ACCESS TO INFORMATION BILL

(MALAWI)

The object of this Bill is to —

(a) provide for the right of access to information;

(b) define the scope of information that public has a right to access;
(c) establish the Public Information Commission
and define its functions;
(d) promote transparency and accountability of public officers; and
(e) provide for matters connected with or incidental to the foregoing.

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__________________________________________________________

ACCESS TO INFORMATION BILL

ARRANGEMENT OF CLAUSES
PART I
PRELIMINARY
Section
1. Short title
2. Interpretation
3. Application
4. Invilidality of laws incosistent with this Bill

PART II
RIGHT OF ACCES TO INFORMATION
5. Right of access to information
6. Restriction of limitation of right of access to information
7. Exemption from disclosure
8. Determination of exemption
9. Protection of Privacy
10. Protection of confidential security and other state interests
11. The right of employee to disclose information
12. Protection of confidential commercial information
13. Severability of information

_________________________________________________________
 PART III

OBLIGATION TO PROVIDE INFORMATION6

14. Obligation to keep records

15. Obligation to disclose information that is requested
16. Obligation to publish certain information
17. Appointment of information officers

PART IV
THE INDEPENDENT PUBLIC INFORMATION COMMISSION

18. The Commission

19 Appointment and Composition Commission
20. Functions of Commision
21. Powers of Commission
22. Immunity of Commission and other persons
23 Removal of member of Commission
24. Director of Public of Commission
25. Commission Staff
26. Funds of the Commission

PART V
PROCEDURE FOR ACCESS TO INFROMATION
27. Request for access to public information
28. Notice where access to records is requested
29. Means by which communication is to be made
30. Transfer of requests
31. Fees and other charges
32. Refusal of request
 PART VI
REVIEW OF DECISION OF HOLDERS OF INFORMATION

33. Right to review of decisions of holders of information

34. Commission’s right of access to information
35. Evidence in other proceedings
36. Findings and recommendations of Commission
37. The right of the applicant and third parties to receive report
38. Access granted during or after review

PART VII

MISCELLANEOUS PROVISIONS

39. Proceedings on failure by holder of information to comply with the Act

40. Report by Commission to National Assembly
41. Offences and penalties
42. Regulations

FIRST SCHEDULE
Authorities and office holders to which this Act applies

SECOND SCHEDULE
Part 1: Exempt organisations
Part 2: Exemptions of particular documents
_____________________________________________________________________________________________
 Access to Information 7

An Act to provide for the right of access to information; to define the

scope of public information the public has the right to access; to
esatablish the (Independent ) Public Information Commission and
define its functions; to to promote transparency and accountability of
public officers; and to provide for matters connected with or incidental
to the foregoing.

ENACTED by the Parliament of Malawi

PART I
PRELIMINARY
1. (1) This Act may be cited as the Access to Information Act.
(2) This Act shall come into operation on such date as the
Minister may, by statutory instrument, appoint provided that the
Minister shall not appoint a day that is later than six months after
the passing of the Act.
2. In this Act, unless the context otherwise requires—
“ appointments committee ” means an appointments
committee appointed under paragraph 3 of the First
Schedule;
“ Chairperson ” means the person appointed as Chairperson under
section five; Short title
5 “ Commission ” means the Commission established under
section five; “ Director ” means the person appointed
as Director under section nine;
“ head of a public authority ” in relation—
(a) to a government Ministry or department means the
10 Principal Secretary or any other person so Interpretation
designated; or
(b) to a parastatal or other organisation means the Chief
Executive Officer;
“ information ” means any material which communicates facts,
15 opinions, data or any other matter relating to the
management, administration, operations or decisions of a
public authority, regardless of its form, characteristics or
when it was created;
“ local authority ” means a council established under the Local
20 Government Act and any other authority declared by Act
of Parliament to be a local authority;
 8 Access to Information

“ member ” means a person appointed as a member of the

Commission under section six;
“ personal information ” means information relating to an
individual who is directly or indirectly identifiable by name,
identification document or through any physical or other 5
characteristics or attributes, but does not include information
having a bearing on the public functions of an employee of a
public authority or any other person performing a function of
a public authority;
“ public authority ” means any person holding an office, or any 10
body, specified in the Second Schedule;
“ record ”includes —
(a) any document, manuscript or file in any form;
(b) any microfilm or facsimile copy of a document;
(c ) any reproduction of an image embodied in such 15
microfilm, whether enlarged or not; and
(d) any other material held and produced by a
mechanical, electronic or other device and which
is capable of being reproduced.
3. (1) This Act applies to information under the control of public 20
authorities regardless of whether that information came into existence
before or after the commencement of this Act.
(2) This Act shall not apply to—
(a) information governed by confidentiality or privilege, to the
extent to which the disclosure of the information is 25
regulated, prohibited or restricted by the ethics of a
profession or practice;
(b) records relating to proceedings before a court or tribunal
Application after the commencement of those proceedings; or
30

