DRAFT CONSTITUTION OF THE REPUBLIC OF MALAWI
(This is revised & corrected, posted to Wiretap 3/29/94,
submitted by
[email protected])
NOTES ON THE CONSTITUTION
The Constitutional Sub-committee of the National Consultative
Committee has now provided access to the draft Constitution of
Malawi. It is the product of intensive discussions over the
course of only five weeks by the legal representatives of the
political parties, taking into account recommendations of two
constitutional conferences. Most of the decisions have been
settled as to substance, particularly in respect of the basic
structure of government as a political decision.
Comments would be particularly appreciated on matters of
drafting, consistency, completeness, undesirable effects of
formulations employed, etc.
Time is very short. Parliament will be dissolved on May 18 and
so there is only about one week left for drafting the
legislation incorporating the new constitution. All comments
are welcome and can be sent as follows:
1. E-mail address:
[email protected] OR
[email protected]
2. through distribution point by which the material arrived
3. Fax: -265-623075
4. Tel: -265-624156 (Legal Resources Centre) OR
5. Res Tel: -265-652416
Thank you for your assistance.
John Barker
DRAFT CONSTITUTION OF THE REPUBLIC OF MALAWI
MUTU UMODZI SUSENZA DENGA
The people of Malawi adopt the following as the Constitution of Malawi.
CHAPTER 1
THE REPUBLIC OF MALAWI
1. The Republic of Malawi is a sovereign State with rights and
obligations under the Law of Nations.
2. Malawi shall have a National Flag, a National Coat of Arms, a
National Anthem, and a National Seal.
3. The national territory of the Republic of Malawi shall consist of all
the territory, including airspace, waters and islands which
comprised the territory of Malawi before the coming into effect of
this Constitution.
4. All powers exercised by the State are entrusted to it by the people
of Malawi and are defined and limited by this Constitution which
shall be supreme.
5. The Constitution shall bind all executive, legislative and judicial
organs of the State at all levels of government and all the peoples
of Malawi are entitled to the equal protection of the Constitution,
its agencies and laws made under it.
6. Any act of government, any law or any decision of a Court that is
inconsistent with the provisions of this Constitution shall, to the
extent of such inconsistency, be invalid.
7. The authority to govern derives from the people of Malawi as
expressed through universal and equal suffrage in genuine and
regular elections.
8. The executive shall be responsible for the initiation and
implementation of policies and legislation which embody the
express wishes of the people of Malawi and which promote the
principles of this Constitution.
9. The legislature when enacting laws shall reflect in its deliberations
and represent in its decisions the interests of all the people of
Malawi and shall further the values implicit in this Constitution.
10. The judiciary shall have the responsibility of interpreting,
protecting and enforcing this Constitution and all laws in
accordance with it in an independent and impartial manner with
regard only to questions of fact and the prescriptions of law.
CHAPTER 2
FUNDAMENTAL PRINCIPLES
11. Universal Principles
The people of Malawi unite themselves and affirm the importance
of the following values in the life of the nation, the government
and the citizen:
Note: submissions have been requested and will be made by the
churches and members of the public.
(examples subitted:
- sanctity of life
- importance of the family
- collective wisdom)
12. Constitutional Principles
This Constitution is founded upon the following underlying
principles:
(1) All legal and political authority of the State derives from the
people of Malawi and shall be exercised in accordance with
this Constitution solely to serve and protect their interests.
(2) All persons responsible for the exercise of State powers do so
on trust and shall only exercise power to the extent of their
lawful authority and in accordance with their responsibilities
to the people of Malawi.
(3) The authority to exercise State power is conditional upon the
sustained trust of the people of Malawi and that trust can only
be maintained through open, accountable and transparent
government and informed democratic choice.
(4) The inherent dignity and worth of each human being requires
that the State and all persons shall recognise and protect
fundamental human rights and afford the fullest protection to
the rights and views of all individuals, groups and minorities
whether or not they are entitled to vote.
(5) As all persons have equal status before the law, the only
justifiable limitations to lawful rights are those necessary to
ensure peaceful human interaction in an open and democratic
society.
(6) All institutions and persons shall observe and uphold the
Constitution and the Rule of Law and no institution or person
shall stand above the law.
13. Principles of National Policy
The State shall actively promote the welfare and development of
the people of Malawi by progressively adopting and implementing
policies and legislation aimed at achieving the following goals:
(1) Equality for Women
To obtain equality for women through:
(a) full participation in all spheres of Malawian society on
the basis of equality;
(b) the implementation of the principles of non-
discrimination and such other measures as may be
required; and
(c) the implementation of policies to address social issues
such as domestic violence, security of the person, lack of
maternity benefits, economic exploitation, and rights to
property.
(2) Nutrition
To achieve adequate nutrition for all in order to promote
good health and self-sufficiency.
(3) Health
To provide adequate health care, commensurate with the
health needs of Malawian society and international standards
of health care.
(4) The Environment
To manage the environment responsibly in order to:
(a) prevent the degradation of the environment;
(b) provide a healthy living and working environment for the
people of Malawi;
(c) accord full recognition to the rights of future generations
by means of environmental protection and the sustainable
exploitation of natural resources; and
(d) protect the rich biological diversity of Malawi.
(5) Rural Life
To enhance the quality of life in rural communities and to
recognise rural standards of living as a key indicator of the
success of government policies.
(6) Education
To provide adequate resources to the education sector and
devise programmes in order to:
(a) eliminate illiteracy in Malawi;
(b) introduce free primary education;
(c) offer greater access to higher learning and continuing
education; and
(d) promote national goals such as unity and the elimination
of political, religious, racial and ethnic intolerance.
(7) The Disabled
To support the disabled through:
(a) greater access to public places;
(b) fair opportunities in employment; and
(c) the fullest possible participation in all spheres of
Malawian society.
(8) Children
To encourage and promote conditions conducive to the full
development of healthy, productive and responsible members
of society.
(9) The Family
To recognise and protect the family as a fundamental and
vital social unit.
(10) Elderly
To respect and support the elderly through the provision of
community services and to encourage participation in the life
of the community.
(11) International Relations
To govern in accordance with and actively support the further
development of the law of nations and the Rule of Law in
regional and international affairs.
(12) Peaceful settlement of disputes
To strive to adopt mechanisms by which differences are
settled through negotiation, good offices, mediation,
conciliation, and arbitration.
(13) Administration of Justice
To promote law and order and respect for society through
civic education, by honest practices in government, adequate
resourcing, and the humane application and enforcement of
laws and policing standards.
(14) Economic Management
To achieve a sensible balance between the creation and
distribution of wealth through the nurturing a market
economy and long term investment in health, education and
social development programmes.
(15) Public Trust and Good Governance
To introduce measures which will guarantee accountability,
transparency, personal integrity and financial probity and
which by virtue of their effectiveness and visibility will
strengthen confidence in public institutions.
The next 3 sections are not complete.
Application of the Constitution
14. (1) In the interpretation of all laws and the resolution of all
political disputes this Constitution and the principles
contained herein shall be regarded as the supreme arbiter and
ultimate source of authority.
(2) The provisions of this Constitution shall be interpreted in
accordance with and with full regard to the Principles set out
in Chapters 2 and 3 and with full regard to public
international law and foreign comparable foreign case law.
(3) In the interpretation of any Act of Parliament and the
applicability and development of the common law and
customary law all Courts shall have due regard to the
principles and provisions of this Constitution.
15. The principles contained in this Chapter shall be treated as an
integral part of this Constitution to guide its legal interpretation,
and to guide the conduct of both private and public affairs.
16. Principles of National Policy
(1) The principles of national policy shall be directory in nature
but Courts shall be entitled to have regard to them in
interpreting and applying any laws, including the provisions
contained in this Constitution, or in determining the validity
of executive decisions.
(2) In order to achieve these objectives at all levels of society,
appropriate legislation should be considered and adopted,
while respecting continuity and minimising disruption where
possible.
(3) The achievement of these goals entails obligations for
Malawian society as well as for the State.
CHAPTER 3
BILL OF HUMAN RIGHTS
17. Protection of Human Rights and Freedoms
(1) The Human Rights and Freedoms enshrined in this Chapter
shall be respected and upheld by the Executive, Legislature
and Judiciary and all organs of the Government and its
agencies and where applicable to them, by all natural and
legal persons in Malawi and shall be enforceable in the
manner hereinafter prescribed.
(2) Any person or group of persons with sufficient interest in the
protection and enforcement of rights under this Chapter shall
be entitled to the assistance of the Courts, the Ombudsman,
the Human Rights Commission and other organs of
government to ensure the promotion, protection and redress
of grievance in respect of those rights.
18. The Right to Life
Every person has the right to life. No one shall be arbitrarily
deprived of his or her life.
19. Liberty
Every person has the right of personal liberty.
20. Human Dignity and Personal Freedom
(1) The dignity of all persons shall be inviolable.
(2) (a) In any judicial proceedings or in any other proceedings
before any organ of the State, and during the
enforcement of a penalty, respect for human dignity shall
be guaranteed.
(b) No person shall be subject to torture of any kind or to
cruel, inhuman or degrading treatment or punishment.
(c) No person shall be subject to corporal punishment in
connection with any judicial proceedings or in any other
proceedings before any organ of the State.
(3) Every person shall have the right to freedom and security of
person, which shall include the right not to be detained
without trial.
21. Equality
(1) The law shall prohibit any discrimination and shall guarantee
to all persons equal and effective protection against
discrimination on grounds such as: race, colour, sex,
language, religion, political or other opinion, nationality,
ethnic or social origin, disability, property, birth or other
status.
(2) Legislation may be passed addressing inequalities in society
and prohibiting discriminatory practices and the propagation
of such practices and may render such practices criminally
punishable by the courts.
22. Privacy
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 violation of
private communications, including mail and all forms of
telecommunications.
23. Family and Marriage
(1) The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
(2) Each member of the family shall enjoy full and equal respect
and shall be protected by law against all forms of neglect,
cruelty or exploitation.
(3) (a) Men and women, without any limitation due to race,
colour, ethnic origin, nationality, religion or social or
economic status shall have the right to marry and found a
family.
(b) No person shall be forced to enter into marriage.
(c) This section shall apply to all marriages at law, marriage
by repute or by permanent cohabitation.
(4) No person over the age of eighteen years shall be prevented
from entering into marriage.
(5) Between the age of fifteen and eighteen years a marriage shall
only be entered into with the consent of the parents or
guardians.
(6) The law shall recognise and protect marriages by repute or by
permanent cohabitation for the purpose of enforcing duties
and rights under the law.
24. Rights of Children
(1) All children are legitimate, regardless of the circumstances of
their birth, and are entitled to equal treatment before the law.
(2) All children shall have the right to a given name and a family
name and the right to a nationality.
(3) Children have the right to know and be cared for by their
parents.
(4) Children are entitled to be protected from economic
exploitation and shall not be employed in or required to
perform work that is likely to be hazardous or to interfere
with their education or which will be harmful to their health
or physical, mental or spiritual or social development.
(5) For the purposes of this section children shall be persons
under sixteen years of age.
25. Education
(1) All persons are entitled to education.
(2) Primary education shall be compulsory and free to all to the
maximum of the State's available resources with a view to
achieving progressively the full realization of this right.
(3) Primary education shall consist of at least five years of
education.
(4) Private schools and other private institutions of higher
learning shall be permissible, provided that:
(a) such schools or institutions are registered with a State
department in accordance with the law;
(b) the standards maintained by such schools or institutions
are not inferior to official standards;
(c) no restrictions are imposed with respect to the admission
of pupils based on grounds other than religion;
(d) no restrictions are imposed with respect to the
recruitment of staff based on grounds other than religion.
26. Culture and Language
Every person shall have the right to use the language and to
participate in the cultural life of his or her choice.
27. Slavery, Servitude and Forced Labour
(1) No one shall be held in slavery or servitude.
(2) Slavery and the slave trade shall be prohibited.
(3) No one shall be subject to forced labour.
(4) Nobody shall be subject to tied labour that amounts to
servitude.
28. Property
(1) All persons shall, subject to this Constitution, be able to
acquire, alone or in association with others, rights in
property.
(2) No one shall be arbitrarily deprived of property.
29. Economic Activity
Every person shall have the right freely to engage in economic
activity, to work and to pursue a livelihood anywhere in the
national territory.
30. The Right to Development
(1) All persons and peoples have a right to development and
therefore to the enjoyment of economic, social, cultural and
political development. Women in particular shall be given
special consideration in the application of this right.
(2) The State shall undertake all necessary measures for the
realisation of the right to development. Such measures shall
include, amongst other things, equality of opportunity for all
in their access to basic resources, education, health services,
food, shelter and employment.
(3) Measures shall be undertaken to introduce reforms aimed at
eradicating social injustices and inequalities.
(4) The State has a responsibility to respect the right to
development and to justify its policies in accordance with this
responsibility.
(5) The State should encourage popular participation in all
spheres of society as an important factor in the realisation of
the right to development.
31. Labour
(1) Every person shall have the right to fair and safe labour
practices and to fair remuneration.
(2) All persons shall have the right to form and join trade unions
or not to join them.
(3) Every person shall be entitled to fair wages and equal
remuneration for work of equal value without distinction and
discrimination of any kind, in particular on the basis of sex.
32. Freedom of Association
(1) Every person shall have the right to freedom of association,
which shall include the freedom to form associations.
(2) No one may be compelled to belong to an association.
33. Religion, Belief and Opinion
Every person shall have the right to freedom of conscience,
religion, thought, belief and opinion, which shall include academic
freedom.
34. Freedom of Expression and of the Press
(1) Every person shall have the right to freedom of speech and
expression.
(2) The press shall have the right to report and publish freely,
within Malawi and abroad, and the fullest possible facilities
for access to public information.
35. Access to Information
Every person shall have the right of access to all information held
by the State or any of its organs at any level of Government
insofar as such information is required for the exercise of his or
her rights.
36. Freedom of Assembly
Every person shall have the right to assemble and demonstrate
with others peacefully and unarmed.
37. Freedom of Movement and Residence
(1) Every person has the right to freedom of movement and
residence within the borders of the State.
(2) Every person has the right to leave the country and to return
to it.
38. Political Rights
(1) Subject to this Constitution, every person shall have the right:
(a) to form, to join, to participate in the activities of and to
recruit members for a political party;
(b) to campaign for a political party or cause; and
(c) Every person shall have the right to participate in
peaceful political activity intended to influence the
composition and policies of the Government.
(d) freely to make political choices.
Provided that the State must ensure that Parties
represented in the National Assembly should have
sufficient funds to continue to represent their
constituency.
(2) Every person shall have the right to vote, to do so in secret
and to stand for election for public office.
39. Access to Justice and Legal Remedies
(1) Every person has a right to recognition as a person before the
law.
(2) Every person shall have access to any court of law and to any
other tribunal for final settlement of justiciable issues.
(3) Every person has the right to an effective remedy by a court
of law or tribunal for acts violating the rights and freedoms
granted to him by this Constitution or any other law.
40. Arrest, Detention and Fair Trial
(1) Every person who is detained, including every sentenced
prisoner, shall have the right-
(a) to be informed promptly in a language which he or she
understands of the reason for his or her detention;
(b) to be detained under conditions consonant with human
dignity, which shall include at least the provision of
adequate nutrition and medical treatment at State
expense;
(c) to consult confidentially with a legal practitioner of his or
her choice, to be informed of this right promptly and,
where substantial injustice would otherwise result, to be
provided with the services of a legal practitioner by the
State;
(d) to be given the means and opportunity to communicate
with, and to be visited by, his or her spouse or partner,
next-of-kin, religious counsellor and a medical
practitioner of his or her choice; and
(e) to challenge the lawfulness of his or her detention in
person before a court of law and to be released if such
detention is unlawful.
(2) Every person arrested for the alleged commission of an
offence shall, in addition to the rights which he or she has as
a detained person, have the right-
(a) promptly to be informed, in a language which he or she
understands, that he or she has the right to remain silent
and to be warned of the consequences of making any
statement;
(b) as soon as it is reasonably possible, but not later than 48
hours after the arrest, or if the said period of 48 hours
expires outside ordinary court hours or on a day which is
not a court day, the first court day after such expiry, to
be brought before an ordinary court of law and to be
charged or to be informed of the reason for his or her
further detention, failing which he or she shall be entitled
to be released;
(c) not to be compelled to make a confession or admission
which could be used in evidence against him or her; and
(d) to be released from detention with or without bail, unless
the interests of justice require otherwise.
