How Lack of Access to Information and ICTs has fueled Disinformation in Malawi

By Jimmy Kainja |

The spread of false or misleading information online is due to various reasons. A recent BBC study on fake news in Africa found that sharing news online can be socially validating; because “being the first to share a story in your group of friends, showing others you are in the know and provoking discussion make social media users feel good. Sometimes people will rush to share information not knowing if it is true.” The study added: “… most people do not consume their online news in-depth or critically, and many users will share stories based on a headline or image without having digested it in detail themselves.”

In Malawi, the combination of lack of an enabling access to information law and limited access to the internet has left Malawians vulnerable to misinformation and disinformation.

On December 14, 2016, Malawi Parliament passed an Access to Information Bill, 12 years after its drafting. The then President, Peter Mutharika, assented to the bill into law on February 15, 2017. The purpose of the law is to promote transparency and accountability in the country by providing for “the right of access to information in the custody of the public bodies and relevant private bodies; the process and the procedures related to obtaining the information.”

The news of the presidential assent was perfectly timed – as it coincided with a BBC Africa debate on “fake news” at Ryalls Hotel, in Malawi’s Commercial City, Blantyre. In attendance was the Minister of Information and the State President’s Director of Communications. While the President was rightly applauded for assenting to the bill, the timing of the announcement on a live BBC programme appeared to be a government publicity  stunt. Consequently, some analysts warned of a long battle ahead to get the law operationalised.

The long struggle to have the access to information law passed and operationalised is an indication of the resolve of successive political administrations to limit the flow of information held by public institutions. This may be the reason why for a long time the Malawi government has also shown little interest in improving access to Information and Communications Technology (ICT) – which have been proven to broaden information flow and provide platforms for citizens to demand transparency and accountability of duty bearers.

As of 2019, Malawi’s internet penetration stood at only 13.9%, according to the International Telecommunication Union (ITU). Among the primary factors limiting access to the internet in Malawi is the cost, with the average price  beyond the means of citizens. Indeed, a recent study found that the internet in Malawi is among the most expensive in the world.

Print media is also scarce and expensive. With just two leading media groups – Nation Publication Limited (NPL) and The Times Group, Malawi has only two daily newspapers (with a circulation of 9,000 each), two Saturday newspapers and two Sunday newspapers with a combined circulation of 12,000 in a population of 17.5 million. Newspapers are all in English, a language spoken by the minority. The newspapers cost K600 ($0.79), for Sunday to Friday and Saturtuday papers, which has vernacular language cost K700 ($0.92) per copy, which translates to about K14,400 ($5.81) and K2,800 (3.69) monthly, against a national minimum monthly wage of K35,000 (USD 46.82).

Nonetheless, newspapers are very influential in information dissemination; where these newspapers lead, the rest of the local media are likely to follow. Moreso, the newspapers have presence on all major social media platforms where they repost much of the print editions’ content including the front and back-pages of the print editions. A journalist with NPL’s The Nation newspapers said this is done as one way of promoting the print editions.

Misinformation During the Annulled May 2019 Elections

In the period leading up to and immediately after the May 2019 elections, Malawi witnessed an increase in the spread of misinformation.

The results of that election, which saw the incumbent President, Peter Mutharika of Democratic Progressive Party (DPP) declared winner with 38.6%,  followed by Malawi Congress Party’s (MCP) Lazarus Chakwera with 35.4% and Saulos Chilima of UTM in third position with 20.2% were annulled by the Constitutional Court after the losing candidates challenged the outcome citing several irregularities including ballot tampering.

During the court proceedings, civil society organisations (CSOs), particularly Human Rights Defenders Coalition (HRDC), joined by the opposition parties and ordinary Malawians took to the streets, demanding resignation of Malawi Electoral Commission (MEC) Chairperson, Justice Jane Ansah, for her part in the electoral fraud. Inspite of government attempts to stop the demonstrations, courts upheld citizens’ rights to assembly and association, with  the military at hand to  ensure demonstrations were peaceful.

Alongside the peaceful demonstrations, print, broadcast and social media also provided platforms for mobilisation and engagement. However, the same platforms also proved to be fruitful ground for counterattack and smear campaigns by Peter Mutharika’s sympathisers against the CSOs and opposition parties. Most notable were altered front page headlines in the two leading daily newspapers and their weekend sister papers. The headlines were altered to change the news agenda and narrative on social media.

