 30, 2021, arrested by members of the Zimbabwe Republic Police while at the Zimbabwe Electoral Commission (ZEC) offices in Harare.

The journalists, Leopold Munhende, Thomas Madhuku, Nyashadzashe Ndoro, Robert Tapfumaneyi, Marshal Bwanya, Gaddaffi Wells, Adrian Matutu, Tongai Mwenje, and Tinashe Muringai, had gone to the ZEC offices to cover a demonstration by members of the opposition MDC Alliance.

The journalists were taken to Harare Central Police Station before being released without charge, following the intervention of lawyer Chris Mhike.

MISA urges other SADC governments to take a leaf from the action of the Zambian Information and Broadcasting Services permanent secretary, Amos Malupenga, in his quest to safeguard media freedom and the rights of journalists.

Malupenga marched to the police headquarters in Lusaka on March 12, 2021, demanding that law enforcement agents do more to protect journalists who were facing increased attacks and harassment.

As highlighted by UNESCO, impunity for crimes against journalists damages societies by covering serious human rights abuses, corruption and crime.

We, therefore, urge authorities to investigate crimes committed against journalists on duty and prosecute the perpetrators, as this will send clear messages that society does not tolerate attacks against the media.

As has been pointed out, impunity damages whole societies by covering up serious human rights abuses, corruption, and crime.

The media is at the core of citizens’ right to free expression and accountable governance.

Golden Maunganidze
MISA Regional Chairperson

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Malawi authorities should ensure journalists can report without fear of violence, harassment, or detention, the Committee to Protect Journalists said today.

On the morning of June 30, police officers beat and briefly detained Oliver Malibisa, a reporter with the local Likoma Community Radio broadcaster, as he tried to cover a student demonstration at Likoma Secondary School in central Malawi, according to the journalist, who spoke to CPJ via messaging app, and news reports.

“The assault and detention of journalist Oliver Malibisa by Malawi police was an attack on press freedom, and impunity for such acts sends an even more worrying message about journalist safety in the country,” said Angela Quintal, CPJ’s Africa program coordinator, in New York. “Journalists must be free to report on issues of public interest, like protests, without fear of violence or harassment.”

Malibisa told CPJ that an officer named Prosecutor Nyirenda hit him in the chest with a gun and told him to stop filming the demonstration.

Malibisa told CPJ that he continued filming, and then about five other officers “joined in harassing me. They started dragging me while shouting, ‘You are stupid, why are you here? Give us your phone.’ I complied and gave them the phone.”

The officers used pepper spray on Malibisa and drove him to the Likoma Police Station, where he was held for two hours, he said. He was released without charge, and his phone was returned on the order of the senior officer at the station, according to Malibisa and a statement posted on Facebook by the local chapter of the Media Institute of Southern Africa (MISA), a regional media freedom organization.

Malibisa told CPJ that while he was in detention, he asked to be able to use his phone to contact Likoma Community Radio manager Davie Kacholola or MISA-Malawi, but the police ignored his requests.

Kacholola told CPJ via messaging app that “the matter was sorted out, everything is normal,” but he did not elaborate when asked for more details. Malibisa told CPJ he wanted an apology from the police.

Malawi Police Service spokesperson James Kadadzera did not respond to CPJ’s phone calls or questions sent via messaging app. CPJ was unable to find contact information for Nyirenda.

Previously, in April, Malawi police briefly detained Nyasa Times news website reporter Watipaso Mzungu and Joy Radio reporter Enock Balakasi, as CPJ documented at the time.

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Journalists in Malawi are fighting misinformation around Covid-19 by providing expert-based information on the pandemic.

Since the detection of the first Covid-19 case in April 2020, misinformation and disinformation around the pandemic have hugely defined social media and street narrative in Malawi.

Station Manager for Nyanthepa Community Radio in Nsanje district David Guta said experts are the right vehicles of right information.

“So, what Nyanthepa is doing is to have round-table programmes, call experts from the district hospital and open the phone lines to community members for community members to ask questions about Covid-19. These questions are based on misinformation which they have and experts clear such misconceptions,” Guta said.

Jean Chilombo, Station Manager for Chisomo Community Radio in Salima district, said the station is encouraging its staff to use information coming from credible sources in stories and programmes.

“We are there as eyes and ears of community members who may not have access to credible Covid-19 information,” Chilombo said.

Zodiak Broadcasting Station reporter for Ntchisi district Gift Du Phimba said journalists must be careful about what they share with the public.

“People believe what you say or share as a journalist whether on or off duty. Journalists need to take a leading role in sharing verified information,” Phimba said.

George Mhango, Rainbow TV Regional Manager for Southern Region and SABC Correspondent, said he sensitises people on how to wear masks and follow other preventive measures aimed at dealing with the further spread of the pandemic.

To MIJ FM Radio reporter Georgia Chirombo, “the most important thing is to reach out to the masses with the facts around Covid-19.

“There is a lot of misinformation around how one gets infected and the questions around effectiveness of the vaccines,” Chirombo said.

Malawi News Agency Editor Fostina Mkandawire said verification of information that one gets is key in fighting both misinformation and the pandemic.

“People should always verify every information they get from social media platforms such as WhatsApp and Facebook before believing what they hear or see,” Mkandawire said.