(3) Every accused person shall have the right to a fair trial,
which shall include the right-
(a) to public trial before an ordinary court of law within a
reasonable time after having been charged;
(b) to be informed with sufficient particularity of the charge;
(c) to be presumed innocent and to remain silent during a
plea proceedings or trial and not to testify during trial;
(d) to adduce and challenge evidence, and not to be a
compellable witness against himself or herself;
(e) to be represented by a legal practitioner of his or her
choice or, where substantial injustice would otherwise
result, to be provided with legal representation at State
expense, and to be informed of these rights;
(f) not to be convicted of an offence in respect of any act or
omission, and not to be sentenced to a more severe
punishment than that which was applicable when the
offence was committed;
(g) not to be tried again for any offence of which he or she
has previously been convicted or acquitted;
(h) to have recourse by way of appeal or review to a higher
court than the court of first instance;
(i) to be tried in a language which he or she understands or,
failing this, to have the proceedings interpreted to him or
her; and
(j) to be sentenced within a reasonable time after conviction.
41. Administrative Justice
Every person shall have the right to:
(a) Lawful administrative action where any of his or her
rights or interests are affected or threatened;
(b) Procedurally fair administrative action where any of his
or her rights or legitimate expectations are affected or
threatened;
(c) Be furnished with reasons in writing for administrative
action which affects any of his or her rights or interests;
(d) Administrative action which is justifiable in relation to
the reasons given where any of his or her rights are
affected or threatened.
42. Asylum, Refugee Status and Statelessness
(1) A person from another country to whom is denied, in his or
her country of origin or habitual residence, the effective
exercise of those democratic rights and freedoms guaranteed
by the Constitution of Malawi or who has a well founded fear
of persecution on the grounds of race, sex, religion,
nationality, membership of a particular social or ethnic group,
or political opinion, or whose life, liberty or physical
integrity is threatened or who is deprived of citizenship, shall
have the right to asylum in Malawi.
(2) No person shall be subjected to measures such as rejection at
the frontier, return or expulsion which will compel him or
her to return to or remain in a territory where his or her life
or physical integrity will be threatened for the reasons
mentioned in subsection (1).
43. Genocide
Acts of genocide are prohibited and shall be prevented and
punished.
44. Limitation
(1) No restrictions or limitations may be placed on the exercise
of the rights and freedoms provided for in this Constitution
other than those prescribed by law, which are reasonable,
recognised by international human rights standards and
necessary in an open and democratic society.
(2) Laws prescribing restrictions or limitations shall not negate
the essential content of the right or freedom in question, shall
be of general application and shall not be aimed at particular
individuals or groups.
(3) Expropriation of property will be permissible only when done
for public utility or social interest and only when there has
been adequate notification and just compensation, provided
that there shall always be a right to appeal.
45. Derogation and Public Emergency
(1) No derogation from rights contained in this Chapter shall be
permissible except to the extent that it is provided for by this
section and no such derogation shall be made unless there has
been a declaration of a state of emergency within the meaning
of this section.
(2) The President may declare a state of emergency:
(a) only to the extent that it is provided for in this section;
(b) only with the approval of both the Army Council and the
Defence Committee of the National Assembly;
(c) only in times of war or civil war; and
(d) only with regard to the specific location where that
emergency exists.
Provided that any declaration of a state of emergency shall be
publicly announced.
(3) Derogation shall only be permissible during a state of
emergency with respect to freedom of expression, freedom of
information, freedom of movement, freedom of assembly and
the right not to be detained without trial, and only to the
extent that such derogation is required to prevent the lives of
defensive combatants and legitimate military objectives from
being placed in direct jeopardy.
(4) The declaration of the state of emergency and any action
taken in consequence thereof shall be in force for a period of
not more than twenty-one days, unless it is extended for a
period of not longer than three months, or consecutive
periods of not longer than three months at a time, by
resolution of the National Assembly adopted by a majority of
at least two-thirds of all its members.
(5) The High Court shall be competent to enquire into the
validity of a declaration of a state of emergency, any
extension thereof, and any action taken, including any
regulation enacted, under such declaration.
(6) Where a person is detained under a state of emergency such
detention shall be subject to the following conditions:
(a) An adult family member or friend of the detainee shall be
notified of the detention as soon as is reasonably
possible;
(b) The names of all detainees and a reference to the
measures in terms of which they are being detained shall
be published in the Gazette within five days of their
detention.
(c) When rights entrenched in subsection (5)(2) or section 25
have been suspended-
(i) the detention of a detainee shall, as soon as it is
reasonably possible but not later than 10 days after
his or her detention, be reviewed by a court of law,
and the court shall order the release of the detainee
if it is satisfied that the detention is not necessary to
restore peace or order;
(ii) a detainee shall at any stage after the expiry of a
period of 10 days after a review in terms of
subparagraph (i) be entitled to apply a court of law
for a further review of his or her detention, and the
court shall order the release of the detainee if it is
satisfied that the detention is no longer necessary to
restore peace or order;
(iii)a detainee shall be informed of the reasons for his
detention.
(d) the detainee shall be entitled to appear before the court in
person, to be represented by legal counsel, and to make
representations against his or her continued detention;
(e) the detainee shall be entitled at all reasonable times to
have access to a legal representative of his or her choice;
(f) the detainee shall be entitled at all times to have access to
a medical practitioner of his or her choice; and
(g) the State shall for the purpose of a review referred to in
paragraph (c) (i) or (ii) submit written reasons to justify
the detention or further detention of the detainee to the
court, and shall furnish the detainee with such reasons
not later than two days before the review.
(7) If a court of law, having found the grounds for a detainee's
detention unjustified, orders his or her release, such a person
shall not be detained again on the same grounds unless the
State shows good cause to a court of law prior to such
re-detention.
46. Enforcement
(1) Save in so far as it may be authorised to do so by this
Constitution, the National Assembly or any subordinate
legislative authority shall not make any law, and the
Executive and the agencies of Government shall not take any
action which abolishes or abridges the fundamental rights and
freedoms conferred by this Chapter, and any law or action in
contravention thereof shall to the extent of the contravention
be invalid.
Provided that:
(a) a competent Court, instead of declaring such law or
action to be invalid, shall have the power and the
discretion in an appropriate case to allow the National
Assembly, any subordinate legislative authority, or the
Executive and the agencies of Government, as the case
may be, to correct any defect in the impugned law or
action within a specified period, subject to such
conditions as may be specified by it. In such event and
until such correction, or until the expiry of the time limit
set by the Court, whichever be the shorter, such
impugned law or action shall be deemed to be valid;
(b) any law which was in force immediately before the
coming into effect of this Constitution shall remain in
force until amended, repealed or declared
unconstitutional. If a competent Court is of the opinion
that such law is unconstitutional, it may either set aside
the law, or allow the National Assembly to correct any
defect in such law, in which event the provisions of
subsection (a) hereof shall apply.
(2) Aggrieved persons who claim that a fundamental right or
freedom guaranteed by this Constitution has been infringed or
threatened shall be entitled to approach a competent Court to
enforce or protect such a right or freedom, and may approach
the Ombudsman or the Human Rights Commission to provide
them with such legal assistance or advice as they require, and
the Ombudsman or the Human rights Commission shall have
the discretion in response there to provide such legal or other
assistance as he or she may consider expedient.
(3) Subject to the provisions of this Constitution, the Court
referred to in subsection (2) hereof shall have the power to
make all such orders as shall be necessary and appropriate to
secure such applicants the enjoyment of the rights and
freedoms conferred on them under the provisions of this
Constitution, should the Court come to the conclusion that
such rights or freedoms have been unlawfully denied or
violated, or that grounds exist for the protection of such
rights or freedoms by injunction.
(4) The power of the Court shall include the power to award
monetary compensation in respect of any damage suffered by
the aggrieved persons in consequence of such unlawful denial
or violation of their fundamental rights and freedoms, where
it considers such an award to be appropriate in the
circumstances of particular cases.
47. Interpretation
(1) New and appropriate principles of interpretation of this
Constitution shall be developed and employed by the Courts
to reflect the Constitution's unique character and supreme
status.
(2) In interpreting the provisions of this Chapter a court of law
shall promote the values which underlie an open and
democratic society and shall, where applicable, have regard
to public international law applicable to the protection of
human rights and freedoms and may have regard to
comparable foreign case law.
(3) In the interpretation of any law and the application and
development of the common law and customary law, a court
of law shall have due regard to the spirit and values of this
Constitution.
(4) A court of law will also be entitled to have regard to the
Principles of the Constitution provided for in Chapter 1.
CHAPTER 4
CITIZENSHIP
48. (1) Every person who immediately before the appointed day was
a citizen of Malawi under any existing law shall continue to
be a citizen of the Republic after the appointed day.
(2) An Act of Parliament may make provision for the acquisition
or loss of citizenship of the Republic by any person after the
appointed day.
(3) In this section, the expression:
(a) "acquisition of citizenship" includes acquisition by birth,
descent, marriage, registration, naturalisation or any
other means prescribed by an Act of Parliament;
(b) "loss of citizenship" includes loss by deprivation,
renunciation or any other means prescribed by an Act of
Parliament.
CHAPTER 5
THE LEGISLATURE
Parliament
49. (1) All legislative powers of the Republic shall be vested in
Parliament which shall have the powers and responsibilities
set out in this Constitution.
(2) An Act of Parliament shall have primacy over other forms of
law, but shall be subject to the Constitution.
(3) Any question proposed for decision by the National Assembly
or by the National Council shall be decided by a majority of
the votes of the members present and voting, unless this
Constitution or the National Assembly provides that a
qualified majority shall be required for a decision of a
particular question.
Definitions
50. (1) For the purposes of this Constitution, unless otherwise stated,
"Parliament" shall mean a lower chamber known as the
National Assembly and an upper chamber known as the
National Council.
(2) Subject to this Constitution, an "Act of Parliament" shall be a
Bill which has been introduced into the National Assembly
and passed by a majority of that chamber, which has
subsequently been deliberated on by the National Council,
and, where applicable, voted on by the majority of the
members of that Chamber and has been assented to by the
President in accordance with this Chapter.
Quorum
51. (1) The quorum of each Chamber shall be formed by the
presence of at least one half of the members of that Chamber
entitled to vote, not including the Speaker or presiding
member.
(2) If after such interval as may be prescribed in the rules of
procedure of the Chamber, the Speaker or person acting as
Speaker ascertains that the number of members present is still
less than one-half of all the members of the Chamber, he or
she shall adjourn the Chamber.
Qualifications of members
52. (1) A person shall not be qualified to be nominated or elected as
a member of the Parliament unless that person:
(a) is a citizen of the Republic who upon taking office has
attained the age of twenty-one years in the case of the
National Assembly and the age of thirty-five years in the
case of the National Council;
(b) is able to speak and to read the English language well
enough to take an active part in the proceedings of
Parliament; and
(c) is registered as a voter in a constituency.
Provided that, notwithstanding subsection 1(b), above,
Parliament may make provision to allow persons who are
literate in any other language of Malawi, but have
insufficient command of the English language, to be
eligible as a candidate for nomination and election.
(2) Notwithstanding subsection (1) no person shall be qualified to
be nominated or elected as a member of the Parliament who:
(a) is under a declaration of allegiance to a country other
than the Republic of Malawi;
(b) is, under any law in force in Republic, adjudged or
otherwise declared to be of unsound mind;
(c) has been convicted by a competent court of a crime
involving dishonesty or moral turpitude within seven
years of the date of nomination.
(d) is an undischarged bankrupt, having been adjudged or
otherwise declared bankrupt under any law in force in the
Republic.
(e) holds or acts in any public office or appointment, except
where this Constitution explicitly provides that a person
shall not be disqualified from standing for election solely
on account of holding that office or appointment, or
where that person resigns from that office in order to
stand;
(f) belongs to, and is serving in the armed forces or the
police force;
(g) has been convicted by any court in the last seven years of
any violation of any law relating to election of the
President or election of the members of Parliament under
any Act of Parliament.
Oath of Allegiance
53. (1) Every officer and member of Parliament, before taking his or
her seat, or assuming the duties of his or her office shall take
and subscribe before the Chamber in which they shall sit:
(a) the oath of allegiance in the form prescribed by law; and
(b) such other oaths for the due performance of their
respective offices as may be prescribed by law.
(2) The oaths of both Speakers and of all Deputy Speakers shall
be rendered by and subscribed before the Chief Justice, and
the oaths of all other members of the National Assembly and
National Council, the Clerk to the National Assembly and of
the Clerk to the National Council shall be tendered by the
subscribed before the Speaker or a Deputy Speaker of the
Chamber in which the member shall sit.
The Speaker
54. (1) There shall be a Speaker of the National Assembly and an
Speaker of the National Council who shall be elected by
majority vote of the Chamber in which they sit.
(2) The members of each Chamber shall elect one or more
persons to be Deputy Speaker or Deputy Speaker at the first
sitting after a General Election in the case of the National
Assembly or after a Local Election in the case of the National
Council and after any event which results in a vacancy in the
office of any Deputy Speaker.
(3) The office of Speaker shall become vacant:
(a) on the death or resignation of the Speaker;
(b) if the Speaker ceases to be a member of the Chamber in
which he or she sits;
(c) if the Speaker becomes President, Vice President, a
Minister or a Deputy Minister;
(d) if the Chamber in which the Speaker presides, by a
resolution supported by the votes of not less than two-
thirds of all the members thereof, resolves that the
Speaker be removed from office.
(4) The Speaker, or in the absence of the Speaker, such Deputy
Speaker as the Speaker has nominated, shall preside at every
sitting of each Chamber.
Provided that in the absence of the Speaker and of every
Deputy Speaker, the Chamber may elect one among its
members to act a Speaker for that session or that sitting.
(5) Any person who is elected Speaker, or any person acting as
Speaker, shall discharge his functions and duties and exercise
such powers as he or she has by virtue of that office
independent of the direction or interference of any body or
authority, save as accords with the express will and the
Standing Orders of the Chamber.
(6) Notwithstanding that the Speaker or a person acting as
Speaker has been elected as a member of a political party, he
or she shall not be subject to the control, discipline, authority
or direction of that party or any other political party, in the
discharge of the functions and duties of that office and in the
exercise of the powers of that office.
Casting vote
55. (1) The Speaker of a Chamber shall not have a deliberative vote,
but if the votes of the Chamber over which that
Speaker is presiding are equally divided upon any question,
he or she shall exercise the casting vote.
(2) Any member of the National Assembly or National Council,
other than the Speaker, shall when presiding in the Chamber
of which he is a member, retain his original deliberative vote
as a member and shall also have and exercise a casting vote if
the votes of that Chamber are equally divided.
The Clerk
56. There shall be a Clerk to the National Assembly and a Clerk to the
National Council who shall be public officers and shall assist the
Speaker of the Chamber to which the Clerk is appointed and
perform such other such functions and duties as that Speaker may
direct.
The right to regulate procedure
57. (1) Subject to this Constitution, the National Assembly and the
National Council may regulate their own procedures.
(2) The National Assembly and the National Council may act
notwithstanding any vacancy in its membership being not
more than a half of all its seats.
(3) The presence or participation of any person not entitled to be
present or to participate in the proceedings of each Chamber
shall not invalidate those proceedings.
(4) Each Chamber shall provide access to the press and members
of the public except where a motion is passed with reasons
prohibiting public access in the national interest.
(5) The proceedings of Parliament shall be conducted in the
English language and such other languages as each Chamber
may prescribe in respect of its own proceedings.
(6) Parliament may establish any Committees of their members
and may form Joint Committees for the scrutiny of legislation
and performance of their other functions except voting on
motions and Bills.
Money Bills
58. The National Assembly may, in consultation with the Minister
responsible for Finance:
(1) proceed upon any Bill or any amendment to a Bill that makes
provision for any of the following purposes:
(a) for the imposition of tax or the alteration of tax;
(b) for the imposition of any charge upon the State Revenue
Fund, or the alteration of any such charge;
(c) for the payment, issue or withdrawal from the State
Revenue Fund of any moneys not charged thereon, or
any increase in the amount of such payment, issue or
withdrawal; or
(d) for the composition or remission of any debt due to the
Government.
(2) proceed upon any motion or any amendment to a motion the
effect of which, would be to make provision for any of those
purposes in subsection (a) above; or
(3) receive any petition that, in the opinion of the person
presiding, requests that provision be made for any of those
purposes.
Provided that the National Council shall have the power to
debate or vote upon any motion or receive any Bill to which
this section applies but may not amend or reject such a
motion or Bill.
Delegated legislation
59. (1) The National Assembly may with respect to any particular
Act of Parliament delegate to the Executive the power to
draw up subsidiary legislation within the specification and for
the purposes laid out in that Act.