For instance, The Nation newspaper’s September 26, 2019 edition (below) had a frontpage story titled: “DPP, PROTESTERS CLASH FOIL MARCH”, with subheadings: “HRDC calls for anti-Ansah demo” and “Activist Mayaya, 4 others injured.” Mutharika supporters altered the headline and disseminated the page online reading instead: “ANGRY MALAWIANS BEAT BILLY MAYAYA”, with subheadings: “We are tired of your demos” and “HRDC violence destroyed lives.” Billy Mayaya is a leading member of HRDC, organisers of the demonstrations.

A similar example is of The Sunday Times  edition of October 13, 2019 (below), which featured a story of the then leader of HDRC, Timothy Mtambo surviving an attempt on his life by suspected state operatives. The headline “I SURVIVED ASSASSINATION ATTEMPT BY [GOD’S] GRACE – MTAMBO” was altered and disseminated online as “I FAKED ASSASSINATION ATTEMPT FOR SYMPATHY – MTAMBO.”

It is clear in these cases that the misinformation was created to discredit the CSOs position on MEC and its chairperson, Jane Ansah. Considering the low newspaper circulation and the high reliance on bundled internet for social media access, it is very difficult for the unsuspecting public, without access to newspapers or the Internet outside of data plans, to identify the irregularities in the above newspaper illustrations.

What is to be done?

On June 23, 2020, Malawi held a Constitutional Court-ordered fresh presidential election which was won by Lazarus Chakwera. The new government has promised to undertake a series of public reforms, one of which is to operationalise the access to information law, which has been Gazetted and becomes operational on September 30, 2020. The President said operationalising the law is one way of “[ending] the era of government secrecy”. Likewise, the new Minister of Information, Gospel Kazako – a veteran broadcaster and experienced media manager, appears to be taking calls from CSOs for affordable access to the internet seriously. He has called on telecommunication companies and the sector regulator, Malawi Communication Regulatory Authority, to work on modalities to make the internet more affordable.

If actualised, this would go a long way in addressing the information gap in the country and sustaining democracy.

Meanwhile, NPL and The Times Group have made efforts to promote awareness about misinformation, as in the case of the illustrations below:

Combined efforts of operationalising the access to information law and improving internet affordability by the government, together with sensitisation campaigns by media houses would go a long way in rebuilding trust and legitimacy of both institutions. However, additional efforts in promoting availability of information in local languages would further support verification of information at citizen’s disposal towards enhancing the power of access to information.

Jimmy Kainja is a 2020 CIPESA Fellow focussing on the areas of hate speech and misinformation, data protection, and access to information

Malawi's Democracy and Digital Rights Record to be Spotlighted by the Human Rights Council of the United Nations

By Michael Kaiyatsa and Ashnah Kalemera |

On February 3, 2020 Malawi scored a democracy victory when the Constitutional Court nullified the May 2019 presidential elections and ordered for fresh polls within 150 days. In that time, the country will also undergo its Universal Periodic Review (UPR) by the Human Rights Council, scheduled for May 2020.  Whereas previous reviews did not receive elections-related recommendations, Malawi’s  democratic credentials – freedom of expression, media freedom, and access to information – have come under scrutiny.

At the upcoming review, it is crucial that the country’s democratic credentials are scrutinised and recommendations to the Malawian government reflect explicitly the need to uphold rights and freedoms online and offline, in line with the state’s obligations under Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR).

In recent years, Malawi has made significant policy and structural reforms in the technology sector. The third Malawi Growth and Development Strategy (MGDS III) (2017–2022), recognises Information and Communications Technology (ICT) among the five priority areas in accelerating development. The strategy aims to increase access to ICT services; provide well-developed ICT broadband and infrastructure services; and increase the number of ICT-skilled and industry-ready workforce in public and private sector institutions. Meanwhile, the National ICT Policy, 2013 is dedicated to promoting the use of ICT in the country, and a national fibre optic backbone project was completed in April 2018.

However, the country must  commit towards ensuring a conducive environment for privacy and data protection as well as access to and affordability of the internet and related technology as key enablers of social, economic, and political development.