MISA Malawi is currently implementing the Only Spreading Facts Campaign in partnership with DW Akademie, Germany’s leading organisation for media development. The aim of the campaign is to highlight projects that are fighting misinformation around Covid-19.

As of July 2, 2021, Malawi had confirmed 36,573 Covid-19 cases and 1,202 Covid-19-related deaths.

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By Jimmy Kainja

Three years after announcing plans to draft a bill on data protection in response to the changing media and technological landscape, the government of Malawi issued a call for public comments on the Data Protection and Privacy Bill, 2021. The proposed legislation is a welcome step in addressing policy and practice gaps in privacy and data protection in the southern African country.

According to the Ministry of Information, with increased digitalisation, personal data collection, processing and storage by public and private sector institutions is on the rise, which warrants greater protection through a dedicated law. As such, the draft bill seeks to “provide a comprehensive legislative framework for the protection and security of personal data, consolidate data protection provisions currently found in various Acts of Parliament, and protect the privacy of individuals without hampering social and economic development in Malawi.”

Section 21 of Malawi’s Constitution provides that every person shall have the right to personal privacy, which shall include the right not to be subject to (a) searches of his or her person, home or property; (b) the seizure of private possessions; or (c) interference with private communications, including mail and all forms of telecommunications. The bill aims to actualise the constitutional provisions and would apply to “processing of personal data wholly or partly by automated means”.

Under clause 5, exemptions apply to the processing of personal data “to the extent it is carried out by one or more individuals solely for personal, recreational or household purposes.” Further, exceptions apply to the processing of personal data carried out by unspecified “competent authorities” for purposes of law enforcement, promotion of public health or prevention or control of an epidemic, national security and credit reference bureau business. Without a clear definition of what constitutes legitimate purposes under the various exemptions, data subjects may be subject to violation of privacy.

On a positive note, under Part III, the bill sets out various principles governing processing of personal data. Among these are fairness and transparency; prohibition of processing of sensitive personal data; obtaining consent prior to processing the data of a minor (below 18 years); burden of proof for establishing consent being borne by the data controller; provision of all the necessary information to the data subject prior to data collection; collection based on legitimate purpose, minimisation, limited retention and accuracy; and conduct of a data protection impact assessment prior to processing.  

The rights of a data subject outlined under Part IV include correction and deletion, withdrawal of consent, objection to procession, refusal of automated decision making, and data portability. Under data portability, the bill provides for cross-border data transfers, with  clause 34 stipulating that data transfers to another country or international organisation are restricted to a recipient “subject to a law, binding corporate rules, contractual clauses, code of conduct or certification mechanism that affords an adequate level of protection”.

According to clause 35, protection is deemed adequate “if it upholds principles that are substantially similar to the conditions for processing of the personal data” provided for under the Malawian bill. Among others, adequacy of protection takes into account the availability of enforceable data subject rights; the ability of data subjects to enforce their rights through administrative or judicial redress, and the rule of law generally; the existence of an effective data protection law; the existence and functioning of an independent, competent data protection or similar supervisory authority with adequate enforcement powers; and international commitments and conventions binding on the relevant country or international organisation and its membership of any multilateral or regional organisations.

In the absence of adequate protections, cross-border data transfers may only happen if the data subject is informed of the possible risks and consents, if the transfer is necessary for the performance of a contract, or if the transfer is for the benefit of the data subject.

The penalty for failure to comply with the provisions of the bill or enforcement orders are a fine of 5,000,000 Kwacha (USD 6,200 ) and imprisonment for two years (clause 42). Meanwhile, the penalty for an offence in contravention of regulations issued pursuant to the bill is also a fine of 5,000,000 Kwacha  (USD 6,200) and imprisonment for up to five years.

The bill empowers the country’s telecommunications regulator, the Malawi Communications Regulatory Authority (MACRA), to oversee the implementation of the data protection law. However, MACRA’s proposed mandate raises concerns about autonomy, given that the Authority is reportedly subject to political interference. Also, MACRA has a history of failing to implement aspects of its core mandate, such as evidenced by telecommunications operator compliance with universal service provision obligations.

Another cause for concern is the National Registration and Identification System (NRIS), which is being used for biometric data collection and its processing has been centralised in Malawi since 2017. The NRIS is linked to voter registration, revenue collection, immigration, SIM card registration, banking, as well as financial inclusion and development programmes. This has made it ever more crucial to have strong regulations to protect personal data privacy. Starting March 2021, the system has been used to support the Covid-19 vaccine rollout. The NRIS has been described as having been rolled out at “breakneck speed”, without due regard for human rights. This has been largely attributed to primary focus on social-economic issues, as opposed to digital rights.

The move to enact a data protection law in Malawi, in consultation with the public and stakeholders, is commendable. However, certain provisions such as those relating to exemptions have the potential to undermine privacy and should be revised. Revisions to the bill should also take into account penalties commiserate with offences, and provide for establishment of a truly independent oversight body.

It is also hoped that the data protection bill is passed swiftly and not take decades in the pipeline as was the case with the Access to Information law, whose proposals were first tabled in 1999, only to be passed in 2016, enacted in 2017 and operationalised in 2020.

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