Provided that no subsidiary legislation shall come into force
unless that legislation:
(a) has been laid before Parliament for no less than thirty
days, or such longer period as the enabling Act of the
National Assembly may prescribe;
(b) has not been rejected by the National Assembly; and
(c) has not been remitted by the National Council.
(2) Notwithstanding subsection (1) the National Assembly shall
not have the power to delegate any legislative powers to the
executive which would affect the fundamental rights of
citizens recognised by this Constitution.
Sessions and sittings
60. (1) Every session of the National Assembly and of the National
Council shall be held at such place within Malawi and shall
commence at such time as each Speaker, in consultation with
the President, may appoint with respect to the Chamber in
which that Speaker presides and the sittings of each Chamber
after the commencement of that session shall be held at such
times and on such days as that Chamber shall appoint.
Provided that:
(a) the President in consultation with Speaker of the relevant
Chamber may summon on extraordinary occasions a
meeting of the National Assembly or the National
Council; and
(b) the President may, in consultation with the Speaker,
prorogue the National Assembly or the National Council.
(2) There shall be at least two sittings of the National Assembly
and of the National Council every year.
Privileges and Immunities of Members
61.
(1) The Speaker, every Deputy Speaker, every member of the
National Assembly and every member of the National
Council shall, except in cases of treason, be privileged from
arrest in going to, returning from, or while in the precincts of
the National Assembly or the National Council, and shall not,
in respect of any utterance that forms part of the proceedings
in the National Assembly or the National Council, be
amenable to any other action or proceedings in any Court,
tribunal or body other than Parliament.
(2) All official reports and publications of Parliament or of its
proceedings or of the proceedings of any Committee of the
Parliament shall be privileged and utterances made in the
Parliament or of any Committee thereof wherever published
shall be protected by absolute privilege.
(3) The National Assembly and the National Council shall each
have the power to conduct investigations and exercise the
power to subpoena the attendance of any person or office
holder whatsoever, as required in connection with the prudent
exercise of the respective functions of each Chamber.
Members interests
62.
(1) A member of the Parliament, where he or she has a direct or
indirect material interest in a matter being discussed by the
Chamber of which he or she is a member:
(a) disclose such interest to that Chamber; and
(b) not be entitled to vote on that matter without leave of that
Chamber.
(2) Where a member of the Parliament fails to disclose a material
interest in accordance with subsection (1) that member shall
be guilty of a contempt of the Chamber of which he or she is
a member.
Composition of the National Assembly
63. (1) The National Assembly shall be comprised of such number of
seats, representing every constituency in Malawi as shall be
determined by the Electoral Commission, created under this
Constitution.
(2) Each constituency shall freely elect any person, subject to this
Constitution and an Act of Parliament, to represent it as a
member of the National Assembly in such manner as may be
prescribed by this Constitution or an Act of Parliament.
Vacancies in the National Assembly
64. (1) The seat of a member of the National Assembly shall become
vacant:
(a) if the National Assembly has been dissolved;
(b) if a member dies or resigns his seat;
(c) if a member ceases to be citizen of the Republic;
(d) if a member assumes the office of President or Vice
President;
(e) if any circumstances arise that, if he or she were not a
member of the National Assembly, would cause that
member to be disqualified for election under this
Constitution or any other Act of Parliament;
(f) if the National Assembly declares a member's seat vacant
in accordance with such rules and Standing Orders as
may permit or prescribe the removal of a member for
good and sufficient reason provided that they accord with
the principles of Natural Justice; or
(g) if a member is subject to recall by his constituency in
accordance with an Act of Parliament and the provisions
of this Constitution.
(2) The Speaker of the National Assembly shall give notice in the
Gazette in the event that the seat of any member of the
Assembly shall become vacant under this section.
Provided that:
(a) the National Assembly shall make provision for holding
by-elections to fill any vacancy that shall occur;
(b) any by-election to fill any vacancy that shall occur shall
be held as expeditiously as possible, and in no event later
that ninety days after the seat of any member of the
National Assembly shall become vacant; and
(c) any member elected at a by-election shall serve until such
time as his seat becomes vacant in accordance with
subsection (1).
(3) The Speaker may, upon a motion of the National Assembly,
postpone the declaration of a vacant seat for such period as
that motion prescribes so as to permit any member to appeal
against a decision:
(a) that member currently holds the seat that is to be
declared vacant;
(b) there is a right to appeal against that decision to a court;
and
(c) the decision being appealed is such that it which would
require that member to vacate his seat in accordance with
this section.
Recall of members
65. (1) Every member of the National Assembly shall be liable to be
recalled by his or her constituency within the meaning of this
section.
(2) A member of the National Assembly shall be subject to recall
by his or her the constituency in order to contest another by-
election, if a petition of recall has been upheld by the
Electoral Commission, where the petitioner:
(a) is a registered voter in the constituency that the member
being recalled has been elected to represent;
(b) has proved, on a balance of probabilities, that there is a
sufficient proportion of the electorate within that
constituency, being not less than half the total of
registered voters, who desire that the seat representing
that constituency should be contested in a by-election.
(3) Where there has been a successful petition of recall, in
accordance with subsection (1) the decision of the Electoral
Commission shall be notified to the Speaker of the National
Assembly who shall, on such notification, declare the seat
vacant and a by-election shall be announced.
Crossing the floor
66. (1) The Speaker shall declare vacant the seat of any member of
the National Assembly who was, at the time of his election, a
member of one political party represented in the National
Assembly, other than by that member alone but who has
ceased to be a member of that party and has joined another
party represented in the National Assembly.
Provided that:
(a) a member of the National Assembly who was elected as
an independent member of the National Assembly and as
such was not a member of a party represented in the
National Assembly, shall not, solely by reason of joining
a party represented in the National Assembly, have his
seat declared vacant; and
(b) a member of the National Assembly, who was a member
of a party represented in the National Assembly at the
time of his election, but has ceased to be a member of
that party and has thereafter declared himself or herself
as not being a member of any party represented in the
National Assembly, shall not have his seat declared
vacant, under this section, unless he or she subsequently
joins another party within the life of that Parliament.
(2) Notwithstanding subsection (1), all members of all parties
shall have the absolute right to exercise a free vote in any and
all proceedings of the National Assembly, and shall not have
their seat declared vacant solely on account of their voting in
contradiction to the recommendations of a party, represented
in the National Assembly, of which they are a member.
Functions and powers of the National Assembly
67. The National Assembly shall be a directly elected chamber whose
primary purpose shall be legislative and which shall have power,
subject to this Constitution, to:
(1) receive, amend, accept or reject Government Bills and Private
Bills;
(2) initiate Private Members Bills on the motion of any member
and amend, accept or reject all Private Members Bills;
(3) receive, amend, accept or reject any Bills remitted from the
National Council;
(4) debate and vote motions in relation to any matter including
motions to indict and convict the President or Vice-President
by impeachment;
(5) exercise such other functions and powers as are conferred on
it by this Constitution; and
(6) take all actions incidental to and necessary for the proper
exercise of its functions.
Dissolution of the National Assembly
68. (1) The National Assembly, shall continue for five years from the
date of its first sitting after any dissolution and then shall
stand dissolved.
(2) Whenever the National Assembly is dissolved a general
election of members of the National Assembly shall be held
within ninety days of the date of the dissolution and the date
of a session of the National Assembly shall be appointed by
the President to commence within forty five days of the date
appointed by the Electoral Commission as the polling day for
the election or, if more than one polling day is appointed,
within forty five days of the last polling day.
Composition of the National Council
69. The National Council shall consist of:
(1) two Local Delegates from each District being one man and
one woman, registered as voters in that District and elected
by the Council of that District in secret ballot within thirty
days of each local government election;
(2) twelve seats shall be occupied by Chiefs Delegates;
(a) four Chiefs elected in secret ballot by a caucus of Chiefs
to be held in Mzuzu within thirty days of any local
government election;
(b) four Chiefs elected in secret ballot by a caucus of Chiefs
to be held in Lilongwe within thirty days of any local
government election;
(c) four Chiefs elected in secret ballot by a caucus of Chiefs
to be held in Blantyre within thirty days of any local
government election;
(3) ten seats being composed of two Sector Representatives from
each of the following sectors of society:
(i) health;
(ii) education;
(iii)farming;
(iv) business; and
(v) trade unions,
who shall be elected by a two thirds majority of members of
the National Council on the basis of nominations by the
Nominations Committee provided for in subsection (6)
(4) six persons General Representatives and who shall be such
persons as are generally recognised for their outstanding
contribution to the social, cultural, or technological
development of the nation, who shall be elected by a two
thirds majority of members of the National Council on the
basis of nominations by the Nominations Committee provided
for by subsection (6).
(5) four Clerical Representatives of the different religious faiths
in Malawi, who shall be elected by a two thirds majority of
members of the National Council on the basis of nominations
of the Nominations Committee prescribed by subsection (6.
(6) There shall be a Nominations Committee which shall be
formed within thirty days of the each Local Government
election for the purpose of nominating the Representatives
referred to in this section and which shall be made up of the
Speaker of the National Council, the Speaker of the National
Assembly, the Ombudsman, and seven members, being
Delegates of the National Council.
Provided that any Representative may be nominated for an
indefinite number of subsequent terms, unless otherwise
disqualified or removed.
Vacancies in the National Council
70. (1) The seat of a member of the National Council shall become
vacant:
(a) if the National Council has been dissolved;
(b) if a member dies or resigns his seat;
(c) if a member ceases to be citizen of the Republic;
(d) if a member assumes the office of President or Vice
President, Minister or Deputy Minister;
(e) if any circumstances arise that, if he or she were not a
member of the National Council, would cause that
member to be disqualified for nomination or election
under this Constitution or any other Act of Parliament; or
(f) if the National Council declares a member's seat vacant
in accordance with such rules and Standing Orders as
may permit or prescribe the removal of a member for
good and sufficient reason provided that they accord with
the principles of Natural Justice.
(2) The Speaker of the National Council shall give notice in the
Gazette in the event that the seat of any member of the
Council shall become vacant under this section.
(3) Where the seat of a member of the National Council is
declared vacant by virtue of this section:
(i) if that member is a Local Government Delegate,
then the Electoral Commission shall notify the
District Council by which that Local Government
Delegate was elected to declare an election within
thirty days of the seat becoming vacant;
(ii) if that member is a Chiefs Delegate, then the
Speaker of the National Council shall notify the
Paramount Chiefs so as to convene the relevant
caucus of Chiefs for the election of another
delegate;
(iii)if that member is a Sector Representative, a General
Representative or a Clerical Representative, then the
Speaker of the National Council shall convene the
Nominations Committee of the National Council
who shall put forward nominations for appointment
to the National Council.
Functions and powers of the National Council
71. The National Council shall be an indirectly elected chamber whose
primary purpose shall be deliberative and which shall have power,
subject to this Constitution, to:
(a) receive, scrutinize and amend Bills from the National
Assembly, not being Money Bills;
(b) vote motions to confirm or remit Bills passed by the
National Assembly;
(c) debate any issue at its own motion, initiate Private
Members Bills and vote motions in respect of any matter
including motions to convict the President or Vice-
President by impeachment;
(d) carry out such other functions as may be delegated to it
by an Act of Parliament;
(e) exercise such other functions and powers as are conferred
on it by this Constitution; and
(f) take all actions incidental to and necessary for the proper
exercise of its functions.
Scrutiny by the National Council
72. (1) All Bills shall be laid before the National Council.
(2) Any member of the National Council may, in respect to a Bill
laid before the National Council;
(a) within fourteen days of that Bill being laid, raise a
motion to debate that Bill in full readings; or
(b) after fourteen days, but before the lapse of forty days,
raise a motion to remit the Bill to the National Assembly.
(3) Any Bill laid before the National Council which has not been
the subject of a motion to debate within the meaning of this
section shall after the lapse of forty days, be presented for
Presidential Assent.
(4) Where a Bill is debated under subsection (2)(a), it shall be
passed back to the Speaker of the National Assembly who
shall certify that it is:
(a) without amendment, in which case the Speaker shall
present it for Presidential Assent; or
(b) amended, in which case the Bill shall be laid before the
National Assembly for fourteen days, provided that if no
motion to debate the Bill in full is raised by any member
of the National Assembly within that time it shall be
presented in amended form for Presidential Assent.
(5) Where a Bill has been remitted by the National Council by
virtue of a majority vote in favour of a motion under
subsection (2)(b):
(a) the National Council shall give reasons for that
remittance; and
(b) the Speaker of the National Assembly shall table the Bill
which may be further debated and amended, and if
passed by a majority of all the seats of the National
Assembly may be presented for Presidential Assent.
(6) Where a Private Members Bill has been initiated and passed
by the National Council it shall be sent to the Speaker of the
National Assembly who shall table the Bill which may be
further debated and amended, and if passed by a majority of
the National Assembly the Bill may be presented for
Presidential Assent.
Dissolution of the National Council
73. The National Council shall continue from the date of its first
sitting, being no later than thirty days after a Local Government
election after any dissolution until it stands dissolved which shall
take place 90 days before the next Local Government elections.
Presidential Assent
74. (1) Where a Bill is presented to the President for assent the
President shall either assent or withhold assent.
(2) Where the President withholds assent to a Bill, the Bill shall
be returned to the Speaker of the National Assembly by the
President with a notification that the President's assent has
been withheld including reasons therefor, and the Bill shall
not be again debated by the National Assembly until after the
expiry of twenty-one days from the date of the withholding of
that notification.
(3) If the Bill is debated again and passed by a majority of the
National Assembly at any time between the date of the expiry
of the twenty-one days referred to in subsection (2) and six
months from that date, the Bill shall be again presented for
Presidential Assent.
(4) Where a Bill is again presented to the President for assent in
accordance with subsection (3), the President shall assent to
the Bill within twenty-one days of its presentation.
(5) When a Bill that has been duly passed is assented to in
accordance with this Constitution the Clerk shall cause it to
be published immediately in the Gazette.
The coming into force of laws
75. No law made by Parliament shall come into force until it has been
published in the Gazette, but Parliament may prescribe that a law
shall not come into force until some later date, after its publication
in the Gazette.
CHAPTER 6
ELECTIONS
The Electoral Commission
76. (1) There shall be an Electoral Commission which shall consist
of a Chairman who shall be a judge nominated in that behalf
by the Judicial Service Commission and such other members,
not being less than six, as may be appointed in accordance
with an Act of Parliament.
(2) A person shall not be qualified to hold the office of a
Member of the Electoral Commission if that person is a
Minister, Deputy Minister, a member of Parliament or a
public officer.
(3) Subject to this section, a person shall cease to be a member
of the Electoral Commission:
(a) at the expiration of four years from the date of his
appointment, unless reappointed to a new four-year term;
or
(b) if any circumstances arise that, if that person were not a
member of the Electoral Commission, he or she would
be disqualified for appointment as such.
(4) A member of the Electoral Commission may be removed
from office by the President on the recommendation of the
Public Appointments Committee of the National Assembly on
the grounds of incapacity or incompetence in the performance
of the duties of that office.
Powers and Functions
77. (1) The Electoral Commission shall exercise such functions in
relation to elections as may be conferred upon it by this
Constitution or by an Act of Parliament.
(2) The duties and functions of the Electoral Commission shall
include:
(a) to determine constituency boundaries impartially on the
basis of ensuring that constituencies contain
approximately equal numbers of voters eligible to
register, subject only to consideration of:
(i) population density;
(ii) ease of communication; and
(iii)geographical features and existing administrative
areas.
(b) to review existing constituency boundaries at intervals of
not more than five years and alter them in accordance
with the principles laid down in subsection (2)(a).
(c) to determine electoral petitions and complaints relating to
the conduct of any elections to ensure compliance as
prescribed under this Constitution and any other Act of
Parliament, subject to the right of any petitioner or
complainant to appeal to the High Court against
determinations of the Electoral Commission, with respect
to any electoral petition that the petitioner has laid before
the Electoral Commission; and
(d) to perform such other functions as may be prescribed by
an Act of Parliament.
(3) The Electoral Commission shall exercise its powers, functions
and duties under this section independent of any direction or
interference by other person or authority.
(4) Without prejudice to subsection (3):
(a) the High Court shall have jurisdiction entertain
applications for judicial review of the exercise of powers
by the Electoral Commission to ensure that they were
duly exercised in accordance with this Constitution or
any Act of Parliament; and
(b) The National Assembly shall confirm all determinations
by the Electoral Commission with regard to the drawing
up of constituency boundaries or shall reject such
determinations.