Freedom of expression

Article 35 of the Malawi Constitution guarantees freedom of expression while  Article 36 makes provisions for a free press. Despite these enabling constitutional provisions, other legislation places restrictions on citizens’ exercise of the right to freedom of expression.

The Electronic Transactions and Cybersecurity Act of 2016 provides for restrictions on online communications to “protect public order and national security”. The law also penalises “offensive communication” via online platforms with fines of Malawian Kwacha (MWK) 1,000,000 (USD 1,352) or a maximum 12 months prison sentence. Section 4 of the Protected Flag, Emblems and Names Act, 2012 makes it an offence to “do any act or utter any words or publish or utter any writing calculated to insult, ridicule or to show disrespect” to the President, the national flag, armorial ensigns, the public seal or any other protected emblem or likeness. The Penal Code penalises sedition (punishable with a fine of up to MWK 354, 845 – USD Dollars 480 – and imprisonment of five years for first time offenders and seven years for subsequent offences), and libel (up to two years imprisonment).

In the previous cycle of the UPR (May 2015), the government of Malawi received three recommendations relating to freedom of expression, opinion and the press from the governments of Austria, Ghana, and Tunisia although none explicitly mentioned the online sphere. Austria and Tunisia’s recommendations to “fully investigate all cases of harassment and intimidation of journalists and human rights defenders with a view of bringing the perpetrators to justice” and “issue a standing invitation to the special procedures of the Human Rights Council and ensure an enabling environment for the activities of journalists, human rights defenders and other civil society actors”, respectively were supported. However, Ghana’s recommendation to “decriminalise defamation and incorporate this into the Civil Code” was only “noted”.

Since then, there have been various instances of restrictions on freedom of expression online with notable arrests and prosecution for allegedly insulting the President and First Lady on Facebook; speech against a marginalised group; circulating forged documents; and treason. In July 2019, the Minister of Information and Government Spokesperson warned that the Electronic Transactions and Cyber Security Act, 2016 would be used to take punitive action against online speech viewed as denigrating to others. Furthermore, in the run up to the now annulled elections, the Malawi Communications Regulatory Authority (MACRA) issued a notice warning the public against disinformation on social media platforms. The notice stated that the regulator would “work with various stakeholders to seek ways of countering the spread of fake news.”

Freedom of information and censorship of content

Citizens’ right of access to information is provided for under Article 37 of the Constitution. The Access to Information Act of 2017 provides for the right of access to information in the custody of public bodies and relevant private bodies, as well as the processes and procedures for obtaining such information.

However the Official Secrets Act under section 4(1) prohibits disclosure of a wide range of information. The Preservation of Public Security Act (1960), under section 3 (Public Security Regulations) makes it an offense to publish anything likely to be “prejudicial to public security; undermine the authority of, or the public confidence in, the government; promote feelings of ill-will or hostility between any sections of classes or races of the inhabitants of Malawi; or promote industrial unrest in the country.” These two outdated laws place restrictions on access to information, in addition to offenses relating to sedition and publication of false information under the Penal Code. Further, Section 46 of the Penal Code empowers the Minister of Justice to prohibit the publication or importation of any publication that he or she considers to be contrary to the public interest.

During the second cycle of the UPR, the government of Malawi received two recommendations from Norway relating to the freedom of information – “Consolidate the policy gains into legal reforms on issues such as treatment of same-sex relations and access to information” (noted) and “Prioritise public education and information as well as capacity building of state institutions as part of efforts to strengthen implementation of national human rights legislation” (supported).

Since the review, instances of restrictions to access to information online include internet outages on election day in May 2019, with reports suggesting that the disruption was ordered by the government to disrupt information flows and keep citizens un-informed during the election. On censorship of content, amidst concerns over “moral standards, values and aspirations as a nation” within the music industry,  in May 2018, the Malawi Censorship Board embarked on a programme to review songs and films with “suspicious moral content” in order to “protect the rights of listeners”. In February 2019, Malawi Police arrested a musician for producing a “blasphemous song”. He was sentenced to two years in jail. According to Freedom House, “several journalists have complained that their articles are sometimes never published online or in print because their editors received directives from officials to refrain from publishing about certain topics”.

Equality and barriers to access

Section 157 of the Communications Act of 2016 mandates MACRA to establish a Universal Service Fund. In October 2019, MACRA announced that it would roll out the Universal Access to Information and Communications Technology (ICT) Services Project starting in 2020 to ensure universal coverage in the country, including to rural and under-served areas.

