By Emmanuel Muwamba – The Media Council of Malawi has raised a red flag over the amendment of the Penal Code on Friday saying the provision gives arbitrary exercise of power to the minister who invariably is a political appointee and a politician.
In a statement released on Friday, MCM says the provision also gives the minister powers of judgement of what constitutes public interest. The statement is signed Rev. Patrick Semphere and George Dambula, the MCM national governing council chairperson and executive director respectively.
The proposed amendment to section 46 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 publication.”
But Minister of Information Symon Vuwa Kaunda in an interview on Sunday said government is not reinventing the wheel. “We are not inventing anything new. In fact, the Minister of Justice clarified the position in Parliament on Friday,” said Kaunda.
In the statement, MCM says it is of the view that government should have exhausted alternative means of resolving problems with print media instead of resorting to proposing this law.
“Through the Media Council, practitioners in the country are making serious efforts to enforce a code of conduct and promote quality media services in order to minimise unprofessional conduct in the media. Government, through Parliament, needs to support and give these efforts a chance before resorting to state intervention.
“The Council believes the provision permits arbitrary exercise of power on the part of the minister who invariably is a political appointee and a politician. The provision also gives the minister powers of judgement of what constitutes public interest. Furthermore, the bill might be irrelevant as it duplicates the role of the Censorship Board, a comparatively independent body whose statute was reviewed and updated by the Law Commission,” reads the statement.
The Ministry of Justice Solicitor General who is secretary for Justice Anthony Kamanga, SC, in a statement on same day (Friday) said the Ministry supports freedom of the press, but stands for a responsible press.
He said the amendment of section 46 as contained in the Penal Code (Amendment) Bill, 2009 applies the test of reasonableness to the Minister’s decision, as recommended by the Law Commission.
“Unlike under the current section 46, the amendment requires that the Minister provides reasonable grounds for any decision to prohibit the publication or importation of any publication. Furthermore, the exercise of ministerial power under the proposed new section 46 of the Penal Code is subject to judicial review by the Courts in Malawi,” said Kamanga in the statement.
He clarified that the Law Commission on the Review of the Penal Code in its report dated 28th June, 2000, reviewed section 46 of the Penal Code and noted that the section left too much discretion to the executive branch of Government in controlling importation and production of publications.
The Commission, accordingly, recommended that in order to protect fundamental freedoms in the Constitution, such as freedom of expression and freedom of opinion, the power of the Minister should be subjected to the test of reasonableness, and further that section 46 of the Penal Code should be replaced with a new section which should read as follows-
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 nor importation of such publication.”
“It should be noted, therefore, that the proposed amendment of section 46 of the Penal Code is based on a recommendation of the Commission; is an improvement of the current section 46 of the Penal Code which places absolute powers in the Minister; and takes into consideration fundamental freedoms as enshrined in the Constitution