Malawi

Summary

Malawi has several statutes and laws that address whistleblowing protection, with some providing for whistleblower anonymity, protection from retaliation, and punitive measures for those who punish or retaliate against whistleblowers. However, Malawi does not have a main, comprehensive whistleblower protection act. Additionally, the mechanisms and bodies for putting Malawi’s several incomplete whistleblower protections into place are in some cases nonexistent (for instance, the proper measures to implement the Access to Information Act have apparently not yet been taken) or vulnerable to corruption (for instance, the Anti-Corruption Bureau and the police). Additionally, there is little if any legal framework to compensate or provide restitution for whistleblowers who have suffered retaliation.

Whistleblowers in Malawi have in the recent past been subject to violence and arrest. However, a number of anonymous whistleblowers have recently been reportedly monetarily rewarded for reporting instances of fraud and corruption via the Tip-Offs Anonymous program. Aside from this program, which only rewards whistleblowers whose tips lead to the recovery of revenues, proper reporting channels may be inaccessible or unreliable, and the potential for monetary rewards remains unclear.

Whistleblower laws and policies

A number of Malawian statutes and laws contain provisions that can be utilized to protect whistleblowers in specific instances. For instance, section 51A of the Corrupt Practices Act provides for imprisonment and fines for those who punish or victimize whistleblowers who report a corrupt practice to the Anti-Corruption Bureau or the police; the Act also sets out guidelines to protect said whistleblowers’ identities in court, except in limited circumstances. Section 20 of the Public Officers Bill, the goal of which is to promote public confidence in the public service by requiring public officers to declare assets and business interests, similarly provides for imprisonment and fines for those who punish or victimize whistleblowers who report a public officer’s inaccurate declarations to the Director of Public Officers’ Declarations. This section also sets out guidelines to protect said whistleblowers’ identities in court.

Additionally, section 50 of the Access to Information Act states that a whistleblower who discloses or attempts to disclose information within the public interest upon reasonable suspicion to a law enforcement agency or appropriate public entity shall not be penalized in relation to his/her employment, profession, voluntary work, contract, organization membership, holding of office, or “any other way.” However, as Open Government Partnership notes, the Act does not lay out any punitive measures or restitution measures for whistleblowers who are penalized or victimized for reporting; in addition, because the overseeing body has no enforcement powers, enforcement is essentially left to the often inaccessible and costly courts.

Others contain provisions do not explicitly utilize the term “whistleblower” but seem to indeed be aimed at protecting whistleblowers in specific instances. For example, section 25 of the Financial Crimes Act, while not using the term “whistleblower” itself, forbids a legal or natural person from disclosing any information- except for the purpose of prosecution under the Act itself- that will identify or will likely identify a person who has made or prepared a suspicious transaction report to the Financial Intelligence Authority, with heavy monetary penalties, imprisonment, and revocation of business licenses possible for anyone who does so. The Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act contains a very similar provision in section 31 aimed at protecting those who have made or prepared a suspicious transaction report to the Financial Intelligence Unit.

Furthermore, the second Code of Corporate Governance in Malawi (“Code II”) exists to promote corporate governance principles within all types of organizations across the country. The Code II is considered a “voluntary” code comprised of Overarching Provisions (“OPs”) that were kept sufficiently broad as to apply to all types of organizations. Thus, perhaps due to this broad sort of approach, no specific whistleblowing protections or programs are found within the OPs. However, various OPs address issues such as ethics, good citizenship, sustainability, and external communications, all of which could be read as to touch whistleblowing and related matters to some extent.

Code II also notes that specific sectors may develop, adopt, and promote specific guidelines that may involve more stringent requirements. Consequently, the Reserve Bank of Malawi has devised several such guidelines for banks, insurance companies, and securities market players. While none of these guidelines address whistleblowing directly, all three guidelines do address ethics, transparency, and related issues that could be read as encompassing whistleblowing issues. The guidelines also all contain enforcement provisions with heavy monetary penalties.

Finally, the Tip-Offs Anonymous program also exists as an outlet to allow individuals to anonymously report instances of fraud, bribery, corruption, and smuggling. The program was introduced by the Malawi Revenue Authority in 2010 and is administered by Deloitte, which also administers the program in other African countries and elsewhere. The program allows for informants to report via a toll-free phone number, email, or letter in English or Chichewa. Additionally, informants are ensured “total confidentiality,” as they use an anonymous code to report. The informant receives a monetary award when the tip results in the recovery of revenues, and if the informant is to receive an award, the giver and receiver never meet in order to further protect anonymity. The last financial year for which data is available resulted in over K282 million paid out to informants.

Weaknesses and needed reforms

Though a number of legal whistleblower protections formally exist, there are questions about the extent to which they are actually utilized. For example, though limited, the Access to Information Act has a whistleblower protection provision, as discussed above. However, Freedom House noted in 2019 that, as of then, the government “had yet to take the steps necessary for the 2017 Access to Information Act to come into force.”