4. (1) Notwithstanding the provisions of any other written law

in force immediately before the commencement of this Act
prohibiting, restricting or providing for disclosure of information
under the control of a public authority shall have no effect to the 35
extent to which those provisions are inconsistent with this Act.
(2) In any law enacted after the commencement of this Act
(other than a law amending this Act), any provision restricting the
rights and obligations provided for in this Act shall have no effect.
40
PART II
 Access to Information 9
RIGHT OF ACCESS TO INFORMATION Invalidity of
laws
5 (1) Subject to this Act — incosistent
(a) every person shall have the right of access to information with this bill
which is under the control of a public authority;
5
(b) every public authority shall make available to the general
public or, on request, to any person information which is
under its control;
(c ) every public authority shall make available to the general
public or, on request, to any person access to public
meetings or to places where information may be
10 obtained; and
(d) every private body shall make available, on request,
Right of
information which it holds on the person requesting for Access to
the information, if reasonable evidence is shown information
regarding the purpose of the request.
(2) A person who requests for information in pursuance of the
15
right in subsection (1) need not give any reason or justification for re
that person’s interest in the information being requested for. R
(3) For the purposes of this section “ person ” means a citizen
or permanent resident of Malawi.
6. A public authority shall not be required to disclose information
20
which is determined to be exempt from disclosure under this Act.
7. Information requested under this Act shall be deemed to be
exempt from disclosure only if the public authority which has control ReRe
of the information -
25 (a) claims an exemption under section eight, nine, ten,
eleven, or twelve for all, or for any part of, the
information; and
(b) determines, in accordance with section sixteen, that the
disclosure is not justified in the public interest.
30 8. A public authority shall claim an exemption where it Restriction of
Re limitation of
reasonably determines that the information requested, including right of access
personal information, involves the private interests of a third party. to information
9. A public authority may claim an exemption where disclosure Exemption
of information under this Act — from
35 disclosure
(a) would, or could, reasonably be expected to cause damage
to the security of Malawi , the defence of Malawi or ntriction
would divulge any information or matter which relates
to the defence or security of a foreign government and
 10 Access to Information

which is communicated in confidence by or on behalf of

such foreign government; or
Determination (b) would or could reasonably be expected to disclose, or
of exemption enable a person to ascertain, the existence or identity of
a confidential source of information in relation to the 5
enforcement or administration of the law or endanger
Protection of
the life or physical safety of any person;
privacy
(c) would or could reasonably be expected to cause substantial
harm to the legitimate interests of Malawi in crime
prevention and any preliminary investigation of crime or 10
other unlawful acts; and
(d) would or could reasonably be expected to cause substantial
harm to the legitimate interests of Malawi in the
protection of the deliberative process of a public authority
insofar as it involves the expressing of an opinion, advice 15
or recommendation by a public authority, an employee
thereof, or any person acting for or on behalf of the
public authority but not in respect of factual, statistical,
scientific, or technical information.
20
10. (1) A public authority shall disclose the information
requested notwithstanding that it has claimed an exemption under
section eight, nine and twelve where to do so would be justified in
the public interest having regard to both any benefit and harm that
may accrue from doing so.
25
(2) In determining whether disclosure is justified in the public
interest, the public authority shall have regard to considerations
such as obligations to comply with legal requirements, the prevention
of the commission of offences or other unlawful acts, miscarriage
of justice, abuse of authority or neglect in the performance of an
official duty, unauthorised use of public funds, the avoidance of 30
Protection of wasteful expenditure of public funds or danger to the health or
confidential safety of an individual or the public, or the need to prepare and
security and protect the environment, and the need to improve public participation
other state
in, and understanding of, public policy making.
interests 35
(3) If disclosure of the information in respect of which a public
authority has claimed an exemption under section nine or ten
is determined to be in the public interest, the public authority shall
notify the third party in writing that the information shall be disclosed
upon the expiry of fifteen days from receipt of the notice, and 40
inform the third party of that party’s right to a review, the authority
with which an application for review should be lodged, the period
 Access to Information 11