Provided that the National Assembly may not of their own
motion amend constituency boundaries, save with the written
approval and recommendation of the Electoral Commission.
The Franchise
78. (1) All persons shall be eligible to vote in any General Election,
Presidential Election, local government election or
referendum, subject only to this section.
(2) Subject to subsection (3), a person shall be qualified to be
registered as a voter in a constituency if, and shall not be so
qualified unless, at the date of the application for registration
that person:
(a) is a citizen of the Republic;
(b) has attained the age of eighteen years; and
(c) is ordinarily resident in that constituency or was born
there or is employed or carries on a business there.
Provided that a person shall be qualified to be registered as a
voter in a constituency, even if not a citizen of the Republic,
after having been ordinarily resident in the Republic for seven
years.
(3) No person shall be qualified for registration as a voter in a
constituency if that person:
(a) is under any law in force in the Republic, adjudged or
otherwise declared to be of unsound mind;
(b) is under sentence of death imposed by a court having
jurisdiction in the Republic, either before or after the
appointed day;
(c) is disqualified from registration as a voter on the grounds
of his having been convicted of any violation of any law
relating to elections passed by Parliament and in force at
the time of, or after the commencement of this
Constitution, or for infringement of subsection (4).
(4) Where any person is qualified to be registered in more that
one constituency as a voter he or she may be so registered
only in one constituency.
CHAPTER 7
THE EXECUTIVE
The President
79. There shall be a President who shall be the Head of State and
Government and Head of the Executive and the Commander-in-
Chief of the Armed Forces.
The Vice-President
80. There shall be a Vice-President who shall assist the President and
who shall exercise the powers and functions conferred on him or
her by this Constitution and by any Act of the National Assembly.
Election
81. (1) The President shall be elected in accordance with the
provisions of this Constitution and in such manner as may be
prescribed by an Act of the National Assembly.
(2) The President shall be elected by a majority of the electorate
through direct, universal and equal suffrage.
(3) Every Presidential candidate shall at the time of his
nomination declare who shall be his Vice President if he is
elected.
(4) The Vice President shall not be directly elected.
(5) A person shall only be qualified for nomination for election
as President or Vice-President if that person:
(a) is a citizen of the Republic of Malawi by birth or
descent;
(b) has attained the age of thirty-five years.
(6) No person shall be eligible for nomination as candidate for
election as President or Vice-President if that person:
(a) has been adjudged or declared to be of unsound mind;
(b) is an undischarged bankrupt having been declared
bankrupt under a law of the Republic;
(c) has been convicted by a competent court of a crime
involving dishonesty or moral turpitude within seven
years of the date of nomination.
(d) is under a declaration of allegiance to a foreign country.
(e) is the holder of a public office or a member of the
National Assembly, unless that person first resigns.
Oath or Affirmation
82. (1) Before a person elected to be President or appointed to be
Vice President takes office that person shall take the
following oath which shall be administered in public by the
Chief Justice:
" I ....... do solemnly swear that I will well and truly
perform the functions of the high office of President (or Vice-
President) of the Republic of Malawi, and that I will preserve
and defend the Constitution, and that I will do right to all
manner of people according to law without fear or favour,
affection or ill-will. So help me God".
(2) Instead of taking an Oath the President or Vice President,
may, if he thinks fit, make an affirmation which shall be in
the like form with the substitution of "affirm" for "swear",
and the omission of the final sentence.
(3) A person elected to be President or nominated to be Vice-
President shall be sworn into office, in accordance with sub-
section (1), within thirty days of being elected.
(4) The President and Vice-President shall hold office until such
time as his or her successor is sworn in.
Remuneration
83. (1) The President and Vice-President shall receive such salary,
allowance or pension as may from time to time be determined
by an Act of the National Assembly.
(2) The salary of the President and Vice-President shall not be
reduced without their consent.
Term of Office
84. (1) A President and the Vice President shall hold office for five
years.
(2) A President or Vice-President may serve a maximum of two
consecutive terms.
(3) Whenever there is a vacancy in the office of President the
Vice President shall assume that office.
Provided that the Vice President shall only hold office as
Acting President until the expiry of ninety days or, where
four years of a Presidential term have expired, for the rest of
that Presidential term, and thereafter a Presidential election
shall be held
85. If the Vice-President dies or resigns from office, the vacancy shall
be filled for the unexpired period of that term by a person
appointed by the President.
86. If at any time both the office of President and Vice President
become vacant then the Cabinet shall elect from among its
members an Acting President and Acting Vice President who shall
hold office for no more than ninety days or, where four years of a
Presidential term have expired, for the rest of that Presidential
term, and thereafter a Presidential election shall be held.
Removal from office
87. (1) The President and Vice President shall be removed from
office where the National Assembly has indicted and
convicted the President or Vice President by impeachment.
Provided that any such impeachment proceedings shall be in
full accord with the principles of Natural Justice and that:
(a) indictment and conviction by impeachment shall only be
on the grounds of serious violation of the Constitution or
serious breach of the written laws of the Republic;
(b) indictment on impeachment shall require the affirmative
vote of two-thirds of the members of the National
Assembly in a Committee of the whole house;
(c) the Speaker shall preside over proceedings for indictment
by impeachment and the Chief Justice shall preside over
trial on impeachment;
(d) conviction on impeachment shall require the affirmative
vote of two-thirds of the members of both Chambers;
(e) conviction in cases of impeachment shall cause the
removal, and disqualification from future office, of the
office holder; and
(f) Conviction by way of impeachment shall not act as a bar
to legal proceedings.
88. (1) Whenever the President is incapacitated so as to be unable to
discharge the powers and duties of that office, the Vice
President shall act as President, until such time in the
Presidential term as the President is able to resume his
functions.
(2) The President shall not be deemed to be incapacitated for the
purposes of this section until and unless:
(a) there is a written declaration, certified by a board of
independent medical practitioners, that the President is
unable to discharge the duties of the Presidency;
(b) the declaration is signed by the Vice President and a
majority of the Cabinet, holding office at that time; and
(c) the declaration is submitted by the Vice President to the
Speaker of the National Assembly.
(3) Upon submission of a declaration under subsection (2), the
Vice President shall immediately assume the powers and
duties of the Presidency as Acting President.
(4) Where a President has been declared to be incapacitated in
accordance with subsection (2) the President may at any time
thereafter submit to the National Assembly a written
declaration stating his fitness to carry on the duties of the
Presidency.
Provided that:
(a) upon receipt of such a declaration from the President, the
National Assembly shall have thirty days to determine
whether the President is in fact so incapacitated as to be
unable to discharge the duties of the presidency; and
(b) if the National Assembly determines that he remains so
incapacitated so as to be unable to discharge the duties of
the Presidency, by an affirmative vote of two-thirds of all
of its members, the Vice President shall continue to act
as President until the National Assembly determines that
the President is again fit to assume the duties and powers
of his office; or
(5) If the National Assembly determines that the President is no
longer so incapacitated as to be unable to discharge the duties
of the Presidency, by an affirmative vote of two-thirds of the
National Assembly, the President shall resume the duties of
his office within thirty days of that vote.
(6) If, on the expiry of twelve months from the date of the
Speaker being notified of the incapacity of the President, the
National Assembly has not determined that the President is fit
to perform his duties in accordance with subsection (4), then
a Presidential election shall be held.
(7) These provisions shall apply mutatis mutandis to the
incapacity of the Vice President except that the certificate
shall then be signed by the President and be submitted to the
Speaker by the President.
Responsibilities of the President
89. (1) The President shall be responsible for the observance of the
provisions of this Constitution by the executive and shall as
head of state defend and uphold the Constitution as the
supreme law of the land.
(2) The President shall provide executive leadership in the
interest of national unity in accordance with this Constitution
and the law of the Republic.
(3) The President shall not hold any other public office and shall
not perform remunerative work outside the duties of his or
her office and shall fully disclose all of his or her assets and
business interests upon election.
(4) The President and members of the Cabinet shall not use their
office for personal gain or place themselves in a situation
where their material interests conflict with the responsibilities
and duties of his or her office.
Powers and Functions of the President
90. (1) The President shall have the following powers and duties:
(a) to promulgate Bills and assent to Bills duly passed by
Parliament;
(b) to convene and preside over meetings of the Cabinet;
(c) to confer honours;
(d) to make such appointments as may be necessary in
accordance with powers conferred upon him or her by
this Constitution or any Act of the Parliament;
(e) subject to this Constitution to appoint, accredit, receive
and recognise ambassadors, plenipotentiaries, diplomatic
representatives and other diplomatic officers, consuls and
consular officers;
(f) to negotiate, sign, enter into and accede to international
agreements or to delegate such power to Ministers,
Ambassadors and High Commissioners;
(g) to appoint commissions of enquiry;
(h) to refer disputes of a constitutional nature to the High
Court;
(i) to proclaim referenda and plebiscites in accordance with
this Constitution or an Act of Parliament;
(2) The President may pardon convicted offenders, grant stays of
execution of sentence, reduce sentences, or remit sentences,
provided that:
(a) decisions under this subsection shall be taken in
consultation with an Advisory Committee on the Granting
of Pardon, the composition and formation of which shall
be determined by an Act of Parliament;
(b) judgements in cases of impeachment shall not be liable to
pardon by the President.
(3) The President shall each year immediately before the
consideration of the official budget attend Parliament and
shall:
(a) address Parliament on the state of the nation and on the
future policies of the Government at that time;
(b) report on the policies of the previous year; and
(c) respond to questions.
(4) The President shall exercise all other powers reasonably
necessary and incidental to the functions of his office as are
prescribed by this Constitution or an Act of Parliament.
(5) The powers and functions of the President shall be exercised
by him or her personally or by a member of the Cabinet or
by a government official to whom the President has delegated
such power in writing.
Confirmation of Presidential Acts
91. (1) Decisions of the President shall be expressed in writing under
his or her signature.
(2) The signature of the President on any instrument shall be
confirmed by the Seal of the Republic.
Immunity
92. (1) No person holding the office of President or performing the
functions of President may be sued in any civil proceedings
but the office of President shall not be immune to orders of
the Courts concerning rights and duties under this
Constitution.
(2) No person holding the office of President shall be charged
with any criminal offence in any Court except where he has
been charged with an offence for which he has been indicted
and convicted on impeachment.
(3) After a person has vacated the office of President, he or she
shall not be personally liable for acts done in an official
capacity during his or her term of office.
Cabinet
93. (1) There shall be a Cabinet consisting of the President, the Vice-
President and such Ministers and Deputy Ministers as may
from time to time be appointed by the President.
(2) The Cabinet shall exercise the powers and functions assigned
to it by this Constitution or an Act of Parliament and shall be
responsible for advising the President with respect to the
policies of the Government and with respect to such other
matters as may be referred to it by the President.
(3) Cabinet meetings shall be presided over by the President, or
in the temporary absence of the President by the Vice-
President.
(4) There shall be a Secretary to the Cabinet who shall be
appointed by the President and who shall:
(a) have charge of the Cabinet office;
(b) be responsible, subject to the directions of the Cabinet,
for arranging the business, and keeping the minutes of
the Cabinet;
(c) convey the decisions of the Cabinet to the appropriate
persons or authorities; and
(d) have such other functions as the Cabinet may direct.
Government Departments
94. (1) There shall be Ministers and Deputy Ministers who shall be
appointed by the President and who shall exercise such
powers and functions, including the running of Government
Departments as may be prescribed by the President subject to
this Constitution.
(2) Every Government Department shall be under the supervision
of a Principal Secretary who shall be under the direction of a
Minister or Deputy Minister.
Appointment of Ministers
95. (1) The President shall have the power to appoint Ministers or
Deputy Ministers and to fill vacancies in the Cabinet.
(2) Every Minister or Deputy Minister must be a citizen of the
Republic and must be a person qualified to stand as a
candidate for election to the National Assembly in accordance
with the Constitution.
96. (1) Upon the motion of the National Assembly the Public
Appointments Committee of the National Assembly shall be
empowered to summon a person who is nominated for the
office of Minister or Deputy Minister, before that person is
appointed, in order to question that person as to his or her
competence and character.
(2) Notwithstanding subsection (1), the approval of the National
Assembly and the Public Appointments Committee of the
National Assembly shall not be required for the appointment
of any Minister or Deputy Minister.
(3) No Minister or Deputy Minister shall assume office unless an
oath or solemn affirmation was taken and executed in public
in a manner prescribed by an Act of the National Assembly.
(4) The President shall have the power to remove Ministers or
Deputy Ministers from their posts.
(5) The President shall be obliged to terminate the appointment
of any member of the Cabinet if the National Assembly by a
majority of two thirds of its members passes a motion of no
confidence in that member.
Duties and Functions of the Cabinet
97. (1) The members of the Cabinet shall have the following
functions:
(a) advise the President;
(b) to direct, co-ordinate and supervise the activities of
Government Departments, including para-statal
enterprises;
(c) to initiate Bills for submission to the National Assembly;
(d) to prepare, explain and formulate for the Parliament the
budget of the State and its economic programmes;
(e) to be available to Parliament for the purposes of
answering any queries and or participating in any debate
pertaining to the content of government policies;
(f) to assist the President in determining what international
agreements are to be concluded or acceded to and to
inform Parliament thereon;
(g) to take responsibility for the implementation and
administration of laws; and
(h) to carry out such other functions reasonably necessary for
the performance of their duties as prescribed by this
Constitution, the President or an Act of Parliament.
(2) In performing the duties and functions referred in this section
the Cabinet shall make legislative proposals available in time
in order to permit sufficient canvassing of expert and public
opinion.
Ministerial Accountability
98. All Ministers shall be accountable to the President for the
administration of their own Departments.
CHAPTER 8
THE ADMINISTRATION OF JUSTICE
The Independence and Jurisdiction of the courts and the judiciary
99. (1) All courts and all persons presiding over those courts shall
exercise their functions, powers and duties independent of the
influence and direction of any other person or authority.
(2) The judiciary shall have jurisdiction over all issues of a
judicial nature and shall have exclusive authority to decide
whether an issue is within its competence.
The Supreme Court
100. (1) There shall be a Supreme Court of Appeal for Malawi, which
shall be a superior court of record and shall have such
jurisdiction and powers as may be conferred on it by this
Constitution or by any other law.
(2) The Supreme Court of Appeal shall be the highest appellate
court and shall have jurisdiction to hear appeals from the
High Court and such other Courts and Tribunals as an Act of
Parliament may prescribe.
Composition of the Supreme Court of Appeal
101. (1) The Justices of the Supreme Court of Appeal shall be:
(a) the Chief Justice;
(b) no less than three Justices of Appeal.
(2) When the Supreme Court of Appeal is determining any
matter, other than an interlocutory matter, it shall be
composed of an uneven number of Justices, not being less
than three.
(3) A Justice of the Supreme Court of Appeal may only be
appointed in accordance with section 107.
Acting Justices of the Supreme Court
102. (1) If, by reason of a vacancy or vacancies of office, or by
reason of the operation of section 103, there are less than
three serving Justices of Appeal, then the Chief Justice may
appoint such High Court judges, as may be approved by the
Judicial Service Commission, to serve as Acting Justices of
Appeal.
(2) An Acting Justice of Appeal shall hold that office only until
such time as he is appointed Justice of Appeal or Chief
Justice in accordance with section 107 provided that he shall
cease to serve as a Justice of Appeal if:
(a) there are more than three serving Justices of Appeal,
either by reason of a vacancy or vacancies being filled in
accordance with section 107 or where such Justices of
Appeal or Acting Justices of Appeal as have been
excused from serving on the Supreme Court are able to
resume their duties in accordance with section 103.
(b) he is excused from his duties as a an Acting Justice of
Appeal in accordance with section 103.
Relief from duties
103. (1) A Justice of Appeal or Acting Justice of Appeal shall be
excused from serving on the Supreme Court of Appeal only
for such time as is reasonably necessary and only:
(a) by reason of that Justice or Acting Justice of Appeal
having been a party to proceedings in a lower court, the
decision of which is being appealed to the Supreme Court
of Appeal; or
(b) for such other reason that the Chief Justice or Judicial
Service Commission considers would prevent him from
performing the duties of his office.
(2) For the purposes of this section "a party to proceedings" shall
include any person exercising of a judicial function in those
proceedings, or having been retained for the purposes of
legally representing a party to the proceedings, or being
retained for the purposes of legal advice to a party to the
proceedings.
The High Court
104. (1) There shall be a High Court for the Republic which shall
have unlimited original jurisdiction to hear and determine any
civil or criminal proceedings under any law.
