Implementation of the Electronic Transactions and Cyber Security Act has come under fire with some sections of society accusing the government of using the law to silence critics and instil fear among citizens.
Responding to The Nation in separate interviews on the application of the law which has seen some citizens arrested over their posts on social media platforms, lawyers and human rights activists on Monday accused law enforcement agencies, especially the Malawi Police, of abusing the law to deal with perceived government critics.
The Act, among others, provides for restrictions on online communications to protect public order and national security. It also penalises offensive communication with fines or a maximum 12-month prison sentence.
In the wake of the arrest last Friday of activist-cum-comedian Bon Kalindo and Rumphi East parliamentarian Kamlepo Kalua, the law has once again come under spotlight.
The duo is separately accused of producing voice notes related to the June 10 2024 plane crash in Mzimba that claimed the lives of former vice-president Saulos Chilima and eight others.
In an interview on Monday, Malawi Human Rights Commission (MHRC) director of civil and political rights Peter Chisi said the law was being abused by the State to pounce on political and rights activists.
He said: “People are arrested yet there is no complainant. There is a need for the nation to reflect on this law as it is being abused. People are being detained unnecessarily for too long and are subjected to too harsh treatment.
“We need to engage the Malawi Police Service and other government security agencies to find a long lasting solution to this.”
Chisi also wondered why suspects are arrested closer to weekends and forced to spend the whole weekend in custody where they are ferried to police stations away from their respective places of residence.
Human Rights Defenders Coalition chairperson Gift Trapence, in a statement released on Friday, reminded President Lazarus Chakwera that in January 2019, while serving as Leader of Opposition in Parliament, condemned the arrest of Kalindo, describing it as ‘stupid’.
He said Chakwera promised to review such laws to ensure that all Malawians could freely express their thoughts without fear of persecution. However, he noted that such laws are being used under his watch.
“Free speech is a cornerstone of our democracy and must be protected by his government. The State must enforce laws objectively and fairly. Arrests should not be tools to silence dissent or intimidate differing views,” said Trapence.
In a separate interview on Monday, Centre for Human Rights and Rehabilitation executive director Michael Kaiyatsa said instead of arresting people, government should focus on finding answers to the plane crash.
He said: “CHRR has repeatedly called on the government to review the Act and repeal provisions that are incompatible with the Constitution and international human rights law.
“For democracy to thrive, informed and tolerant debate is essential. Contrary views must be respected.”
Leader of Opposition in Parliament George Chaponda, a lawyer, in a statement on Friday, said the law was being used to “harass people without thorough investigation”.
“In fact, Malawi is slowly getting back to one party State,” he said.
Private practice lawyer Khwima Mchizi, who has represented tens of suspects in such cases, said the challenge lies with abuse by law enforcers and not the law itself.
“State agencies simply need to act better. Even if you scrap the law, they will still use any law to silence critics. It is the abuse of the law which is an issue,” he said.
Another private practice lawyer John-Gift Mwakhwawa said people need to balance between their rights and responsibilities in protecting national security, but said cases should be individually assessed.
Reacting to the concerns, Minister of Information and Digitisation Moses Kunkuyu said government appreciates and values the importance of upholding fundamental human rights, including the freedom of expression.
He said citizens were free to express themselves on any law they deem retrogressive and suppressive.
Kunkuyu, who is the official government spokesperson, said: “Malawians have the liberty and responsibility to enjoy their freedom of expression within the confines of the current law.
“Should any aspects of the current law be deemed harsh, then as I said there is that freedom to call for a repeal of the law but while it is in force, it applies as it currently provides.”
While Kalindo remains in police cell, Kalua was on Monday granted police bail.
Meanwhile, police have also arrested the Reverend Kondwani Chimbirima Gondwe of the CCAP Synod, Zolozolo congretation in Mzuzu over similar allegations.
The Electronic Transaction and Cyber Security Act provides for criminalising offences related to computer systems and information communication technologies, but also provides for investigation, collection and use of electronic evidence, among others.
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