Founded on September 20th, 2011, the Open Government Partnership is a multilateral initiative that aims to secure concrete commitments from national and subnational governments to promote open government, empower citizens, fight corruption, and harness new technologies to strengthen governance.
In 2013, OGP’s thematic goals centered on Citizen Action and Responsive Government. In an era of hyper-connectivity, openness, and transparency, as well as citizen participation and collaboration, are increasingly viewed as essential components of good governance. Malawi joined the OGP in 2013 and has since submitted only one National Action Plan running from 2016 to 2018. It is important to note that this NAP did not make any commitments on Open Contracting but only committed to ensuring the achievement of Freedom of Information. Parliament passed the ATI Bill during the November-December, 2016 Parliament Seating. The Access to Information Act, 2016, was signed into law in February 2017 by President Peter Mutharika as part of fulfilling the OGP NAP commitments on Freedom of Information. However, the law is yet to offer any results as the Ministry of Information has not set a commencement date for its implementation as the ATI Bill states. As such, Malawians continue to face inadequate access to information, which affects accountability and open governance. Malawi is faced with various other challenges in access to information like high literacy rates, a culture of limited willingness to release information by public officials, low public awareness of the right to information, limited access for the rural population to information sources, among others.
According to the report on the State of Implementation of OC & ATI commitments in OGP NAPS in Africa (2016-2020), Malawi has not made any new commitment since then, no country assessment was done, and no new NAP has been submitted to OGP.
Although Malawi did not make any commitments on Open Contracting, the country has made a few strides in ensuring transparency in public procurement. According to Hivos, 2016, public procurement consumes a whole of 80% of Malawi’s annual budget. Malawi’s public procurement is governed by the Public Procurement and Disposal of Assets (PPDA) Act, 2003. The PPDA, among other things, provides for the establishment of the Public Procurement and Disposal of Assets Authority (PPDA) as an independent authority responsible for the regulation and monitoring of public procurement and disposal of public assets in Malawi. However, the authority faces the challenge of inadequate resources to carry out its responsibilities competently. As a result of this challenge, the PPDA is for instance unable to fulfill one of its primary functions, which is the collection of procurement information from procuring entities, who, despite being obligated by law to keep records of all procurement activities and send them to the PPDA, often fail to do so.
This problem also negatively affects the Public Procurement Information platform run by the PPDA, which can offer only minimal information about ongoing procurement opportunities in the country. The Malawi Procurement Regulations in section 161 indicate that electronic medium can be used only if appropriate measures have been taken to prevent unauthorized access to bidding, approval, and award processes yet another disclosure limiting factor within the legal framework. Indeed between 2018 and 2020.
AFIC, in partnership with the Centre for Human Rights and Rehabilitation (CHRR), undertook an OCDS mapping of the Malawi Public Procurement portal to ascertain the disclosure levels as part of ensuring open contracting.
“The OGP process has been very instrumental in helping countries commit to key tenants of disclosure that will mostly go a long way in assisting countries to deal with the grand corruption. Our interest in these commitments mainly was on Access to Information and Open Contracting. Access to information remains a crucial foundation for any form of transparency because when citizens are empowered with knowledge, they can monitor progress and demand for accountability in their communities and countries at large. Open Contracting is very vital because it deals with transparency in public procurement that accounts for over 50% of most African countries’ annual budgets. Through open contracting, governments can disclose information about public contracting; the citizens can use that information to monitor the contracts and provide feedback to the government that should eventually act and lead to improved service delivery.” Gilbert Sendugwa, Executive Director, Africa Freedom of Information Centre.
The 2018 mapping indicated that the procurement disclosed information was not OCDS compliant and thus not sharable; the data was historical with only tender and contract information published, and tender, and other vital documents not disclosed. With the sharing of the findings of the mapping process, PPDA built a new website with improved procurement information available. PPDA has also developed its tender portal to disclose procurement data with a provision to disclose procurement plan information, tender notices, and award information. However, the portal remains non- OCDS compliant and still has no data published in the various sections of the disclosure. Such lacunas in the Malawi procurement legal framework and lack of political will to improve have led to the system continuing to suffer a high level of collusion, secrecy, fraud, and corruption.