Despite these efforts, ICT adoption in Malawi remains among the lowest in the world – 25.5 mobile broadband subscriptions for every 100 inhabitants as at 2017, the most recent year International Telecommunications Union (ITU) data is available for. The Inclusive Internet Index 2019 which assesses internet availability, affordability, relevance of content and readiness ranks Malawi 98th out of 100 countries. Malawi is currently ranked 52 out of 61 countries in internet affordability. The average monthly cost of 1GB data is MWK 3,500 (USD 4.8).

The country has maintained a 17.5% value-added tax (VAT) on mobile phones and services, a 16.5% VAT on internet services and an additional 10% excise duty on mobile phone text messages and internet data transfers, introduced in 2015.

In October 2019, the government of Malawi attempted to introduce a 1% withholding tax on mobile money transactions in the 2019/20 National Budget. The proposal was withdrawn following pressure from civil society groups and the private sector.

Data protection and privacy

The right to privacy is enshrined in Section 21 of the Constitution of Malawi, which stipulates 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”.

Malawi does not have a standalone data protection law. In March 2018, the then Minister of ICT, Nicholas Dausi, announced plans to draft a bill on data protection in response to the changing media and technological landscape. In the meantime, The Electronic Transactions and Cybersecurity Act of 2016 which aims “to put in place mechanisms that safeguard information and communication technology users from fraud, breach of privacy, misuse of information and immoral behaviour brought by the use of information and communication technology” provides some protections. The Act provides for the processing of personal data (section 71); and the rights of data subjects (section 72) while sections 73 and 74 relate to the obligations of a data controller. Under section 84, the Act criminalises unauthorised access, interception, and modification of data with conviction attracting fines of MWK2,000,000 (USD 2,680) and imprisonment for five years. However, article 29 requires service providers to retain data and disclose it when required by courts.

There is also the Communications Act of 2016 which criminalises unlawful interception or interference, and disclosure of electronic communications (section 176), with penalties upon conviction of a fine of MWK 5,000,000 (USD 6,500) and imprisonment for five years.

Section 20(1) of the Access to Information Act of 2017 requires an information holder to notify third parties if information being requested relates to confidential or commercial interest. Third parties are required to respond in writing within 10 working days from the date of receipt of the notice and indicate whether the requested information is considered confidential and provide reasons for non-disclosure. The Act also prohibits information holders from disclosing information whose disclosure would result in the unreasonable disclosure of personal information about a third party (section 29) or which is likely to result in endangering the life, health or safety of a person (section 31). On the other hand, information holders are prohibited from disclosing legally privileged information unless the data subject (patient, client, source or person entitled to the privilege), consents to the release of the information or has waived the privilege or a court order is made to that effect (section 32).

Section 10 of the National Statistics Act, 2013 empowers the National Statistics Organisation (NSO) to collect all types of information, including personal information, nationwide on behalf of the government.

The major weakness of the current legal and policy framework is the lack of a dedicated data governance framework. This is especially problematic considering ongoing mandatory personal data collection exercises such as SIM card registration and biometric data collection as part of the national identification programme. Meanwhile, the government is reported to have rolled out the Consolidated ICT Regulatory Management System (CIRMS), with perceived surveillance capabilities. In 2017, the Malawi Supreme Court of Appeal dismissed an application by Telekom Networks Malawi (TNM), one of the country’s mobile service providers, to stop the implementation of the CIRMS on privacy grounds.

As part of Internet Freedom and UPR advocacy efforts at the Human Rights Council, the Centre for Human Rights and Rehabilitation (CHRR),  the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), and Small Media made the following recommendations to UN members to consider putting forward to the Malawi delegation during the upcoming review:

  • In compliance with international standards and the right to freedom of expression guaranteed under Article 19 of the ICCPR and section 35 of the Malawi Constitution, guarantee freedom of expression and opinion online as well as offline for media and individuals, including marginalised and discriminated groups by repealing all laws that restrict freedom of expression, including the Protected Flag, Emblems and Names Act, libel and defamation laws.
  • Refrain from implementing internet shutdowns or disruptions under any circumstances.
  • Ensure that the 2017 Access to Information Act is fully implemented and all public bodies are in full compliance in providing their data regularly in accessible formats.
  • Hasten efforts to provide equal access to technology and communications to all citizens, including disadvantaged and marginalised groups of the population, by removing barriers to access and improving affordability, as well as expanding infrastructure and desisting from internet disruptions.
  • Approve the legislation on personal data protection and privacy in order to provide safeguards on the use of personal data and to protect the right to privacy online.