within which the application may be lodged and the cost of filing an
application.
11. (1) Notwithstanding the provisions of this Act or of any other
written law an employee of a public authority may disclose to the
5
Commission, or any other authority which has power to act upon
the information disclosed, or any other authorised person the contents
of a document, communication or information which exposes the
wrongdoing of another employee or officer of the public authority,
whether or not that employee came across the information in the
10 course of that employee’s duties.
(2) No action, disciplinary or otherwise, shall lie and no
proceedings may be brought against any employee who discloses
information under subsection (1) for damages resulting from —
Right of employees (a) the disclosure in good faith of all or part of a record; or
to disclose 15
(b) consequences arising from such disclosure.
information
(3) For purposes of subsection (1) “wrongdoing” means
fraudulent, dishonest or criminal conduct or maladministration.
12. Where a public authority reasonably determines that a request
20 for access to information involves the confidential commercial
interests of a third party, the authority shall forthwith notify the
third party in writing of the specifics of the request and that the
disclosure of the information is imminent unless the third party,
within fifteen days of receipt of the notice, responds in writing that
25 it considers the information to be confidential and gives reasons as
to why harm would result from disclosure; and upon receipt of
such response the authority shall claim an exemption.

Protection of
confidential 30 13. If a public authority determines that part of the information
commercial requested is exempt from disclosure, the authority shall disclose
information
the remainder of the information which is not exempt from disclosure
and shall, accordingly, inform the person who made the request for
the information.

35 PART III
OBLIGATION TO PROVIDE INFORMATION
14.(1) Every public authority shall maintain complete records
 12 Access to Information

Severability of and documents, to which this Act applies, that are under the control
information of the public authority.
(2) The public authority shall maintain every such record for a
period of ten years after the date on which the document is
generated by the public authority or on which the document or 5
record comes under the control of the public authority.
(3) The Commission may at all reasonable times examine any
record maintained in accordance with subsection (1).

Obligation to 10
15.Obligation to disclose information that is requested.
keep record

Subject to this Act, every public authority shall grant any person
who so requests access to any information that the public authority
holds.
15
16.(1) Subject to the other provisions of this Act, every public
authority shall cause to be published, as soon as practicable after
the commencement of this Act but not later than twelve months
after that commencement, by Gazette notice and in a newspaper
of general circulation in Malawi, a publication that includes —
(a) a description of its structure, functions, and responsibilities 20
including those of any of its statutory officers or advisory
committees;
(b) a general description of the categories of documents held
by it;
25
(c) a description of all manuals, and similar types of documents
in or under this Act.
Obligation to
(d) a statement of any information that needs to be made available
publish certain
information to members of the public who wish to obtain official information
from the public authority which statement shall include particulars
of the officer or officers to whom requests for official information
30
or particular classes of information should be sent.
(2) In complying with subsection (1) the public authority shall
have regard, among other things, to the need to assist members of
the public to obtain official information and to effectively exercise
their rights under this Act.
35

(3) Where there is good reason under section nine of this Act
for withholding official information, nothing in this section requires
the publication of that public information. 40
(4) The Commission may, from time to time, give directions to
 Access to Information 13

public authorities regarding the form in which the information

referred to in subsection (1) shall be published and prescribe model
publication schemes in relation to public authorities falling within
particular classes.
5 (5) The failure of a public authority to publish information under
subsection (1) shall not prejudicially affect the right of access to
information under the control of a public authority as provided for
in or under this Act.
(6) A public authority —
10 (a) shall, from time to time, publish any substantial changes
to the information required to be published under
subsection (1); and
(b) may, at any time, publish any other information, in addition
to the information required to be published under
subsection (1), relating to its functions as it considers
15
appropriate.
(7) A person entitled to the right of access to information under
this Act has the right to institute proceedings in a court to compel
the head of a public authority to comply with the provisions of this
section.
20
17. (1) Every public authority shall, for purposes of this Act -
(a) appoint one or more officers as media liason officers; and
(b) establish procedures to deal efficiently with requests for
information.
25 (2) Media liason officer appointed under subsection (1) shall
deal with requests made under section twenty-seven and render
assistance to any persons seeking such information.
(3) Media liason officer may seek the assistance of any other
officer to assist that information officer in the discharge of the
information officer’s duties under this Act. Appointment
30 of information
officers

35 PART IV
THE PUBLIC INFORMATION COMMISSION

A
Q
 14 Access to Information

18. (1) There is hereby established the Public Information

Commission which shall be a body corporate with perpetual
succession and a common seal, capable of suing and of being sued
in its corporate name, and with power, subject to the provisions of
the Act, to do all such things as a body corporate may by law 5
perform.
(2) The provisions of the First Schedule shall apply to the
Commission.
19. (1) The Commission shall consist of the following reputable
The part-time members: 10
Commission
(a) a judge of the High Court nominated in that capacity by
the Juducial Service Commission;
(b) an ex-officio from the Ministry of Information;
c (c ) a representative of non-governmental nominated by the
15
Council the council of Non-governmental Organisational;
(d) a media practitioners nominated by media organisations
two members who shall be reputable persons.