The State of Implementation of OC & ATI commitments in OGP NAPS in Africa (2016-2020), the report indicates that many corruption scandals in recent years have been in the field of procurement or related to that. Malawi is still reeling from the effects of a 2013 corruption scandal dubbed ‘cash-gate’ in which up to US$250 million of taxpayers’ money was lost through fraudulent payments to private contractors for goods and services that were not rendered. Currently, there are numerous alleged cases of procurement-related corruption in Malawi involving public institutions, such as the Electricity Supply Corporation of Malawi (ESCOM), Lilongwe Water Board (LWB), Blantyre Water Board (BWB), the Malawi Police Service, and the Immigration Department among others. In 2017, a US$34.5 million maize procurement scandal led to the dismissal of an agriculture minister, following an investigation into claims that the country had ‘paid too much’ for delivery of maize from Zambia (Nation, 2017). Recently, a leaked report by the Anti-Corruption Bureau (ACB) accused the President of Malawi of receiving a $195,000 (K145million) kickback from a contract to supply food to the police (BBC, 2018). Malawi can only overcome these by committing to adopt open contracting in their OGP NAPs and ensuring that the commitments are implemented.
PPDA has been working closely with civil society organizations, such as members of the Open Contracting Multi-Stakeholder Group (OC –MSG), to advance open contracting in the country. The OC-MSG was established in December 2018 through the auspices of key organizations like CHRR and is currently hosted and coordinated by the Malawi Economic Justice Network (MEJN). The OC-MSG is an initiative of local civil society organizations, which brings relevant actors together and create space for open discussion and dialogue around open contracting in Malawi. However, civil society is still treated with mistrust by the government, and government officials rarely attend the meetings of the MSG that inhibits the good intentions of this initiative in promoting open contracting and overall transparency.
Rather than establish a worldwide transparency ranking of countries, OGP provides support and encouragement to countries around the world as they champion ambitious new reforms and deliver on their promises “under the watchful eyes of citizens,” The community of reformers is meant to “offer support to those in government that are willing and to create a hook whereby the conversations among government and civil societies can occur.”
This relationship between government and civil society is the cornerstone of OGP. Governments are expected to actively collaborate with civil society when drafting and implementing country commitments, as well as when reporting on and monitoring efforts. The OGP process requires the government to consult with civil society and citizens, and the Independent Reporting Mechanism (IRM) assesses the quality of this consultation.OGP can serve as a platform to construct a diverse coalition of civil society actors from a variety of disciplines.
The report makes the following recommendations to the Government and the OGP Steering Committee to prioritize in the next NAP:
- The Malawi OGP Steering Committee should prepare and submit the 2nd NAP and also ensure that there’s equal participation and representation of both civil society and government.
- The Government of Malawi needs to set specific commitments on open contracting as a way of improving the performance of public procurement. These should include commitments of aligning the public procurement portal in OCDS format.
- The 2nd OGP NAP should make commitments on improving the state of public procurement legal framework in Malawi like the Malawi Procurement Regulations especially section 161 that indicates that electronic medium can be used only if appropriate measures have been taken to prevent unauthorized access to bidding, approval, and award processes that limit public procurement disclosure.
- The 2nd NAP should make commitments on reviewing the legal framework that prohibits access to information and is consistent with regional and international standards especially the ATI model law. These laws include the Official Secrets Act under section 1)4), the Preservation of Public Security Act (1960), and the Penal Code access to information restrictions. 7.2.2 The report further recommends that the Minister of Information urgently sets a date for the operationalization of the Access to Information Act, 2016 to enhance transparency and accountability in Malawi.
“We hope that governments can use this State of Implementation of OC & ATI commitments in OGP NAPS in Africa (2016-2020), report to gauge how far they have gone with implementing commitments made since 2016 and also put in place required mechanisms like OCDS aligned portals to enable multi-stakeholder monitoring of commitments. We also hope that civil society will be able to use this information to strengthen the monitoring of crucial commitments made by governments. This publication is a confirmation that indeed the journey still has a long way to go, but together we can achieve more.” Gilbert Sendugwa, Executive Director, Africa Freedom of Information Centre.