(2) The High Court shall have original jurisdiction to review the
laws for conformity with this Constitution and the actions of
Government for conformity with this Constitution and any
law, save as otherwise provided by this Constitution and shall
have such other jurisdiction and powers as may be conferred
on it by this Constitution and any other law.
Composition of the High Court
105. The Judges of the High Court shall be:
(1) the Chief Justice; and
(2) such number of judges, not being less than two, as may be
prescribed by any written law.
Subordinate Courts
106. (1) There shall be such courts, subordinate to the High Court as
may be prescribed by an Act of the National Assembly which
shall be presided over by professional magistrates and lay
magistrates.
(2) Parliament may make provision for local courts presided over
by such lay magistrates or chiefs, provided that the
jurisdiction of shall be limited exclusively to civil cases at
customary law and certain minor common law and statutory
civil cases as prescribed by an Act of Parliament.
The Appointment of the Judiciary
107. (1) The Chief Justice shall be appointed by the President and
confirmed by the National Assembly by a majority of two
thirds of the members present and voting.
(2) All other judicial officers shall be appointed by the President
on the recommendation of the Judicial Service Commission.
(3) A person holding the office of Chief Justice or any other
judicial office shall hold that office until the age of seventy.
Provided that a person may not be removed from a judicial
office by the Judicial Service Commission except in
accordance with section 115.
(4) For the purposes of this Chapter "judicial officer" shall mean,
Justice of Appeal, Acting Justice of Appeal, Judge or Acting
Judge of the High Court, unless otherwise provided.
108. (1) A person shall not be qualified for appointment as a judicial
officer unless that person:
(a) is, or has been, a judge of a court having unlimited
jurisdiction in criminal or civil proceedings; or
(b) is entitled to practise as an advocate or a solicitor in such
a court;
(2) For the purposes of this section, a person shall be regarded as
entitled to practise as a an advocate or solicitor if that person
has been called, enroled or otherwise admitted as such and
has not been subsequently disbarred or removed from the roll
of advocates or solicitors notwithstanding that the person:
(a) holds or acts in any office the holder of which, by reason
of his office, precludes that person from practising in
court; or
(b) does not hold a practising certificate and has not satisfied
any other like condition of his being permitted to
practise.
Vacancy
109. (1) If the office of Chief Justice is vacant, or if the Chief Justice
is for any reason unable to perform the functions of his
office, then, until a person has been appointed to and has
assumed the functions of that office, or until the person
holding that office has resumed those functions, as the case
may be, those functions shall be performed by the most
senior judge then sitting on the High Court.
(2) If any judicial office vacant or if any judicial officer is
appointed to act as Chief Justice, or is for any reason unable
to perform the functions of his office, the President, on the
recommendations of the Judicial Service Commission, may
appoint a person qualified for appointment as judicial officer
under this section to act in that office.
Remuneration
110. (1) All judicial officers shall receive a salary for their services,
and on retirement such pension, gratuity or other allowance
as may from time to time be determined by the National
Assembly.
(2) The salary and allowances of judicial officers shall not
without their consent be reduced during their period of office.
(3) The salary, pension, gratuity or other allowance received by a
Judicial officer shall be a charge upon the Consolidated Fund.
Judicial Oath
111. A judicial officer shall not enter upon the duties of his or her
office unless that officer has taken and subscribed the oath of
allegiance and such oath for the due execution of his office in such
manner and form as may be prescribed by law.
The Judicial Service Commission
112. There shall be a Judicial Service Commission for the regulation of
judicial officers and which shall have such jurisdiction and powers
as may be conferred on it by this Constitution or by any other law,
subject to this Constitution.
113. The Judicial Service Commission shall consist of:
(1) the Chief Justice who shall be the Chairman; and
(2) the Chairman of the Civil Service Commission, or such as
other member as may for the time being be designated in that
behalf by the Chairman of the Civil Service Commission
(3) such Justice of Appeal or Judge as may for the time being be
designated in that behalf by the President acting after
consultation with the Chief Justice
(4) such legal practitioner as may for the time being be
designated in that behalf by the Law Society of Malawi; and
(5) such Resident Magistrate or Magistrate as may for the time
being be designated in that behalf by the Malawi Magistrates'
Association
Powers of the Judicial Service Commission
114. The Judicial Service Commission shall have the authority to:
(1) nominate persons for judicial office, subject to section 107;
(2) exercise such disciplinary powers in relation to persons in
judicial office as shall be prescribed by an Act of
Parliament, subject to this Constitution
(3) recommend, subject to section 115, the removal of a person
from judicial office
(4) make such representations to the President as may be
prescribed by an Act of Parliament, subject to this
Constitution; and
(5) exercise such other powers as are reasonably necessary for
the performance of their duties.
Provided that nothing in this section shall prejudice the right of
any person in judicial office who was the subject of any decision
by the Judicial Service Commission to appeal to the Supreme
Court against that decision.
Powers of removal
115. (1) The Judicial Service Commission shall have exclusive powers
of removal of a person in judicial office but no person shall
be removed from judicial office except where that person is
adjudged by the Judicial Service Commission to be:
(a) incompetent in the exercise of his judicial office;
(b) compromised in the exercise of his or her judicial
functions to the extent that his or her ability to
impartially dispense justice is significantly impaired;
(c) otherwise incapacitated; or
(d) over the age of seventy-five
Provided that the removal of a person in judicial office may
not be recommended by the Judicial Service Commission,
save that at least three of the members of the Commission are
of the opinion that one of the criteria in this subsection has
been satisfied.
(2) If the Judicial Service Committee recommends that a person
holding judicial office should be removed, the President shall
remove that person, subject only to the approval of the Public
Appointments Committee
(3) For the purposes of section 114 and section 115 the meaning
of "judicial officer" shall include a person holding the office
of:
(a) Justice of Appeal or Acting Justice of Appeal;
(b) High Court Judge;
(c) Registrar or Deputy Registrar of the Supreme Court of
Appeal or High Court; or
(d) Chief Magistrate, Resident Magistrate or Magistrate
The Attorney General
116. (1) There shall be the office of Attorney General, who shall be
principal legal adviser to the Government.
(2) Such powers as are vested in the office of the Attorney
General may be exercised by the person appointed to that
office or such other persons in the public service, acting as
that the subordinates of that person in accordance with his or
her general and specific instructions.
(3) Appointment to the office of Attorney General shall be made
by the President on the recommendation of the Judicial
Service Commission.
(4) The office of Attorney General shall become vacant after the
person holding that office has served for five years, or on the
resignation of the President, whichever is sooner, provided
that:
(a) the person holding that office may be nominated for such
further terms, not exceeding five years, as the President
deems appropriate, subject to confirmation by the Public
Appointments Committee of the National Assembly.
(b) a person holding the office of Attorney General may be
subject to removal by the President in conjunction with
Judicial Service Commission only by reason of that
person being:
(i) incompetent in the exercise of his or her duties;
(ii) compromised in the exercise of his or her duties to
the extent that his or her ability to exercise his
functions impartially is in serious question;
(iii)otherwise incapacitated; or
(iv) over the age of seventy five.
(c) the removal of a person holding the office of Attorney
General shall not be effected by the President, save that
at least three of members of the Judicial Service
Commission are of the opinion that one of the criteria in
this section has been satisfied and without prejudice to
the person being removed from the office having the
right to appeal to the High Court.
(5) Any person appointed to the office of Attorney General or
exercising powers on behalf of that office shall exercise such
powers as are conferred on him or her by this section
independent of the direction and control of any authority or
person and in accordance with the law, subject to this
Constitution.
(6) The office of Attorney General may either be the office of a
Minister or may be a public office.
117. (1) There shall be the office of Director of Public Prosecutions
which shall have powers in respect to any criminal case and
which shall include the power to:
(a) instigate and undertake criminal proceedings against any
person before any court (other than a court martial) in
respect to any offence alleged to have been committed by
that person;
(b) take over and continue any criminal proceedings that
have been instituted or undertaken by any other person or
authority; and
(c) discontinue at any stage before judgment is delivered any
such criminal proceedings instituted or undertaken by the
office of the Director of Public Prosecutions or any other
person or authority.
Provided that:
(i) nothing in this section shall prejudice the right of a
person with sufficient interest to petition the High
Court for a judicial review of the exercise of powers
under this section; and
(ii) in respect of a decision which is the subject of such
a petition, or in any case where the power to
discontinue a case under subsection 1(c) has been
exercised, the Director of Public Prosecutions shall
be required to publish reasons for the decision,
subject to any order that the High Court may make
with respect to the safeguard of the rights of persons
under this Constitution.
(2) The powers of the office of the Director of Public
Prosecutions or exercised on its behalf under section 118,
shall be vested in that office to the exclusion of any other
person or authority.
Delegation of powers to prosecute
118. (1) Such powers as are vested in the office of the Director of
Public Prosecutions may be exercised by the person appointed
to that office or such other persons in the public service,
acting as his subordinates in accordance with his general and
specific instructions in accordance with an Act of Parliament.
(2) Notwithstanding subsection (1):
(a) the person appointed to the office of Director of Public
Prosecutions shall be accountable for the exercise of such
powers in his own behalf and those powers exercised on
his or her behalf by subordinates in accordance with
subsection (1); and
(b) an Act of Parliament shall prescribe restrictions relating
to the exercise of powers under this section by any
member of the Malawi Police.
Appointment of the Director of Public Prosecution
119. (1) Appointment to the office of Director of Public Prosecutions
shall be made by the Judicial Service Commission, subject to
satisfying the Public Appointments Committee as to the
competence of the person so appointed to perform the duties
of that office and as to capacity of a person so appointed to
pursue prosecutions independently.
(2) Any person appointed to the office of Director of Public
Prosecutions or exercising powers on behalf of that office
shall exercise such powers conferred on them by this section
or any other law independent of the direction and control of
any authority or person and in strict accordance with the law.
Removal of the Director of Public Prosecutions
120. (1) The office of the Director of Public Prosecutions shall
become vacant after the person holding that office has served
for five years.
Provided that the person holding that office may be
nominated for such further terms, not exceeding five years,
as the Judicial Service Commission deems appropriate,
subject to confirmation by the Public Appointments
Committee.
(2) A person holding the office of the Director of Public
Prosecutions may be subject to removal before the expiration
of his term of office, if the Judicial Service Commission is
satisfied that the person holding that office is:
(a) incompetent in the exercise of his or her duties;
(b) compromised in the exercise of his or her duties to the
extent that his or her ability to exercise his functions
impartially is in serious question;
(c) otherwise incapacitated; or
(d) over the age of seventy five.
Provided that the removal of a person holding the office of
Director of Public Prosecutions shall not be effected by the
Judicial Service Commission, unless at least three of its
members are of the opinion that one of the criteria in this
section has been satisfied and the exercise of the powers
under this section shall be without prejudice to the person
being removed from the office from having the right to
appeal to the High Court.
CHAPTER 9
THE OMBUDSMAN
Establishment
121. There shall be a public office known as the Ombudsman which
shall have such powers, functions and responsibilities as are
conferred upon that office by this Constitution and any other law.
Independence of the Ombudsman
122. In the exercise its powers, functions and duties, the office of the
Ombudsman shall be completely independent of the interference or
direction of any other person or authority
Appointment of the Ombudsman
123. (1) Nominations for appointment to the office of Ombudsman
shall be received from the public by way of a public
advertisement placed by the Clerk to the National Assembly
and the successful candidate shall be appointed by the Public
Appointments Committee in accordance with the requirements
of this section.
(2) The person appointed to the office of Ombudsman shall:
(a) have sufficient knowledge of the law
(b) be publicly regarded as a person who can make impartial
judgements;
(c) have sufficient knowledge of the workings of
government;
(d) not have had any criminal convictions and not have been
a bankrupt;
(e) be otherwise competent and capable of performing the
duties of his office; and
(f) not be the President, Vice President, a Minister or
Deputy Minister or a serving Civil Servant.
Functions and Powers
124. (1) The office of the Ombudsman may investigate any and all
cases where it is alleged that a person has suffered injustice
and it does not appear that there is any remedy reasonably
available by way of proceedings in a court or by way of
appeal from a court or where there is no other practicable
remedy.
(2) Notwithstanding subsection (1) the powers of the office of the
Ombudsman under this section shall not oust the jurisdiction
of the courts and the decisions and exercise of powers by the
Ombudsman shall be reviewable by the High Court on the
application of any person with sufficient interest in a case he
has determined.
Powers of investigations
125. The Ombudsman shall have full powers to:
(1) subpoena the attendance of any person who the Ombudsman
reasonably believes to be connected with any investigation
being undertaken by that office;
(2) require the immediate disclosure of information and
documents of any kind, from any public body;
(3) question any person who the Ombudsman reasonably believes
to be connected with an investigation that is being undertaken
by that office; and
(4) initiate contempt proceedings against any person or authority
in connection with noncompliance with the powers in this
section.
Privileges and immunities of the Ombudsman
126. A person holding the office of Ombudsman shall:
(1) be provided with the necessary resources to discharge the
functions of that office;
(2) be entitled to the fullest co-operation of any person or
authority of whom he requests assistance in connection with
his duties; and
(3) enjoy with respect to his official functions the same protection
and privileges as are enjoyed by members of Parliament.
(4) be paid a salary to be charged to the Consolidated Fund and
which shall not be reduced without the consent of the office
holder.
Remedies
127. Where the investigations of the Ombudsman reveal sufficient
evidence to satisfy him that an injustice has been done, the
Ombudsman shall;
(1) direct that appropriate administrative action be taken to
redress the grievance;
(2) cause the appropriate authority to ensure that there are, in
future, reasonably practicable remedies to redress a
grievance;
(3) direct a court to adjudicate on an issue or on the quantum of
compensation; or
(4) refer a case to the Director of Public Prosecutions with a
recommendation for prosecution, and in the event of a refusal
by the Director of Public Prosecutions to proceed with the
case, the Ombudsman shall have the power to require
reasons.
Reports of the Ombudsman
128. The Ombudsman shall lay, each year, before the National
Assembly a report which shall include a record of all complaints
and applications to the office of Ombudsman, a record of the
exercise of powers with relation to applications, of the remedies
afforded to applicants in respect of grievances and shall also
include a record of the general recommendations of the
Ombudsman in respect of grievances.
Removal from office
129. (1) A person appointed to the office of Ombudsman shall serve a
term of not more than five years, provided that the Public
Appointments Committee may appoint that person for such
further terms of five years as it deems fit of unless they
sooner terminate that appointment in accordance with this
section.
(2) A person appointed to the office of Ombudsman shall not be
removed by the Public Appointments Committee, save:
(a) in such circumstances where the person where had that
person not been Ombudsman, that person would have
been disqualified from being appointed;
(b) for gross misconduct; or
(c) on reaching the age of sixty five years.
CHAPTER 10
HUMAN RIGHTS COMMISSION
Establishment
130. Parliament may provide for a Human Rights Commission for the
protection and investigation of violations of the rights accorded by
this Constitution or any other law.
Powers
131. The Human Rights Commission shall, with respect to the
applications of an individual or class of persons, or on its own
motion, have such powers of investigation and recommendation as
are reasonably necessary for the effective promotion of the rights
conferred by or under this Constitution, but shall not exercise a
judicial or legislative function and shall not be given powers so to
do.
Composition
132. The Human Rights Commission shall consist of:
(1) any person, at that time holding the office of Law
Commissioner and any person, at that time holding the
position of Ombudsman and such other persons as they may
from time to time appoint in that behalf in accordance with
this section.
Provided that, save as prescribed by this section, no other
member of the Human Rights Commission shall be a person
in any public office or the President or Vice President, a
Minister or Deputy Minister.
(2) such persons, nominated from time to time in that behalf
from by those organisations that are considered in the
absolute discretion of both the Law Commissioner and the
Ombudsman to be reputable organisations, and that are
largely or wholly concerned with the promotion of the rights
and freedoms guaranteed by this Constitution.
Provided that all members of the Human Rights Commission
shall continue to be members of the Commission until such
time as they are dismissed on the grounds of incompetence,
incapacity, or in such circumstances where the member is
compromised to the extent that his or her ability to
impartially exercise the duties of his or her office is seriously
in question.
CHAPTER 11
LAW COMMISSION
133. There shall be a Law Commission which shall have the power to
review and make recommendations relating to the repeal and
amendment of laws and that shall have such powers and functions
as shall be conferred on it by this Constitution and any other Act
of Parliament.