Appointment
(2) Members of the Commission shall be appointed only if their
and nominations are approved by the Public Appointments Commitee 20
Composition of the national Assembly.
of
Commission
(3) The Chairperson and the Vice-Chairperson shall be elected
by the members from among their number.
(4) A person shall not be appointed as a member of the 25
Commission if that person —
(a) is not a citizen of Malawi
(b) is not permanently resident in Malawi;
(c ) is a public servant or a holder of any remunerated position
e
under the state; 30
(d) is a member of Parliament or of a district, municipal or
city assembly; or
(e) is an office-bearer in or an employee of a political party.
 Access to Information 15

20 (1) The functions of the Commission shall be —

(a) to ensure that the purposes of this Act are effectively
carried out;
(b) on request —
(i) act as a conduit for requests for access to
5 information from members of the public;
(ii) identify the relevant public authority; and
(iii) collect the requested information;
(c ) assist in realising the right to amend or comment on personal Functions of
information held by a public authority; Commission
10 (d) to receive, and consider applications for review of decisions
of public authorities relating to access to information by
persons requesting for information under this Act and
applications for review by those persons or by third
parties;
15 (e) to make recommendations to the relevant public authorities
resulting from the review of applications referred to in
paragraph (b); and
(f) to perform such other functions as are conferred upon the
Commission by or under this Act.
20 (2) The Commission shall publish, every year, in a form accessible
to the general public, a guide which shall include —
(a) the objectives of this Act;
(b) the contact details of the Commission;
(c ) the methods of applying for information; and
(d) the assistance which is available to the public from the
25
Commission.
(3) The Commission shall be independent in the performance
of its functions and shall not be subject to any direction, or political
interference, by any person.
30 21. (1) The Commission may, for the purpose of performing
its functions under this Act —
(a) give directions of a general nature to public authorities in
connection with the performance of their functions under
this Act;
35 (b) carry out investigations relating to applications for review
made under section twenty-nine;
(c ) administer oaths, and hear and receive evidence;
(d) enter and inspect premises to which an application for
 16 Access to Information

Powers of review relates;

Commission (e) question any person, whether or not that person is employed
by the public authority to which the application for review
relates; or
(f) inspect, make copies of, and take extracts from any book, 5
record or document relevant to the review.
(2) A person summoned to appear before the Commission who,
without sufficient cause —
(a) refuses or fails to attend at the time and place specified in
the summons or, having attended, is absent from the 10
proceedings without the permission of the Commission;
(b) having attended, refuses to be sworn or to affirm;
(c ) refuses, without lawful excuse, to answer to the best of that
person’s knowledge any question lawfully put; or
(d) refuses to produce any book, record or document which 15
that person has been required by summons to produce;
commits an offence and is liable, on conviction, to a fine not
exceeding K5,000 or to imprisonment for a period not exceeding
three months or to both.
(3) A person summoned before the Commission shall not be
compelled to answer any question or to produce any book, record, 20
document or thing which that person would not be compelled to answer
or produce in proceedings before a court.

22.Notwithstanding any other law, no civil or criminal proceedings 25

shall lie against any member or member of staff of the Commission,
a public authority or a person acting on their behalf, for the disclosure
of any information or for any other act done in good faith pursuant
to this Act.

30
Immunity of 23 (1) A person appointed to the Commision shall serve a
Commission continuous term not more than three years, provided that the Public
and other appointments Committe may appoint that person for such further
members
terms of three years as it considers appropriate unless that commiitee
persons
sooner terminates that appointment in accordnce with this section.
35
(2) A person appointed to the Commission shall not be
 Access to Information 17

removed by the Public Appointments Commitee,

except- RRemoval of
(a) in such circumstances that person would have been disqulified members of
from being appointed; commision
5 (b) for gross misconduct; eIimmunity
(c) on reaching the age of sixty-five years. munity of
24. (1) The Commission shall appoint a Director on such Commission
terms and conditions as the Commission may determine. and other
(2) The Director shall be the Chief Executive Officer of the
persons
10 Commission and shall, under the direction of the Commission, be
responsible for the —
(a) management and administration of the Commission; and
(b) implementation of the decisions of the Commission.
Director of
(3) The Director shall be the Secretary to the Commission. Public
15 (4) The Director shall be appointed for a period of three years Commission
and may be eligible for re-appointment.
25. The Commission may appoint, on such terms and
conditions as the Commission may determine, such other staff of
the Commission as it considers necessary for the performance of
20 its functions under this Act.

