Analysis of the Malawi Draft Data Protection Bill, 2021

The Constitution of Malawi provides for the right to privacy under section 21. The section provides that every person shall have the right to personal privacy, which shall include the right not to be subject to searches of his or her person, home or property; the seizure of private possessions; or interference with private communications, including mail and all forms of telecommunications. Malawi is party to several international instruments which provide for the right to privacy, such as the Universal Declaration of Human Rights (article 12), the International Covenant on Civil and Political Rights (article 17), Convention on the Rights of the Child (article 16), and the International Convention on the Protection of All Migrant Workers and Members of Their Families (article 14). Regionally, the right to privacy is stipulated in the African Charter on the Rights and Welfare of the Child (article 19), the African Union Convention on Cybersecurity and Personal Data Protection (which Malawi has neither signed nor ratified) and the Declaration of Principles on Freedom of Expression and Access to Information in Africa 2019 (principles 40 and 41). Malawi has various legislation that impact on digital rights and freedoms including freedom of expression (FoE) and access to information (ATI). Malawi has published the Data Protection Bill, 2021. This analysis highlights the positive and negative aspects of the bill, including its potential impact on freedom of expression, access to information online, and the right to privacy.