An additional issue is that the groups who are themselves entrusted with enforcing statutes and handling whistleblowers are susceptible to corruption and difficult for potential whistleblowers to access. For example, the Corrupt Practices Act’s whistleblower protection provision notes that concerned individuals can make a report to the police or to the Anti-Corruption Bureau, which the Corrupt Practices Act established. However, Freedom House has noted that civil society leaders have accused the Anti-Corruption Bureau, a government department meant to investigate and prevent corruption, of being ineffective and politically compromised. Similarly, there have been concerns about police behavior in Malawi, and in 2016, a Malawian whistleblower who exposed corruption at a public hospital was arrested and later rearrested by police. Other acts, like the Access to Information Act, essentially leave enforcement to the courts, which leads to financial costs and delays that many whistleblowers cannot undertake.

Next, some of the guidelines discussed in the above section lack explicit whistleblower protections. For instance, though the Code II provisions were written to be rather broad, the corporate governance guidelines for banks, insurance companies, and securities market players lack whistleblower protections, even though such provisions would seemingly be appropriate and relevant to include within the guidelines. Additionally, some of the acts listed above, such as the Financial Crimes Act and the Money Laundering Act, do not explicitly use or define the term “whistleblower,” even though the goal of the relevant provisions seems to be to create some- albeit limited- whistleblower protections.

Finally, though some statutes addressing whistleblowing provide for punitive measures for those who retaliate against whistleblowers, it is unclear if any reliable formal channels exist by which the whistleblowers can report the retaliation and receive remedies for any losses suffered.

Overall, to truly protect Malawian whistleblowers, it is necessary but not sufficient to address gaps in the language of, and strengthen the remedies available via, various statutes, laws, and corporate guidelines. The bodies themselves, such as the Anti-Corruption Bureau and the police, entrusted with addressing corruption- and protecting whistleblowers- are themselves corrupt, and this must be addressed.

There are indeed promising programs, like the Tip-Offs Anonymous program, run by the large corporation and outside party Deloitte, which may well help with the internal corruption problem found within internal governmental departments and police forces. But it is necessary to ensure via further outreach and education that the public knows that this program, and potentially other avenues, exist to offer rewards and protection for acting as anonymous whistleblowers. Additionally, it is important to note that the Tip-Offs program only rewards those whose tips lead the recovery of revenue; it is unclear whether whistleblowers whose tips do not lead to investigations may still be rewarded via a different outlet.

Secrecy laws

In Malawi, individuals and the press have constitutional rights of access to information. Article 36 states that the press shall “be accorded the fullest possible facilities for access to public information,” and article 37 states that individuals “shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of [their] rights.”

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) notes, however, that the Official Secrets Act of 1968 limits disclosure of a broad range of information, and that the Preservation of Public Security Act of 1960 prohibits publication of 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.” CIPESA explains that these two laws burden the right to access information; furthermore, the organization explains that some instances- like internet outages on election day or journalists’ articles that strangely went unpublished- are rumored to have been ordered by the government to limit citizens’ access to certain information.

The Access to Information Act, 2016, is meant to provide for and facilitate the right of access to information in the custody of public and some private bodies. However, Freedom House notes that, at least as of 2019, the government “had yet to take the steps necessary for the . . . Act to come into force.”

Media and speech laws

Malawi’s constitutional protections include the right to personal privacy, including the right not to be subject to interference with private communications, including mail and telecommunications; the right to freedom of opinion, including the right to impart and receive opinions without interference; and the right to freedom of expression. Additionally, should an act violate a person’s rights or freedoms, including those listed above, granted to him by the Constitution, the Constitution also guarantees the right to an effective remedy by a court of law or a tribunal.

Regarding the media, Malawi’s Constitution also enshrines the freedom of the press, including the right to report and publish freely, within Malawi and abroad, and the right to access public information via the “fullest possible facilities.”

However, Freedom House notes that in recent years, these constitutional provisions have been threatened, despite the Constitution’s assurance that it is supreme, and that any law or governmental act that is inconsistent with the Constitution shall be invalid. For example, they note the 2016 Cybersecurity Law’s “Prohibition on Offensive Communication,” which itself prohibits willful and repetitive “disturb[ing] or attempt[ing] to disturb the peace, quietness or right of privacy of any person with no purpose of legitimate [electronic] communication” but is worded vaguely enough to in theory be construed broadly and threaten online freedom of speech and press. Relatedly, Freedom House points out civil society leaders’ suspicions that the government monitors citizens’ electronic communications using new technology introduced in 2017. They also note the four-month period in 2019 during which the Malawi Communications Regulation Authority suspended call-in radio programs, as well as physical violence that journalists have historically faced (notably, a journalist was recently attacked, which perhaps prompted the Malawi Police Service’s new security guidelines intended to protect journalists).