26. (1) The funds of the Commission shall consist of such

moneys as may —
Commission
(a) be appropriated by Parliament for the purposes of the Staff
25 Commission;
(b) be paid to the Commission by way of grants or donations;
and
(c) vest in or accrue to the Commission.
Funds of
(2) The Commission may— Commission
(a) subject to the approval of the National Assembly, accept
30 moneys by way of grants or donation from any source;
and
(b) subject to the approval of the National Assembly, raise,
by way of loans or otherwise, such moneys as it may
require for the discharge of its functions.
35 (3) There shall be paid from the funds of the Commission —
(a) the salaries, allowances and loans of the staff of the
Commission;
(b) such reasonable travelling, transport and subsistence
allowance for the members and members of any
40
committee of the Commission when engaged in the
business of the Commission, and at such rates as the
 18 Access to Information

Commission may determine; and

(c) any other expenses incurred by the Commission in the
performance of its functions.
(4) The Commission may invest in such manner as it thinks fit
such of its funds as it does not immediately require for the 5
performance of its functions.
PART V
PROCEDURE FOR ACCESS TO INFORMATION
10
27. (1) A request for access to information may be made orally
or in writing and shall be addressed to the head of the public authority
or any other authorised person:
Provided that a person may request the Commission to obtain the
information from a public authority on that person’s behalf.
15
(2) The request for information shall provide sufficient details
to enable the public authority to identify the information and shall
include the name and address of the person requesting for the
information:
Request for
Acces to Provided that where the applicant is unable to write the request for
Public information shall bear the thumb print of the applicant. 20
information (3) For purposes of subsection (1) a request shall be treated as
made in writing where the text of the request —
(a) is transmitted by electronic means;
(b) is received in legible form; and
(c ) is capable of being used for subsequent reference. 25
28. (1) Where access to a record is requested, the head of the
public authority or any other authorised person to which the request
is made shall, subject to section twelve and the other provisions of
this Act, within fifteen (15) days after the request is received -
(a) give written notice to the person who made the request 30
as to whether the record exists and, if it does, whether
access to the record or a part thereof will be given; and
(b) if access is to be given, promptly give the person who
made the request access to the record or a part thereof
Notice where
access to
in the form of a copy or an opportunity to examine the 35
information is record.
reqested (2) If a public authority requires further information in order to
identify and locate the information requested, it shall notify the
applicant of the need for such further information within seven
days of receiving the request for information and, in that case, the 40
 Access to Information 19

period of fifteen days referred to in subsection (1) shall be reckoned Means by

from the date on which such further information is received. which
communicaion
is made
29. (1) A public authority may provide information
5 requested for by an applicant by any one of the following
means, having regard to all the circumstances, including the
cost of providing the information, namely:
(a) the provision of a copy of the information in permanent
form or in another form acceptable to the applicant;
(b) the provision of a reasonable opportunity to inspect a record
containing the information;
10
(c ) the provision of a digest or summary of the information; or
(d) in the case of an applicant with a sensory disability, by the
Means by
provision of a record in a format that allows the person to which
read or listen to the record of the information. communication
(2) Notwithstanding subsection (1), a public authority may provide is to be made
15
information orally where the applicant on making the request for
information requests that the information be so provided.
30. (1) Where a public authority to which a request for
information is made considers that another public authority has a
greater interest in the information requested for, the head of the
20
public authority to which the request is initially made may, within
seven days after the request is received, transfer the request to the
other public authority and give written notice of the transfer to the
person who made the request.
(2) For the purposes of subsection (1) —
25
(a) the periods specified in section twenty-eight shall apply
to the public authority to which the request is transferred Transfer of
with effect from the date on which the transferred requests
request is received; and
(b) a public authority has a greater interest in information
30
requested if —
(i) the record containing the information was
originally produced in or for the public authority;
or
(ii) in the case of a record not originally produced in
35
or for the public authority, the public authority
was the first recipient of the record or a copy
thereof.
31. (1) A person who makes a request for information through
40 the commission may be required to pay such fees and charges for
 20 Access to Information