134. The Law Commission shall consist of:
(1) a permanent, salaried Law Commissioner who shall be
appointed by the President on the recommendation of the
Judicial Service Commission and who shall be a judicial
officer or legal practitioner; and
(2) Such number of persons as the Law Commissioner in
consultation with the Judicial Service Commission may
appoint from time to time and for such time as they are
required on account of their expert knowledge of a matter of
law being then under review by the Law Commissioner, or
on account of their expert knowledge of other matters relating
to a legal issue being then under review.
Removal of Law Commission
135. The President may remove the Law Commissioner or a person
who is otherwise appointed to the Law Commission on the
recommendation of the Public Appointments Committee of the
National Assembly if the Public Service Committee is satisfied that
the Law Commissioner or such other person appointed to the Law
Commission, as the case may be, is not competent or otherwise
incapacitated so as to be unable to perform the functions of his
office.
Powers and functions of the Law Commission
136. The Law Commission have the power:
(1) to review and make recommendations regarding any matter
pertaining to the laws of Malawi and their conformity with
the Constitution and applicable International Law;
(2) to review and make recommendations regarding any matter
pertaining to the Constitution of the Republic of Malawi;
(3) receive any submissions from any person or body regarding
the laws of Malawi or the Constitution; and
(4) to report its findings and recommendations to the Minister of
Justice who shall publish any such report before Parliament.
137. The Law Commission shall exercise its functions and powers
independent of the direction or interference of any other person or
authority.
CHAPTER 12
NATIONAL COMPENSATION TRIBUNAL
The National Compensation Tribunal
138. There shall be a National Compensation Tribunal which shall
entertain claims with respect to alleged criminal and civil liability
of the Government of Malawi which was in power before the
commencement of this Constitution and which shall have such
powers and functions as are conferred on it by this Constitution
and an Act of Parliament.
Exclusive original jurisdiction
139. (1) No person shall institute proceedings against any Government
in power after the commencement of this Constitution in
respect of any alleged criminal or civil liability of the
Government of Malawi in power before the commencement
of this Constitution, save by application first to the National
Compensation Tribunal, which shall hear cases initiated by
persons with sufficient interest.
(2) Notwithstanding subsection (1), the National Compensation
Tribunal shall have the power to remit a case for
determination by the normal courts of the land where the
Chairman of the National Compensation Tribunal is satisfied
that the Tribunal does not have jurisdiction, or where the
Chairman feels it is in the interest of justice so to do.
Composition
140. (1) There shall be a Chairman of the National Compensation
Tribunal shall be a judge who shall:
(a) be nominated and appointed in that behalf by the Judicial
Service Commission; and
(b) hold the office of Chairman of the National
Compensation Tribunal for no more than three months or
until such time as that person ceases to be a judge
whichever is sooner:
(2) The Chairman of the National Compensation Tribunal shall
be assisted by two Assessors, who shall be:
(a) a certified public accountant who shall be nominated and
appointed by the Public Appointments Committee to
supervise the accounts of the National Compensation
Fund and to shall advise the Tribunal as to the quantum
of compensation payable with respect to any claim taking
into account the to overall number of claims being put
before the Tribunal in that financial year.
(b) a legal practitioner who shall be nominated from time to
time in that behalf by the Law Society of Malawi and
appointed by the Public Appointments Committee to act
as legal representative for any party claiming
compensation from the Tribunal and who is
unrepresented by legal counsel.
Provided that both Assessors may be removed by the Public
Appointments Committee on the grounds of incapacity or
incompetence in the exercise of their duties.
Procedure
141. (1) The National Assembly shall prescribe such rules of
procedure of the National Compensation Tribunal as shall
ensure the expeditious disposal of cases, which may include
an informal preliminary arbitration procedure.
(2) Notwithstanding subsection (1), the procedures of the
National Compensation Tribunal shall:
(a) conform to the standards of evidence required for a
normal civil court;
(b) conform with the standards of justice set out in this
Constitution and the general principles of Natural Justice;
Protection of third party rights
142. Where any third party disputes a claim or has an interest in
moneys or property that is the subject of a claim before the
National Compensation Tribunal:
(1) that party shall be given adequate notification;
(2) that party shall be entitled to legal representation; and
(3) if the Chairman of the National Compensation Tribunal is
satisfied that the person is of insufficient means to retain legal
counsel it may order that the Ministry of Justice shall retain
a legal practitioner on that persons behalf.
Jurisdiction of the ordinary courts
143. (1) The High Court shall not be excluded from hearing
applications for judicial review of the decisions of the
Tribunal nor shall a determination by the Tribunal be a bar to
further criminal or civil proceedings in an appropriate court
against a private person for the duration of the existence of
the fund.
(2) A "private person" for the purposes of this section means a
person who was before the commencement of this
Constitution a member of the Government or one of its
agents, who would, under the laws then in force, have been
personally liable for an act that is the subject of the criminal
or civil proceedings.
Power to waive statutory limitations
144. For the purposes of pursuing claims before the National
Compensation Tribunal and criminal and civil proceedings against
a private person within the meaning of subsection 143(2), any
statutory time limitation may be waived by the Tribunal or by a
court if it seems equitable to do so.
National Compensation Fund
145. (1) There shall be a National Compensation Fund which shall be
a trust vested in the Republic.
(2) The National Compensation Fund shall be used exclusively
for the purposes assigned to it by this Constitution and shall:
(a) be a trust whose purpose shall be for the exclusive
benefit of those applicants to the National Compensation
Tribunal who have been granted and award, gratuity,
pension or other allowance according to the principles,
procedures and rules of the National Compensation
Tribunal;
(b) be held in a separate account within the Reserve Bank of
Malawi; and
(c) have all of its reports, financial statements and
information relating to its operation published and
maintained for public scrutiny.
(3) The National Compensation Tribunal shall be the only body
responsible for disbursements from and charges to the
National Compensation Fund, provided that the trustees of
the Fund shall make such other disbursements from and
charges on the Fund as are necessary and prudent for the
efficient operation of the Fund.
(4) There shall be no fewer than four Trustees of the National
Compensation Fund who shall be appointed from time to time
by the National Compensation Tribunal on the
recommendation of the Ombudsman.
(5) A Trustee shall hold office for the duration of the Fund
unless and only in such circumstances as that trustee is
removed by the National Compensation Tribunal on the
grounds of:
(a) incompetence;
(b) incapacity; or
(c) being compromised in the exercise of his or her functions
to the extent that his or her financial probity is in serious
question.
(6) Trustees of the National Compensation Fund shall exercise
their functions independent of direction or interference by any
body or authority, save as is provided by this section.
(7) The Auditor General shall make an annual report to be laid
before the National Assembly, on the conduct and status of
the Fund which shall provide guidance to the National
Assembly for voting an Appropriation for the purposes of the
National Compensation Fund, which shall be called the
National Compensation Fund Appropriation.
(8) The National Compensation Fund Appropriation shall be laid
before the National Assembly by the Minister responsible for
Finance before the beginning, and with respect to, every
financial year during the life of the Fund.
(9) With respect of any financial year, the Tribunal shall
prescribe a time not being more than six months after the
commencement of that financial year, after which the
Tribunal shall not receive applications for the redress within
that financial year from the National Compensation Fund.
Winding up of the National Compensation Tribunal
146. The National Compensation Fund shall expire not later than
ten years after the commencement of this Constitution at
which time the National Compensation Tribunal shall also
dissolve.
(2) If, in respect to any year within the period prescribed in
subsection (1), and after the second year of it coming into
existence, less than ten applications are made to the National
Compensation Tribunal, then the Chairman of the Tribunal
may direct the Minister responsible for Finance to lay before
the National Assembly a Bill:
(a) to dissolve the National Compensation Tribunal and the
National Compensation Fund;
(b) to confer on the High Court jurisdiction equivalent to that
of the National Compensation Tribunal to determine
claims against the Government within the meaning of this
section.
Provided that for the remaining duration of the period prescribed
in subsection (1) the residue of the Fund will remain a separate
Fund within the accounts of the State Revenue Fund which shall be
drawn upon by the Ministry of Justice in respect of awards made
by the High Court with relation to claims that would otherwise
have been determined by the National Compensation Tribunal.
CHAPTER 13
LOCAL GOVERNMENT
Functions of Local Government Authorities
147. (1) There shall be Local Government Authorities which shall
have such powers as are vested in them by this Constitution
and any Act of Parliament.
(2) Local Government Authorities shall be responsible for the
representation and welfare of the people over whom they
have jurisdiction to the extent that it is prescribed by any Act
of Parliament.
(3) Parliament shall, where possible, provide that issues of local
policy and administration be decided on at local levels under
the supervision of Local Government Authorities.
(4) Parliament shall ensure that the composition of Local
Government Authorities affords equal representation in
respect of each ward within its territorial jurisdiction and that
the boundaries of each ward shall be designated by the
Electoral Commission in accordance with section 149(2).
Composition of Local Government Authorities
148. (1) Local Government Authorities shall be constituted of Local
Government officers who shall be elected by free, secret and
equal suffrage under the supervision of the Electoral
Commission by the registered voters in the area over which
that Local Government Authority is to have jurisdiction.
(2) The offices of local government shall include mayors in
municipalities and local councillors in all areas and Local
Government Officers shall have such functions, powers and
responsibilities as shall be laid down by an Act of Parliament.
(3) There shall be in respect of each Local Government Authority
such administrative personnel, subordinate to Local
Government Officers, as shall be required to execute and
administer the lawful resolutions and policies of those
officers.
Jurisdiction of Local Government Authorities
149. (1) Subject to the recommendations of the Electoral Commission,
and in accordance with the principles laid down in this
Constitution and any other law relating to National Elections,
there shall be drawn boundaries for city councils, municipal
councils or municipalities, town councils and district councils.
(2) Any boundaries determining the territorial jurisdiction of any
Local Government Authority shall be geographical only,
without reference to race, colour, or ethnic origin of the
inhabitants of the area.
Powers and Functions of the National Local Government Finance
Committee
150. (1) There shall be a National Local Government Finance
Committee that shall hear submissions from each and every
Local Government Authority in respect of estimates of
expenditure and requests for special disbursements and shall
have such other powers and functions as may be conferred on
it by this Constitution or an Act of Parliament.
(2) The National Local Government Finance Committee shall
have the power to:
(a) receive all Local Government Authority estimates of
revenue and all projected budgets;
(b) supervise and audit accounts of Local Government
Authorities, in accordance with any Act of the National
Assembly, subject to the recommendations of the Auditor
General;
(c) make recommendations relating to the distribution of
funds allocated to Local Government Authorities, and
vary the amount payable from time to time and area to
area according to, and with sole consideration, of
economic, geographic and demographic variables.
(d) submit a consolidated budget for all Local Government
Authorities and estimates after consultation with the
Treasury, which shall be presented to the National
Assembly by the Minister responsible for Local
Government before the commencement of each financial
year, and make application to the Minister for
supplementary funds where necessary.
151. The Government shall be under a duty to ensure that there is
adequate provision of resources necessary for the proper exercise
of Local Government functions and to this effect shall allow a
Local Government Authority to keep such proportion of the
revenue collected by that Authority as shall be prescribed by the
National Local Government Finance Committee.
Composition of the National Local Government Finance Committee
152. (1) The members of the National Local Government Finance
Committee shall be:
(a) one person who shall be nominated from time to time in
that behalf by the Local Government Association;
(b) the Minister or Deputy Minister responsible for Local
Government Authorities or such person as shall be
nominated by the Minister from time to time in that
behalf;
(c) one person who shall be nominated from time to time in
that behalf by the Public Accountants Board;
(d) the Chairman of the Civil Service Commission or such
person as shall be nominated by the Chairman from time
to time in that behalf;
(e) one person who shall be nominated from time to time in
that behalf by the Electoral Commission.
(2) Excepting persons who are or become members of the
Committee by virtue of holding office as Minister or Deputy
Minister responsible for Local Government Authorities or by
virtue of holding office as Chairman of the Civil Service
Commission, the term of office of a member of the National
Local Government Finance Committee shall expire:
(a) three years after the date that member was first
appointed; or
(b) on removal by the President on the recommendation of
the Public Appointments Committee.
Providing no member shall be removed save that the Public
Appointments Committee is satisfied that he is:
(i) not competent to exercise the duties of that office;
(ii) compromised to the extent that his or her financial
probity is in serious question; or
(iii)otherwise incapacitated.
CHAPTER 14
THE POLICE
The Malawi Police Force
153. There shall be a Malawi Police Force which shall be constituted by
an Act of Parliament that shall specify the various divisions and
functions of the Malawi Police Force.
Powers and Functions of the Police
154. (1) The Malawi Police Force shall be an independent organ of
the executive which shall be there to provide for the
protection of public safety and the rights of persons in
Malawi according to the prescriptions of this Constitution and
any other law.
(2) The Police Force of Malawi shall enjoy only such powers as
are necessary for the protection of rights under this
Constitution and the maintenance of public safety and public
order in accordance with the prescriptions of this Constitution
and the law.
(3) In the exercise of their functions, members of the Malawi
Police Force shall be subject to the direction of the courts and
shall be bound by the orders of such courts.
(4) Political responsibility for the Malawi Police Force shall vest
in a Minister of the Government who shall ensure that the
discipline and conduct of the Malawi Police Force accords
with the prescriptions of this Constitution and any other law.
The Inspector General of Police
155. (1) There shall be the office of Inspector General of Police who
shall be the Head of the Malawi Police Force.
(2) The President shall appoint the Inspector General of Police
subject to approval by the Public Appointments Committee
who may enquire into to the competence of the person so
appointed to carry out the duties of that office and such other
questions as may have direct bearing on the performance of
the duties of that office.
(3) The office of the Inspector General of Police shall become
vacant after the person holding that office has served for five
years, provided that the person holding that office may be
nominated for such further terms, not exceeding five years,
as the President may deem appropriate, subject to
confirmation by the Public Appointments Committee.
(4) A person holding the office of Inspector General of Police
shall be subject to removal by the President only by reason of
that person being:
(a) incompetent in the exercise of his or her duties;
(b) compromised in the exercise of his or her duties to the
extent that his capacity to exercise his powers impartially
is in serious question;
(c) otherwise incapacitated; and
(d) over the age of sixty five;
Providing that the power conferred on the President under
this section shall be exercised without prejudice to the person
being removed from the office from having the right to
appeal to the High Court.
(5) Subject to subsection (4) above, in the exercise of the duties
and powers vested in the office of the Inspector General of
Police by the Constitution or any other law, the person
holding that office shall not be subject to the direction or
control of any other person or authority, other than as
prescribed in this Constitution or an Act of Parliament.
(6) The Inspector General of Police may delegate such powers as
are conferred on him or her by the National Assembly to
such persons or authorities being a part of the Malawi Police
Force, in accordance with an Act of Parliament.
Provided that with respect to the powers in this subsection,
the Inspector General of Police shall notify the Police Service
Commission of any delegation and the Police Service
Commission may prescribe any regulations it deems
appropriate in relation to the manner and form of reports that
the person exercising that power shall make and shall specify
such restrictions as may be required to ensure the proper
exercise of powers delegated under this section in accordance
with the law.
The Police Service Commission
156. (1) There shall be a Police Service Commission with such powers
and functions as are conferred upon it by this Constitution
and an Act of Parliament.
(2) Subject to this Constitution, power to appoint persons to hold
or act in offices in the Police Force of Malawi, other than
that of Inspector General of Police, including the power to
confirm appointments, and to remove such persons from duty
shall vest in the Police Service Commission.
(3) The Police Service Commission shall, subject to this
Constitution and any general directions of an Act of
Parliament, exercise disciplinary control over persons holding
or acting in any office to which this section applies.
Power to delegate
157. (1) The Police Service Commission, may, subject to such
conditions as may be laid down by an Act of Parliament,
delegate powers conferred by this Constitution or an Act of
Parliament by directions in writing to any member of the
Commission or to any civil servant or public body.
(2) Where any person or body may from time to time exercise
powers under this section on behalf of the Police Service
Commission, in accordance with subsection (1), the Police
Service Commission shall:
(a) require that person or body to furnish reports in such
manner or form as they may have specified in the
directions which delegated those powers.
(b) hear such complaints or appeals from persons with
sufficient interest relating to the exercise of powers
delegated under this section and shall have the authority
to:
(i) quash the decision of a body or person exercising
such powers;
(ii) exercise such disciplinary powers with relation to
such body or person, subject to the conditions laid
down by an Act of Parliament; and
(iii)revoke directions delegating powers to any person
or body.
Provided that nothing in this section shall prejudice the right
of any person who is the subject of a decision made by or on
behalf of the Police Service Commission to appeal to the
High Court or the right of any person with sufficient interest
in such a decision to petition the High Court for judicial
review of that decision.