Whistleblower cases

Whistleblowers in Malawi have faced violence and arrest in past instances. During the highly publicized Cashgate scandal- which first came to light in 2013 and involved widespread theft of public money and the arrest and firing of many government officials- the possible (and to some, presumed) whistleblower, a government official, barely survived an assassination attempt. Additionally, in 2016, Malawi police arrested and rearrested a whistleblower who was said to have “risked his life” to reveal corruption at a public hospital.

Other troubling instances of violence have been directed at individuals dedicated to fighting and uncovering corruption in Malawi. For instance, it is believed that the mysterious 2015 murder of a former Anti-Corruption Bureau director of corporate affairs was politically motivated.

However, there are some signs that the environment for whistleblowers in Malawi may be, at least in part, trending in a positive direction. For instance, Deloitte and the Malawi Revenue Authority announced in 2017 that twenty-seven anonymous whistleblowers who had reported under the Tip-Offs Anonymous program would receive monetary rewards ranging from a minimum of ten percent of the taxes recovered to a maximum of K500,000. During the financial year from July 2018 to June 2019, the Malawi Revenue Authority paid out over K282 million to successful Tip-Offs Anonymous informants.

Media rights and freedom

As noted above, though the Constitution enshrines the right to a free press, some recent laws, regulations, and troubling attacks on journalists have threatened the full freedom of press and media rights in Malawi. Reporters Without Borders ranks Malawi 69/180 in the 2020 World Press Freedom Index, falling one spot since 2019. Freedom House gives Malawi a 2/4 in terms of the status of free and independent media. Both organizations note that the disputed 2019 presidential election halted Malawi’s progress in the free press arena and ushered in new laws and actions- such as the suspension of radio call-ins and the vandalism of two commercial TV stations- that threaten media rights.

Knowledge, support and action centers

Tip-Offs Anonymous

As discussed above, Tip-Offs Anonymous is a toll-free service that enables people to anonymously report corporate problems like fraud, bribery, corruption, and more, with rewards given when the tip results in the recovery of revenues.

Centre for Human Rights and Rehabilitation

CHHR was founded in 1995 and is one of the leading human rights NGOs in Malawi. It is authorized to provide its services- which range from lobbying to awareness creation on Constitutional rights to production of public awareness materials- anywhere in Malawi.

Media Institute Southern Africa (MISA) Malawi

MISA Malawi is an advocacy organization promotes and defends media freedom, freedom of expression, and access to information across southern Africa in line with the Windhoek Declaration of 1991. One of eleven MISA chapters, MISA Malawi is a reputable and authoritative source of information that has engaged in notable successful research, advocacy, freedom monitoring, and capacity building activities.

  • Physical address: Mtolankhani House Acacia, Lilaga Community Off Lilongwe-Kasiya Road Lilongwe, Malawi
  • Postal address: P.O. Box 30463 Lilongwe 3, Malawi
  • Tel: +265 1 758 091
  • Fax: +265 1 758 091
  • Email: info@misamalawi.org
  • https://malawi.misa.org

Malawi Center for Investigative Journalism (CIJM)

CIJM is an independent center of investigative journalists that is dedicated to promoting effective, ethical, and original reporting. CIJM’s goal is to promote investigative journalism though skills development, mentorship, and access to information and resources; the organization believes that journalism should favor “systemic and contextualized exposure of corruption” and related issues.

Keeping Score: How does Malawi compare with international standards

The following standards for whistleblower laws are derived from guidelines developed by the OECD, Council of Europe, Blueprint for Free Speech, Government Accountability Project and Transparency International.

Key

1 = The standard is comprehensively or very well reflected in the laws
2 = The standard is partially reflected in the laws
3 = The standard is poorly reflected or absent from the laws

Standard Public Sector Private Sector
A broad range of organisations and workplaces are covered 2 2
A broad range of offenses may be reported as whistleblowing 2 2
The definition of who may qualify as a whistleblower is broad 2 2
A range of disclosure channels to report internally or to regulators is in place 2 2
People who make disclosures to external organizations, the media or the public are protected 3 3
The threshold for protection is a reasonable belief that the information disclosed is true 2 2
There are opportunities and protections for anonymous disclosures 2 2
Whistleblower confidentiality is protected unless expressly waived 2 2
Organizations are required to establish internal disclosure procedures 3 3
Whistleblowers are protected from a broad range of retaliatory acts 2 2
Victimized whistleblowers have access to a full range of remedies and compensation 3 3
Those who retaliate against a whistleblower are subject to sanctions 2 2
A whistleblower oversight or regulatory agency has been designated 3 3
Whistleblower laws are administered and reviewed transparently 3 3