the cost of examination or reproduction of the information as the

Commission may, by regulations, prescribe.
(2) Regulations made under subsection (1) may provide —
(a) that no fee shall be payable in prescribed cases; and
(b) that any fee shall not exceed such maximum fee as may 5
be specified in, or determined in accordance with, the
regulations.
32. (1) Where a public authority refuses to give access to
Fees and other information requested, either in whole or in part, the public authority
charges 10
shall, in writing, notify the person requesting for the information of
the refusal and shall, in the notification —
(a) set out the grounds for the refusal and all material issues
relating to the decision, including the specific provisions
of this Act and the factors taken into consideration in
15
relation to the public interest;
(b) inform the applicant of the availability of a review, the
authority with which an application for review may be
Refusal of lodged and the period within which an application for
request review may be made; or
20
(c) if the record of the information requested does not exist,
inform the applicant to that effect.
(2) Where a public authority fails to give access to information
requested within the time limits set out in this Act, the public authority
shall be deemed to have refused to give access to the information.
25
PART VI
REVIEW OF DECISIONS OF PUBLIC AUTHORITIES
33. (1) A person who, having made a request for the disclosure
of information under this Act, is aggrieved by the decision of a 30
public authority in relation to the request may apply to the
Commission for a review of that decision in respect of any of the
following:
(a) the refusal of access by the public authority to the
information requested;
35
(b) the payment of fees or charges levied under section twenty-
eight which the person considers unreasonable;
(c) the failure of the public authority to comply with the time
limits set out in section twenty-eight:
Review of
decisions (d) any other matter relating to a request for or access to 40
information under this Act.
(2) A third party that is of the opinion that the party’s interests
referred to in section eight or twelve are, or are likely to be,
 Access to Information 21

adversely affected by the decision of a public authority in relation

to information requested under this Act may apply to the
Commission for a review of that decision and shall be given an
opportunity to make representations during the review.
5 (3) The Commission shall, within thirty days of receiving an
application under subsection (1) or (2), consider such application
and may within that period inquire into or investigate such application
as the Commission may consider necessary.
(4) A review under subsection (2) shall be conducted in
Report to
10 accordance with such regulations as the Commission may, by applicant and
statutory instrument, prescribe. third parties
(5) An application for review under this Part shall be made in
writing unless the Commission authorises that it may be made orally
and may be made not later than one year from the date on which the
request for information was received by the public authority concerned.
15 (6) Subject to subsection (7), the review of a decision of a public
authority under this Act shall not be construed as precluding a person
who makes a request for the review (including a third party) from
making a complaint or allegation to the Malawi Human Rights
Commission under the Human Rights Act, 1998 or from making an Access
20 application for redress to the High Court against a public authority granted
or the Commission, or both, in relation to that person’s right of during or
after review
access to information or the right not to have the information
disclosed.
(7) A complaint or allegation to the Malawi Human Rights
25 Commission or an application to the High Court shall not be made
by a person unless proceedings for review under this Part have
been concluded.
(8) For the purpose of subsection (7) proceedings for review
are concluded -
(a) when an individual who made an application for those
proceedings dies;
30 (b) in the case of a person other than an individual, when that
35.
person ceases to exist;
(c) when the period specified by the Commission under
paragraph (b) of section 27 lapses;
(d) in the case of a third party, on the date on which that party
35 receives a copy of the Commission’s report made under
section 27; or
(e) when an application is withdrawn by the applicant or is
dismissed by the Commission.
 22 Access to Information

34. Notwithstanding any other law or any privilege under the

law of evidence, the Commission may, during investigations relating
to any application for a review under this Part, examine any record
to which this Act applies that is under the control of a public authority,
and no such record may be withheld from the Commission on any 5
grounds.
35. Except in a prosecution of a person for an offence of
perjury [or contempt] in respect of a statement made under this
Act evidence given by a person in proceedings under this Act is
inadmissible against that person in a court or in any other
proceedings. 10
Commission’s
right of
36. (1) If after the consideration of an application for review
access to the Commission finds—
information (a) that the applicant is entitled to the disclosure of the
information requested, the Commission shall provide the
head of the public authority concerned a report 15
containing—
Evidence in
in other (i) the findings of the review and the recommendations
proceedings of the Commission; and
(ii) a request that, within a time specified in the report,
notice is to be given to the Commission of any
action taken or proposed to be taken to 20
implement the recommendations in the report
Findings and or reasons why no such action has been or is
recommendations proposed to be taken.
of the
Commission (b) that the applicant is not entitled to the disclosure of the
information requested, the Commission shall, within
seven days of making the decision, so inform the 25
applicant in writing stating the reasons for the finding
and also inform the applicant of the right to appeal to
the High Court.
(2) The Commission shall give a copy of the decision made
under paragraph (b) of subsection (1) to the head of the public
authority concerned.
37. (1) The Commission shall, after conducting a review, provide
a copy of the report made under section 36 to the applicant, and to 30
any third party, that made representations to the Commission after
the expiration of the period specified by the Commission under
paragraph (b) of section 36..
(2) The Commission shall also inform the applicant whether the
35
public authority concerned has taken action or proposes to take
 Access to Information 23

action to comply with the Commission’s recommendations and may

make such comments on the subject matter of the review as the
Commission thinks fit.
38. Where, during or after the consideration of an application
5 Right of
for review, the head of a public authority notifies the Commission applicant and
that access to information requested will be given to an applicant, third parties to
the head of the public authority shall give the applicant access to receive report
the information —
(a) within seven (7) days of the notification, if no notice has
10 been given to a third party under section 12; or
(b) within fourteen (14) days after the notification, if notice
has been given to a third party under section 12.

