47 SOUTHERN AFRICA PRESS FREEDOM REPORT 2019-2020 MALAWI The country, however, has both old and new laws that are retrogressive and negate these constitutional guarantees. Malawi has also recently enacted laws that limit media freedom and freedom of expression, such as the Cybersecurity and Electronic Transaction Act (2016) that seeks to regulate online transactions, but in the process limits online expression. By Aubrey Chikungwa The year 2019 and the first half of 2020 will go down in the history of Malawi as a triumph for rule of law, media freedom, freedom of expression and democracy more broadly. This period saw Malawi’s Constitutional Court nullify the 2019 Presidential Elections for gross irregularities and order fresh polls. The period also witnessed the most widespread, consistent and popular protests against the Malawi Electoral Commission (MEC) for mismanaging the 2019 Presidential Elections. The implementation of the Malawi Access to Information Act (2017) concluded 17 years of advocacy for MISA Malawi and other human rights activists. The enactment and operationalisation of the ATI Act is a fundamental milestone that will go a long way in promoting media freedom, freedom of expression and access to information for the media and citizens generally. Overall the media operating environment in 2019/20 remained risky, exploitative and retrogressive in some aspects with members of the media having been physically assaulted when covering public functions, protests and court proceedings, while several practitioners have received anonymous threats for carrying stories critical of the state or the ruling elite. MEDIA FREEDOM Malawi has one of the most progressive constitutions in the region with clear and independent guarantees on freedom of expression in section 35, media freedom in section 36 and access to information in section 37. This legislation has a number of clauses that affect media freedom and freedom of expression: sections 31, 32, 69 and 70 have a direct chilling effect on online users. Section 31 requires online content producers and editors to publish their identity and other details of their publication. The act also promotes self-censorship on a platform that usually offers hope to societies with restrictive environments. However, the fear of imprisonment and fines for failing to publish an apology within 24 hours is enough for online content producers to practice self-censorship. The presence of cyber inspectors as provided for under sections 69 and 70 and their mandate to search and confiscate computers and other gadgets also instils fear and promotes selfcensorship. ACCESS TO INFORMATION Malawi has three main instruments that guarantee the right to information: section 37 of the Republican Constitution, the National Access to Information (ATI) Policy (2014) and the Access to Information Act (2017). It is, however important to note that despite the fact that Malawi has three important instruments that guarantee the right to information, access to information is still a challenge for most Malawians due to several factors, including the following: — The ATI Act was finally gazetted on September 30, 2020, heralding the commencement date three years after the law was adopted — a clear indication of lack of interest on the part of the government to implement the act. — Despite the new administration’s demonstrated willingness to operationalise the ATIA, it is important to note that it is still possible for the new government to frustrate the process and develop policies and subsidiary regulations that limit rather than promote access to information.