Composition of the Police Service Commission
158. (1) The Police Service Commission shall consist of the following
members:
(a) such Justice of Appeal or judge as may for the time being
be nominated in that behalf by the Judicial Service
Commission;
(b) such member of the Civil Service Commission as may
for the time being be nominated in that behalf by the
Civil Service Commission;
(c) such legal practitioner as may for the time being be
nominated in that behalf by the Law Society of Malawi;
(d) the Inspector-General of Police or such senior officer as
he or she may for the time being nominate in that behalf;
and
(e) the Ombudsman.
(2) The members of the Police Service Commission shall elect a
Chairman from among their number and three members of
the Police Service Commission shall form a quorum.
(3) A person shall not be qualified for appointment as a member
of the Police Service Commission if he is President, Vice-
President, a Minister or Deputy-Minister, or a Member of
Parliament or a serving police officer.
(4) Subject to this section, the office of a member of the Police
Service Commission shall become vacant:
(a) at the expiration of three years from the date of that
person's appointment, unless reappointed to a new three
year term; or
(b) if any circumstances arise that, if that person were not a
member of the Police Service Commission, would cause
that person to be disqualified from appointment as such.
Provided that subsection (4)(a) shall not apply where the
member in question still holds the office the Inspector
General of Police or the Ombudsman, in which behalf that
person was appointed to the Police Service Commission.
Political independence of the Malawi Police Force
159. (1) Members of the Police Force of Malawi shall ensure that they
exercise their functions, powers and duties as impartial
servants of the general public and the Government of the day.
(2) No member of the Police Force of Malawi shall be able to
directly participate in political activities.
Provided that:
(a) any member of the Police Force of Malawi shall have the
right to resign in order to participate directly in political
activities;
(b) nothing in this section shall be deemed to prejudice any
member of the Police Force of Malawi having the
absolute right to vote in accordance with this
Constitution;
(c) nothing in this subsection shall prejudice the right of any
member of the Police Force of Malawi to hold office in
or be a member of any association, group or professional
body, the purposes of which are principally to represent
their members interests with relation to the terms and
conditions of employment or the general carrying on of
any profession or trade or the promotion of any interest,
not pertaining directly to the promotion of a political
party, campaign or philosophy or otherwise inconsistent
with the functions of the Police Force of Malawi.
(3) No government or party shall cause any member of the Police
Force of Malawi acting in that behalf to exercise functions,
powers or duties for the purposes of promoting or
undermining of any political party or individual member of
that party, nor shall any member of the Police Force of
Malawi acting in that behalf promote or undermine any party
or member of a party.
(4) No government or party shall cause any member of the Police
Force of Malawi, acting in that behalf to deploy resources,
whether they be financial, material or human resources, for
the purposes of promoting or undermining any political party
or member of a political party or interest group, nor shall any
member of the Police Force of Malawi, acting in that behalf
cause such deployment.
Provided that nothing in this section shall be construed as
derogating from the duty of the Police to uphold the rights
and afford protection to all political parties, persons and
organisations equally without fear or favour in accordance
with this Constitution and subject to any law.
(5) Any member of the Police Force of Malawi who contravenes
this section shall be subject to such disciplinary measures as
the Police Service Commission considers appropriate, taking
into account the gravity and circumstances of the
contravention, subject to such regulations as may be
prescribed by an Act of Parliament.
(6) Where the Police Service Commission is satisfied that a
government or political party or member of a political party
has acted in contravention of subsection (4) or subsection (5),
the Police Service Commission may initiate proceedings
before the High Court for punitive damages and, in the case
of a contravention of subsection (5) for the recovery of such
resources or sums equivalent to the benefit of the enjoyment
of those resources from the party of government, or political
party or member of a political party who has so benefitted, as
the case may be.
CHAPTER 15
THE ARMED FORCES
The Armed Forces of Malawi
160. There shall be no military force constituted in Malawi other than
the Armed Forces provided for and regulated by this section.
Constitutional position of the Armed Forces
161. The Armed Forces of Malawi shall operate, at all times under the
direction of those civil authorities in whom this Constitution vests
such power, and shall:
(1) uphold the sovereignty and territorial integrity of the Republic
of Malawi and guard against threats to the safety of its
citizens by force of arms;
(2) uphold and protect the Constitutional Order in Malawi and
assist the civil authorities in the proper exercise of their
functions under this Constitution;
(3) provide technical expertise and resources to assist the civilian
authorities in the maintenance of essential services in times of
emergency; and
(4) perform such other duties outside the territory of Malawi as
may be required of them by any Treaty entered into by
Malawi in accordance with the prescriptions of International
Law.
Provided that no person or authority may direct or deploy the
army to act in contravention of this Constitution on pain of
conviction for treason against the Republic, notwithstanding
any immunity granted by this Constitution or by any other
law.
Responsibility for the Armed Forces
162. (1) The ultimate responsibility for the armed forces shall vest in
the President as Commander in Chief.
(2) Any powers conferred on the President by virtue of this
Chapter shall only be exercised on the recommendations of an
Army Council that shall include the Minister of Defence and
the Army High Command and which shall have;
(a) the power to determine the operational use of the armed
forces.
(b) the power to appoint and remove from office the Army
Commander and other members of the armed forces.
(c) such other powers and duties as may be prescribed by an
Act of Parliament.
Provided that these powers shall be exercised subject to the
scrutiny of a Defence Committee of the National Assembly,
created in this Chapter.
(3) The Army Council may, by directions in writing and subject
to such conditions as may be laid down by an Act of
Parliament or are recommended by the Defence Committee
and adopted by the National Assembly, delegate to any
member of the armed forces any of the powers conferred on
it by an Act of Parliament.
The Defence Committee of the National Assembly
163. (1) The Defence Committee of the National Assembly shall be
composed of one member of each of the political parties,
nominated from time to time in that behalf for terms of not
more than one year, and shall have such powers and
functions as may be conferred upon them by this Constitution
and an Act of Parliament.
(2) The Defence Committee may be assembled at any time,
notwithstanding that Parliament stands adjourned and, where
Parliament stands dissolved, shall continue to be constituted
until such time as a new Parliamentary session begins and a
new Defence Committee is appointed.
CHAPTER 16
PRISONS
The Malawi Prison Service
164. The Malawi Prison Service shall consist of all penal institutions,
labour camps, special and secure schools and other institutions that
are used to house, detain and rehabilitate persons sentenced to
imprisonment in whatever form it may take, but shall not include
holdings cells in police stations.
The Chief Commissioner for Prisons
165. (1) There shall be the office of Chief Commissioner for Prisons
that shall be responsible for the Prison Service of Malawi and
shall be a public office with such powers, functions and
duties as may be conferred on it by this Constitution and any
Act of Parliament.
(2) The principal responsibilities of the Chief Commissioner for
Prisons shall be to ensure the proper and efficient
administration of the penal institutions that comprise the
Prison Service of Malawi, subject to and in accordance with:
(a) the Constitutional protection of rights and other
provisions of the Constitution or any other law;
(b) the recommendations of the Prison Service Commission
and the Inspectorate of Prisons as prescribed by the
Minister responsible for Prisons in accordance with the
wishes of Parliament; and
(c) the directions of the courts with relation to persons
convicted by the courts to a sentence of incarceration or
penal servitude within a penal institution, or incarcerated
by the courts pending execution of the sentence of the
courts, or awaiting sentence by the courts or otherwise
on remand to the custody of the Prison Service or being
held on behalf of the Police Force in connection with any
law.
(3) Subject to this section, in the exercise of the duties and
powers vested in the office of the Chief Commissioner for
Prisons by the Constitution or any other law, the person
holding that office shall not be subject to the direction or
control of any other person or authority, other than as
prescribed in this Constitution and an Act of Parliament.
Power to delegate
166. (1) The Chief Commissioner for Prisons may delegate such
powers as are conferred on him by Parliament to such
persons or authorities being a part of the Malawi Prison
Service.
(2) With respect to the delegation of powers in subsection (1):
(a) the Chief Commissioner for Prisons shall notify the
Prison Service Commission and the Inspectorate of
Prisons of any such delegation; and
(b) the Prison Service Commission and the Inspectorate of
Prisons may prescribe any regulations they deem
appropriate in relation to the manner and form of reports
that the person or authority exercising that power shall
make and shall prescribe such restrictions as may be
required to ensure the proper exercise of powers
delegated under this section.
Appointment of the Chief Commissioner for Prisons
167. (1) The President shall appoint the Chief Commissioner for
Prisons subject to approval by the Public Appointments
Committee as to the competence of the person so appointed to
carry out the duties of that office and as to such other
questions as may have direct bearing on the performance of
the duties of that office.
(2) The office of the Chief Commissioner for Prisons shall
become vacant after the person holding that office has served
for five years, provided that the person holding that office
may be nominated for such further terms, not exceeding five
years, as the President deems appropriate, subject to
confirmation by the Public Appointments Committee.
(3) A person holding the office of Chief Commissioner for
Prisons shall be subject to removal by the President only by
reason of that person being:
(a) incompetent in the exercise of his or her duties;
(b) compromised in the exercise of his or her duties to the
extent that his or her capacity to impartially exercise the
duties of that office is in serious question;
(c) otherwise incapacitated;
(d) over the age of sixty five;
Providing that the removal of a person holding the office of
Chief Commissioner for Prisons by the President shall be
without prejudice to the right of that person to appeal to the
High Court.
The Prison Service Commission
168. (1) There shall be a Prison Service Commission with the powers
and functions conferred on it by this Constitution and an Act
of Parliament.
(2) The Prison Service Commission shall have the power to
appoint persons to hold or act in offices in the Prison Service
of Malawi other than the Chief Commissioner of Prisons,
including the power to confirm appointments, and to remove
such persons from duty.
(3) The Prison Service Commission shall, subject to this
Constitution and any general directions of an Act of
Parliament exercise disciplinary control over persons holding
or acting in any office to which this section applies.
(4) The Prison Service Commission, may, subject to such
conditions as may be laid down by an Act of Parliament,
delegate powers under this section by directions in writing to
any member of the Commission or to any civil servant or
public body, being part of the Prison Service of Malawi.
(5) Where any person or body may from time to time exercise
powers under this section on behalf of the Prison Service
Commission, in accordance with subsection (4), the Prison
Service Commission shall:
(a) require that person or body to furnish reports in such
manner or form as they have specified in the directions
which delegated those powers.
(b) hear such complaints or appeals from persons with
sufficient interest relating to the exercise of powers under
this section and shall have the authority to:
(i) quash the decision of a body or person exercising
such powers.
(ii) exercise such disciplinary powers with relation to
such body or person, subject to the conditions laid
down by an Act of Parliament.
(iii) revoke directions delegating powers to any person
or body.
Provided that nothing in this section shall prejudice the right of
any person who is the subject of a decision made by or on behalf
of the Prison Service Commission to appeal to the High Court or
the right of any person with sufficient interest in such a decision to
petition the High Court for judicial review of that decision.
Composition of the Prison Service Commission
169. (1) The Prison Service Commission shall consist of the following
members:
(a) such Justice of Appeal or judge as may for the time being
be nominated in that behalf by the Judicial Service
Commission.
(b) such member of the Civil Service Commission as may
for the time being be nominated in that behalf by the
Civil Service Commission.
(c) such legal practitioner as may for the time being be
nominated in that behalf by the Law Society of Malawi.
(d) such person as may be nominated from time to time in
that behalf by the Inspectorate of Prisons.
(e) the Chief Commissioner for Prisons or a person
nominated by the Chief Commissioner of Prisons from
time to time in that behalf, being a senior member of the
prison service.
(2) The members of the Prison Service Commission shall elect a
Chairman from among their number and three members of
the Prison Service Commission shall form a quorum.
(3) A person shall not be qualified for appointment as a member
of the Prison Service Commission if he is President, Vice-
President, a Minister or Deputy-Minister, or a Member of
Parliament.
(4) Subject to this section, the office of a member of the Prison
Service Commission shall become vacant:
(a) at the expiration of three years from the date of that
member's appointment, unless reappointed to a new three
year term; or
(b) if any circumstances arise that, if that member were not a
member of the Prison Service Commission, would cause
that member to be disqualified from appointment as such.
Provided that subsection (4)(a) shall not apply where the
member in question still holds the office the Chief
Commissioner for Prisons, in which behalf that person was
appointed to the Prison Service Commission.
The Inspectorate of Prisons
170. (1) There shall be an Inspectorate of Prisons which shall have
such powers, functions and duties in relating to the Prison
Service of Malawi as shall be conferred on it by the
Constitution or any other law.
(2) The Inspectorate of Prisons shall exercise its powers functions
and duties independent of any direction or interference by any
other person or authority.
(3) The Inspectorate of Prisons shall:
(a) be charged with monitoring the conditions, administration
and general functioning of prisons taking due account of
applicable international standards;
(b) have such powers as shall be required to make
investigations;
(c) require any person to answer questions relating to such
subjects as are relevant to those investigations;
(d) have the power to visit any and all institutions within the
Malawi Prison Service without notice and without let or
hindrance; and
(e) exercise such other powers as may be prescribed by an
Act of Parliament.
(4) The Inspectorate of Prisons shall cause to be laid before the
National Assembly such reports as the Inspectorate of Prisons
may make at such times that they report and such reports
shall be laid through the Minister responsible for prisons in
the form of a motion for acceptance of the recommendations
of the Inspectorate of Prisons.
Provided that where the recommendations of the Inspectorate
of Prisons require amendment to the law, the Minister shall
lay before Parliament those recommendations in the form of a
Bill.
(5) The powers conferred on the Inspectorate for Prisons by this
section shall also be exercisable with respect to holding cells
in police stations.
Composition of the Inspectorate of Prisons
171. The Inspectorate of Prisons shall be comprised of seven members
who shall be:
(1) such legal practitioner as shall from time to time be
nominated in that behalf by the Law Society of Malawi;
(2) such Justice of Appeal or Judge as shall from time to time be
nominated in that behalf by the Judicial Service Commission;
(3) the Chief Commissioner for Prisons or such person as he may
nominate in that behalf being a senior member of the prison
service;
(4) such member of the Prison Service Commission as shall from
time to time be nominated in that behalf by that Commission;
(5) such Resident Magistrate or Magistrate as shall be from time
to time nominated in that behalf by the Malawi Magistrates'
Association;
(6) such nominee of the Joint International Committee of the Red
Cross and the Red Crescent as shall from time to time be
nominated in that behalf by the representatives of that
Committee in Malawi; and
(7) such other representative of an organisation involved in the
monitoring of human rights or more generally concerned with
the welfare of offenders as may be approved by the rest of
the membership of the Inspectorate of Prisons.
CHAPTER 17
THE STATE REVENUE
Revenue
172. No tax, rate, duty, levy or imposition shall be raised, levied or
imposed by or for the purposes of the Government or any local
authority otherwise than by or under the authority of the law.
The State Revenue Fund
173. All revenues or other moneys raised or received for the purposes
of the Government shall, subject to this Constitution and any Act
of Parliament, be paid into and form one fund, to be knows as the
State Revenue Fund.
174. (1) No money shall be withdrawn from the State Revenue Fund
except:
(a) to meet expenditure that is charged upon the fund by this
Constitution or by any Act of the National Assembly or
consistent with this Constitution;
(b) where the issue of those moneys has been authorized by
an Appropriation Act, a supplementary Appropriation
Act or by an Act made in pursuance of subsection (5) or
of sections 178, 179, 180, 181 or 182 or by a resolution
of the National Assembly made in accordance with
section 177.
Provided that this subsection shall not apply to any sums
mentioned in subsection 176(3).
(2) Where any moneys are charged by this Constitution or by any
Act of the National Assembly upon the State Revenue Fund,
they shall be paid out of that Fund by the Minister
responsible for Finance to the person or authority to whom
the payment is due.
(3) No moneys shall be withdrawn from the State Revenue Fund
except in the manner prescribed by the National Assembly.
(4) The investment of moneys forming part of the State Revenue
Fund by way of deposit with the National Reserve Bank or
such other secure invest as may be approved by the National
Assembly shall not be regarded as a withdrawal of those
moneys from the State Revenue Fund for the purposes of this
Constitution.
(5) Notwithstanding subsection (1) provisions may be made by or
under an Act of the National Assembly authorizing
withdrawals to be made from the State Revenue Fund, in
such circumstances and to such extent as may be prescribed
by or under an act of the National Assembly, for the purpose
of making allowances to persons or authorities other than the
Government.