PART VII Access granted

MISCELLANEOUS PROVISIONS during or after
15 review
39. (1) If at any time it appears to the Commission that a public
authority has failed to comply with the provisions of this Act (or with
a decision of the Commission), the Commission may, by notice in
writing, require the public authority to make good the default within
20 a specified time.
(2) If the public authority fails to comply with the notice referred
to in subsection (1), the Commission shall apply to the High Court for
an order compelling the public authority to remedy the default and the
Court may make such order on the application as it thinks fit.
40. (1) The Commission shall as soon as possible after the end
25 of each financial year make a full report to the National Assembly
on the exercise and performance by it of its functions during that Proceedings on
year. failure by
public
(2) The Commission may, at any time, require a public authority authority to
to make a report to the Commission regarding the general comply with
compliance by such public authority with this Act. Act
30
41. Any person who wilfully conceals, destroys, mutilates,
falsifies or otherwise alters a record containing information which
has been requested with intent to prevent disclosure of the
information commits an offence and is liable, on conviction, to a
Report by
35 fine not K10,000 or to imprisonment for a term not exceeding five Commission
years. to National
Assembly
FIRST SCHEDULE
(Section 6)
 24 Access to Information

PART I
ADMINISTRATION
Offences and
penalties 1. (1) The seal of the Commission shall be such device as may
be determined by the Commission and shall be kept by the Secretary.
5
(2) The affixing of the seal shall be authenticated by the
Chairperson or the Vice-Chairperson and the Secretary or one other
person authorised in that behalf by a resolution of the Commission.
(3) Any document purporting to be a document under the seal of
the Commission or issued on behalf of the Commission shall be
received in evidence and shall be executed or issued, as the case
may be without further proof, unless the contrary is proved. 10
2. (1) A member referred to in subsection (1) of section six
shall be appointed for a term not exceeding three years, on the
Seal of
recommendation of the selection committee:
Commission Provided that the first members shall be appointed for periods
ranging from two to three years in order to facilitate retirement by 15
rotation.
(2) A member referred to in subsection (1) may resign upon
giving one month’s notice, in writing, to the National Assembly.
(3) The appointments committee of the National Assembly may
remove a member if — 20
(a) the member is insane or otherwise declared to be of
Tenure of
office unsound mind; or
(b) the member is declared bankrupt.
3. (1) There shall be an appointments committee comprising
members of the committee of the National Assembly responsible for 25
public appointments, appointed by the Speaker for purposes of
subsection (1) of paragraph 2.
(2) The chairperson of an appointments committee shall be
appointed by the Speaker.
(3) The members of an appointments committee shall be 30
appointed on such terms and conditions as the Speaker may
determine.
(4) The functions and powers of an appointments committee
shall be—
Appointments 35
(a) to invite nominations from persons with such qualifications
committee
as may be specified for appointment to the Commission:
 Access to Information 25

Provided that the appointments committee may

invite nominations from civic organisations of persons
with the specified qualifications;
(b) to prepare a short list of candidates from applicants and
5 persons nominated under paragraph (a); and
(c) to interview persons short listed under paragraph (b).
(5) The interviews for the selection of candidates for
appointment to the Commission shall be conducted in sessions open
to the public:
10 Provided that prior to conducting the interviews referred to in
this subsection the appointments committee shall publish a notice,
in a daily newspaper of general circulation in Malawi, stating the
date and time of, and place for the interviews.
(6) The appointments committee shall make a recommendation
15 to the National Assembly on the persons to be appointed to the
Commission following the interviews referred to in subsection (5).
4. Whenever the office of a member becomes vacant before
the expiry of the term of office the National Assembly may appoint
another person to be a member in place of the member who vacates
20 the office for the unexpired term of that office.
5. A member shall be paid such allowances as the Commission
may, with the approval of the National Assembly, determine.
6. (1) Subject to the other provisions of this Act, the Commission
25 may regulate its own procedure.
(2) Three members shall form a quorum at any meeting of the
Commission.
(3) There shall preside at any meeting of the Commission — Filling of
30 (a) the Chairperson; or casual
vacancy
(b) in the absence of the Chairperson, such member as the
members present may elect for the purposes of that
meeting
Alowances of
(4) A decision of the Commission on any question shall be by members
35 a majority of the members present and voting at the meeting and in
the event of an equality of votes, the person presiding at the meeting Proceedings of
Commission
 26 Access to Information

shall have a casting vote in addition to that person’s deliberative

vote.
(5) The Commission may invite any person, whose presence
is in its opinion desirable, to attend and to participate in the
deliberations of the meeting of the Commission, but such person
shall have no vote. 5
(6) The validity of any proceedings, acts or decisions of the
Commission shall not be affected by any vacancy in the membership
of the Commission or by any defect in the appointment of any
member or by reason, that any person not entitled to do so took
part in the proceedings. 10