Are Malawians Sleep-Walking into a Surveillance State?

By Jimmy Kainja |
In the last three years, the Malawi government has passed a lot of legislation, among these, is the National Registration and Identification System (NRIS), which according to the National Registration Bureau, is aimed at addressing the lack of universal and compulsory registration – the NRIS allows Malawians to have a national ID.
According to UNDP, one of the main funders of the exercise, 9 million Malawians have registered as of October 2019. This shows that Malawians have generally welcomed the exercise. Meanwhile, the registration in on going all District Offices where anyone turning 16 years can register and have their ID card issued.
Reasons for the general acceptability of the ID registration differ and in absence of any survey it is difficult to generalise the reasons but it can be speculated that among the reasons is that the majority of Malawians lacked any form of ID to do daily transactions. Majority Malawians do not have a passport or driver’s license and yet advance in technology, mobile banking for example, has increased demand for IDs in the country.
Following the NRIS exercise, the national ID has become increasingly become the only form of identification for most public transactions and registrations. In 2018 Malawi government through its telecoms regulator, MACRA, rolled out mandatory SIM Card registration, this is provided for in PART XI of Communications Act, 2016. The voter registration for 2019 tripartite elections required the national ID as a form of identification; and now commercial banks in the country have rolled out what they are calling “know your customer” (KYC) exercise, in which clients have to update their personal information with the banks. This time the banks are only accepting the national ID as a form of identity for Malawians, and passport for none Malawians.
This means that in a very short space of time Malawians have given away a lot of their personal data to both private and public institutions. All the data is tied to one’s national ID. This includes our communication data through our SIM Card enabled communication – internet, text messages and voice calls. But who how safe is this personal data? During the voter registration exercise did we not hear of Malawi Electoral Commission found abandoned in Mozambique? How do we ensure that our personal data is safe? How can we be sure that no third parties have access to our personal data? Who should be held accountable in case of any data breach?
These are legitimate questions, especially as any breach of personal data has implications on personal privacy. Privacy is inviolable right and it is constitutionally provided for under article 21 of Malawi constitution. Often people argue that you should not worry about privacy if you have nothing to hide. Yet, privacy does not mean that you have something to hide.
Journalist, Glenn Greenwald observes that privacy is important because we all need places where we can go to explore the issue without the judgmental eyes of other people being cast upon us. He argues that their people have all kinds of things they want to keep a secret that has nothing to do with criminality. He adds:
“only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie… When we think we’re being watched, we make behaviour choices that we believe other people want us to make … it’s a natural human desire to avoid societal condemnation. That’s why every state loves surveillance — it breeds a conformist population.”
In the wake of mass personal data collection, Malawi needs personal data protection legislation, and this legislation should have been in place before the NRIS and what has followed that exercise. Data protection is important in order to prevent third parties from accessing personal data and also stopping the authorities abusing personal data they collected in good faith.
Personal data protection is crucial for freedom of choice and freedom of expression. People are unable to express themselves freely in the presence of watchful eye on everything that you are doing, browsing on the Internet for example. Inevitably, this has a chilling effect on activists, human rights defenders and other vulnerable communities as these groups can easily be targeted by both state and non-state actors.
The mass collection of personal data in the absence of data protection law should be of concern to all Malawians as it has the capacity to allow state surveillance. Furthermore, the mandatory SIM card registration in the absence of data protection laws means that our private communication, online and offline can easily be violated by both state and non-state actors. As with the mandatory SIM card registration, governments usually use security to introduce laws and policies. But you cannot protect people on one hand while violating other rights and freedoms on the other. Security and civil liberties can and do coexist and it is the obligation of the state to balance the two.
*Note: this article is informed by Internet freedom and digital rights training for CSOs I coordinated and co-facilitated in Lilongwe (30-31st July 2019) on behalf of The Collaboration on International ICT Policy in East and Southern Africa (CIPESA).
This article was originally published in The Nation