7. (1) The Commission may, for the purpose of performing its

functions under this Act, establish such committees as it considers
necessary and delegate to any of those committees such of its
functions as it considers fit. 15
(2) The Commission may appoint as members of a committee,
persons who are, or are not, members, except that at least one
member of a committee shall be a member.
(3) A person serving as a member of a committee shall hold
office for such period as the Commission may determine. 20
(4) Subject to any specific or general direction of the
Commission, a committee may regulate its own procedure. 25
8. (1) If any person is present at a meeting of the Commission
Committes
or any committee at which any matter is the subject of consideration
and in which matter that person or that person’s spouse is directly
or indirectly interested in a private capacity, that person shall as
soon as is practicable after the commencement of the meeting, 30
declare such interest and shall not, unless the Commission or the
committee otherwise directs, take part in any consideration or
discussion of, or vote on any question touching such matter.
(2) A declaration of interest made under subsection (1) shall
be recorded in the minutes of the meeting at which it is made.
(3) A person who contravenes subsection (1) shall be guilty of 35
an offence and shall be liable upon conviction to a fine not exceeding
Declaration of ten thousand penalty units or to imprisonment for a term not
Interest exceeding three years or to both.
9. (1) A person shall not without the consent in writing given
 Access to Information 27

by, or on behalf of, the Commission, publish or disclose to any

person otherwise than in the course of the person’s duties, the
contents of any document, communication, or information which
relates to, and which has come to the person’s knowledge in the
5 course of the person’s duties under this Act.
(2) Any person who contravenes subsection (1) shall be guilty
of an offence and shall be liable upon conviction to a fine not
exceeding ten thousand penalty units or to imprisonment for a term
not exceeding three years or to both.
10 (3) If any person having information which to that person’s
Prohibition of disclosure of knowledge has been published or disclosed in contravention of
information subsection (1) unlawfully publishes or communicates any such
information to any other person, that person shall be guilty of an offence
and shall be liable upon conviction, to a fine not exceeding ten
thousand penalty units or to imprisonment for a term not exceeding
three years or to both.
PART II
FINANCIAL AND OTHER PROVISIONS
10. The financial year of the Commission shall be the period
of twelve months ending on 30th June in each year.
11. (1) The Commission shall cause to be kept proper books
of account and other records relating to its accounts.
(2) The accounts of the Commission shall be audited annually
by independent auditor’s appointed by the Commission.
(3) The auditors, fees shall be paid by the Commission.
12. (1) As soon as is practicable, but not later than ninety days
after the end of the financial year, the Commission shall submit to
the National Assembly a report concerning its activities during the
financial year.
Financial Year

Accounts

Annual report
 Access to Information 28
___________________________________________________________________________

(2) The report referred to in subsection (1) shall include information on the
financial affairs of the Commission and there shall be appended to the report -
(a) an audited balance sheet;
(b) an audited statement of income and expenditure; and
(c) such other information as the National Assembly may require.
SECOND SCHEDULE
(Section 2)
PUBLIC AUTHORITIES AND OFFICE HOLDERS TO WHICH THE ACT APPLIES
1. Government Ministries and departments and persons in the public service.
2. Local authorities and persons in the service of the local authorities.
3. Institutions and organisations whether established by or under an Act of Parliament or
otherwise, in which the Government holds a majority of shares or exercises financial or
administrative control and persons in the service of those institutions and organisations.
4. Commissions established by or under the Constitution or any Act of Parliament, except
this Commission, and persons in the service of the Commissions.
5. Quasi-governmental organisations and persons in the service of the quasi-governmental
organisations.
6. Public corporations and persons in their service.
7. Courts in relation to administrative matters and persons in their service.
8. Tribunal in relation to administrative matters and persons in their service.
9. Private bodies carrying out public functions and persons in their service.
10. Religious and sporting organisations in receipt of public funds and persons in the service
of those religious and sporting organisations.
11. Organisations contracted by Government to do work for government and persons in the
service of those organisations.