Provided that:
(a) no moneys shall be advanced from the State Revenue
Fund under this subsection save on condition that they
are repayable by the person or authority to whom or on
behalf of whom they are advanced.
(b) this section shall not apply with respect to;
(i) the proceeds of Government loans raised for a
specific purpose under an Act of the National
Assembly;
(ii) money or interest received by the Government
subject to a trust;
(iii) advance drawings and repayments of those
drawings, authorised by the National Assembly;
(iv) such special funds under this Constitution where it is
specified that this section should not apply.
175. (1) There shall be charged on the State Revenue Fund in addition
to any grant, remuneration or other moneys so charged by
this Constitution or any Act consistent with this Constitution:
(a) all debt charges for which the Government is liable;
(b) all pensions, compensations for loss of office and
gratuities for which the Government is liable;
(c) any moneys required to satisfy any judgement, decision
or award made or given against the Government by any
court or tribunal; and
(d) all moneys or debt charges charged before the
appointment day upon the revenues or public funds of
Malawi.
(2) For the purposes of this section, "debt charges" include
interest, sinking fund charges, the repayment or amortization
of debt, and all expenditure in connection with the raising of
loans on the security of the State Revenue Fund and the
service and redemption of debt thereby created.
Annual Estimates
176. (1) (a) The Minister responsible for Finance shall lay before the
National Assembly a statement of the estimated receipts
and the expenditure of the Government in respect of that
financial year, other than the sums specified in subsection
(3).
(b) The statement of estimates shall be laid before the
National Assembly in respect of every financial year and
shall be so laid before the commencement of that
financial year.
(c) Where the National Assembly does not propose to debate
the estimates until after the commencement of the
financial year to which they relate, the estimates of the
revenue may be laid before the National Assembly at any
time before the commencement of such debate.
(2) The estimates of expenditure shall show separately the total
sums respectively required to meet the heads of other
expenditure proposed to be met from the State Revenue fund.
(3) The sums to be shown in the estimates of receipts and
expenditure shall not include:
(a) sums representing the proceeds of any loan raised by the
Government for specific purposes and appropriated for
those purposes by the Act authorizing the raising of the
loan;
(b) sums representing any money or interest on money
received by the Government subject to a trust and to be
held or applied in accordance with the terms of that trust;
(c) sums representing moneys authorized to be advanced
from the State Revenue Fund under an Act of Parliament
and repayments thereof;
(d) sums representing moneys received for or to be applied
from any special fund established and regulated by this
Constitution or by an Act of Parliament which provides
that subsections (1) and (2) shall not apply to that fund.
Appropriation Bills
177. When the estimates of expenditure to be met from the State
Revenue fund but not charged thereon have been approved by the
National Assembly a Bill, to be known as an Appropriation Bill,
shall be introduced in the Assembly providing for the issue from
the State Revenue Fund of the sums necessary to meet that
expenditure and the appropriation of those sums, under separate
votes for the several heads of expenditure approved, to the
purposes specified in the Bill.
Supplementary Appropriations
178. (1) If in respect of any financial year it is found:
(a) that the amount appropriated by the Appropriation Act
for any purpose is insufficient, or that a need has arisen
for expenditure for a purpose for which no amount has
been appropriated by the Appropriation Act; or
(b) that any moneys have been expended for any purpose in
excess of the amount (if any) appropriated for that
purpose by the Appropriation Act,
a supplementary estimate showing the sums required or
spent shall be laid before the National Assembly and
the heads of any such expenditure shall be included in a
supplementary Appropriation Bill or in a motion or
motions approving such expenditure.
(2) Where any supplementary expenditure has been approved in a
financial year by a resolution of the National Assembly under
subsection (1), a supplementary Appropriation Bill shall be
introduced in the National Assembly as soon as practicable
after the commencement of the financial year next following,
providing for the appropriation of the sums so approved.
Advance Drawing Rights
179. The National Assembly may make provision under which, if it
appears to the Minister responsible for Finance that the
Appropriation Act in respect of any financial year will not come
into operation by the beginning of that financial year, he or she
may authorize the withdrawal from the State Revenue Fund of
moneys for the purpose of meeting expenditure necessary to carry
on the services of the Government until the expiration of four
months from the beginning of that financial year or the coming
into operation of the Appropriation Act, whichever is earlier.
Provided that provision for any moneys so withdrawn shall be
included, under the appropriate heads, in the Appropriation Bill.
Contingency Fund
180. (1) The National Assembly may make provision for the
establishment of a Contingencies Fund and for authorizing the
Minister responsible for Finance, if he is satisfied that there
has arisen an urgent and unforeseen need for expenditure for
which no other provision exists, to make advances from that
Fund to meet that need.
(2) Where any advance is made from the Contingencies Fund, a
supplementary estimate shall, as soon as practicable, be
presented to and voted on the National Assembly and a
supplementary Appropriation Bill or motion approving such
expenditure in accordance with section 177 shall be
introduced for the purpose of replacing the amount so
advanced.
Government Loans
181. (1) A loan may be raised by the Government under the authority
of an Act of the National Assembly and not otherwise.
(2) The National Assembly may, in the Act authorizing the
raising of a loan or by any other Act, appropriate the
proceeds of the loan for specific purposes and authorize the
payment of such proceeds out of the State Revenue Fund for
such purposes.
Special Funds
182. (1) An Act of the National Assembly may, subject to section
183, make provision for the creation of special funds which
shall be accounted within the accounts of the State Revenue
Fund and for the regulation or management of the moneys
accounted in such special funds.
(2) An Act in accordance with subsection (1) may provide that
section 176(1) and 176(2) shall not apply to any particular
fund.
(3) The National Assembly may make provisions regulating the
manner in which moneys or investments held by the
Government subject to a trust are to be accounted for.
The Development Fund
183. (1) There shall be a special fund within the State Revenue Fund
to be known as the Development Fund. Receipts and
expenditure of the Government relating to he development of
the Republic, which have not been included in the annual
statement provided for in section 176, shall be accounted in
the accounts of the Development Fund. Estimates of such
receipts and expenditure shall be submitted by the Minister
responsible for Finance to the National Assembly not less
than once yearly.
(2) When the estimates of expenditure to be met from the
Development Fund have been approved by the National
Assembly, a Bill to be known as Appropriate (Development
Fund) Bill shall be introduced in the National Assembly
providing for the issue from the Development Fund and
appropriation of the sums necessary to meet that expenditure.
Auditor General
184. (1) There shall be the office of the Auditor General who shall
audit and report on the public accounts of Malawi, and shall
exercise such other powers with relation to the public
accounts and the accounts of public authorities and bodies as
may be prescribed by an Act of Parliament, insofar as they
are compatible with the principal duties of that office.
(2) The Auditor General shall submit reports at least once a year
to the National Assembly, through the Minister responsible
for Finance, not later than the first meeting of the National
Assembly after the completion of the report.
(3) Appointment to the office of Auditor General shall be made
by the Civil Service Commission, subject to satisfying the
Public Appointments Committee as to the competence of the
person so appointed to perform the duties of that office and
as to the financial probity of a person so appointed, so far as
it is relevant to the duties of that office.
(4) (a) The office of the Auditor General shall become vacant
after the person holding that office has served for five
years, provided that the person holding that office may
be nominated for such further term, not exceeding five
years, as the Civil Service Commission deems
appropriate, subject to confirmation by the Public
Appointments Committee.
(b) A person holding the office of Auditor General shall be
subject to removal by the Civil Service Commission only
by reason of that person being:
(i) incompetent in the exercise of his or her duties; or
(ii) compromised in the exercise of his or her duties to
the extent that his financial probity is in serious
question; or
(iii)otherwise incapacitated; or
(iv) over the age of seventy five.
Providing that the removal of a person holding the office of
Auditor General shall not be effected by the Civil Service
Commission, save that at least four of its members are of the
opinion that one of the criteria in this section has been
satisfied and without prejudice to the person being removed
from the office from having the right to appeal to the High
Court.
(5) Subject to subsection (4) above, in the exercise of the duties
and powers vested in the office of the Auditor General by the
Constitution or any other law, the person holding that office
shall not be subject to the direction or control of any other
person or authority.
(6) No person or authority may inhibit the Auditor General in the
conduct of his functions and duties.
CHAPTER 18
THE CONSOLIDATED FUND
185. (1) There shall be a special fund within the accounts of the State
Revenue Fund upon which shall be charged certain protected
expenditures which shall be known as the "Consolidated
Fund".
(2) The Minister responsible for Finance shall in respect of every
financial year cause to be laid before the National Assembly
before the commencement of the financial year or within four
days of the commencement of the next sitting of Parliament
after the commencement of this Constitution, an Annual
Appropriation Bill. The Annual Appropriation Bill will be for
the purposes of voting sums for expenditure from the
Consolidated Fund.
(3) The National Assembly shall pass the Annual Appropriation
Bill without revision, save where it is insufficient to meet the
expenditure to be charged on the Consolidated Fund in which
case it might revise the Bill so as to accommodate the
expenditure to be charged on the Consolidated Fund.
(4) No money shall be withdrawn from the Consolidated Fund
save in respect to the following classes of expenditure:
(a) the salaries of the President and of the Justices of Appeal
and of the High Court judges;
(b) the expenditure incurred to convene Parliament; and
(c) such other expenditure as may be specified in this
Constitution.
(5) Appropriations for the purposes of the Consolidated Fund
shall also be appropriations for the purposes of section 173,
section 176, section 177, section 178 and section 179.
CHAPTER 19
THE NATIONAL BANK
186. (1) There shall be established by Act of Parliament a Central
Bank of the Republic of Malawi which shall serve as the
State's principal instrument for the control of money supply,
currency and the institutions of finance and shall serve
generally in the normal functions of a central bank.
(2) The bank shall be controlled by a board which shall consist of
a Governor and members of the board who shall, subject to
this Constitution, be appointed in accordance with that Act of
Parliament.
CHAPTER 20
CIVIL SERVICE
Civil Service Commission
187. There shall be a Civil Service Commission which shall have the
powers and functions conferred upon it by this Constitution or any
Act of Parliament and which shall consist of a Chairman, Deputy
Chairman and not less than six nor more than ten other members.
Powers of the Civil Service Commission
188. (1) Subject to this Constitution, power to appoint persons to hold
or act in offices in the civil service, including the power to
confirm appointments, and to remove such persons from
office shall vest in the Civil Service Commission.
(2) The Civil Service Commission shall, subject to this
Constitution and any general directions of an Act of
Parliament, exercise disciplinary control over persons holding
or acting in any office to which this Chapter applies.
189. (1) The Civil Service Commission, may, subject to such
conditions as may be laid down by an Act of Parliament,
delegate powers under this section by directions in writing to
any member of the Commission or to any civil servant or
public body.
(2) Where any person or body may from time to time exercise
powers under this section on behalf of the Civil Service
Commission, in accordance with subsection (1), the Civil
Service Commission shall:
(a) require that person or body to furnish reports in such
manner or form as specified in the directions which
delegated those powers.
(b) hear such complaints or appeals from persons with
sufficient interest relating to the exercise of powers under
this section and shall have the authority to:
(i) quash the decision of a body or person exercising
such powers.
(ii) exercise such disciplinary powers with relation to
such person or body, subject to the conditions laid
down by an Act of Parliament.
(iii)revoke directions delegating powers to any person
or body.
Provided that nothing in this section shall prejudice the right of
any person who is the subject of a decision made by or on behalf
of the Civil Service Commission to appeal to the High Court or
the right of any person with sufficient interest in such a decision to
petition the High Court for judicial review of that decision.
190. This Chapter shall not apply where this Constitution has otherwise
provided for the appointment or removal of a civil servant or other
public appointment, or to appointments that are regulated by the
Judicial Service Commission, the Police Service Commission or
the Army, nor shall it apply to the following offices:
(1) the Chief Justice, the Director of Public Prosecutions and the
Attorney General;
(2) such personal staff of the President as an Act of Parliament
might allow;
(3) Ambassadors, High Commissioners and other principal
diplomatic staff, within the meaning of section 191(1);
(4) the Cabinet Secretary; and
(5) appointments in the Army and Police Services.
191. (1) Ambassadors, High Commissioners and other principal
diplomatic staff, as shall be determined by an Act of
Parliament shall be appointed by the President, provided the
Public Appointments Committee may require persons so
appointed to answer questions as to their competence and
financial probity.
(2) In any case where the Civil Service Commission has the
power of appointment of the Clerk or the Clerk-Assistant to
the National Assembly, before exercising any of its power in
relation to the Clerk or the Clerk-Assistant of the National
Assembly, the Civil Service Commission shall consult the
Speaker of the National Assembly.
Appointment
192. (1) The members of the Civil Service Commission shall be
nominated by the President, subject to satisfying the Public
Appointments Committee as to the competence of persons so
appointed to perform their duties as Civil Service
Commissioners.
(2) A person shall not be qualified for appointment as a member
of the Civil Service Commission if that person is President,
Vice-President, a Minister or Deputy Minister, a Member of
Parliament or a serving civil servant.
(3) Subject to this section, the office of a member of the Civil
Service Commission shall become vacant:
(a) at the expiration of five years from the date of that
appointment of that person, unless reappointed to a new
five-year term; or
(b) if any circumstances arise that, if he were not a member
of the Commission, would cause that person to be
disqualified for appointment as such.
(4) (a) A member of the Civil Service Commission may be
removed from office at the instance of the President if
the Public Appointments Committee is satisfied that the
member is not competent to discharge his or her duties.
Provided that nothing in this subsection shall prejudice the
right of a member of the Civil Service Commission who is
removed to appeal against the decision of the Public
Appointments Committee to the High Court.
Vacancy
193. (1) (a) If the office of Chairman of the Civil Service
Commission is vacant or the Chairman is for any reason
unable to perform the functions of his or her office, then
those functions shall be performed by the Deputy
Chairman until that vacancy is filled or the Chairman is
able to resume his duties.
(b) If both the Chairman and the Deputy Chairman are
unable to perform their functions, then another of the
members of the Commission as may be designated in that
behalf by the remaining members of the Commission
shall perform the functions of a Chairman.
(2) If at any time there are less than seven members of the Civil
Service Commission and the Public Appointments Committee
is not able to sit, either because of Parliament being dissolved
or some other reason, the Commission may appoint such
persons as are required to act as members of the
Commission, subject to the approval of the President.
Provided that the appointment of a person to act as a member of
the Civil Service Commission in accordance with this subsection
shall lapse on his appointment as a full member of the Commission
in accordance with subsection 192(1), or else on the expiry of 30
days.
Independence of the Civil Service
194. (1) Members of the Civil Service shall ensure that the exercise of
participation in political activities does not compromise their
independent exercise of their functions, powers and duties as
impartial servants of the general public.
(2) The National Assembly may prescribe a category of civil
servants, who by reason of their seniority shall not be able to
directly participate in political activities.
Provided that:
(a) members of the civil service, so restricted shall have the
right to resign in order to participate directly in political
activities;
(b) nothing in this section shall be deemed to prejudice any
member of the civil service having the absolute right to
vote in accordance with this Constitution;
(c) any civil servant whose functions are not directly
concerned with the formulation and administration of
government policies shall be exempt from restrictions
under this section; and
(d) nothing in this section shall prejudice the right of any
member of the civil service to hold office in, or be a
member of, any association, group or professional body,
the purposes of which are principally to represent their
members interests with relation to the terms and
conditions of employment or the general carrying on of
any profession or trade or the promotion of any interest,
not pertaining directly to the promotion of a political
party, campaign or philosophy.
(3) No government or party shall cause any member of the civil
service acting in that behalf to exercise functions, powers or
duties for the purposes of promoting or undermining of any
political party or individual member of that party, nor shall
any member of the civil service acting in that behalf promote
or undermine any party or member of a party, save as is
consistent with the provisions in this section.
(4) No government or party shall cause any member of the civil
service, acting in that behalf to deploy resources, whether
they be financial, material or human resources, for the
purposes of promoting or undermining any political party or
member of a political party or interest group, nor shall any
civil servant acting in that behalf cause such deployment, save
as prescribed by this Constitution or an Act of Parliament
consistent with the provision in subsection (1).
(5) Any civil servant who contravenes this section shall be
subject to such disciplinary measures as the Civil Service
Commission considers appropriate, taking into account the
gravity and circumstances of the contravention, subject to
such regulations as may be prescribed.
(6) Where the Civil Service Commission is satisfied that a
government or political party or member of a political party
has acted in contravention of subsection (3) or subsection (4),
the Civil Service Commission may initiate proceedings before
the High Court for punitive damages and, in the case of a
contravention of subsection (4), the recovery of such
resources or sums equivalent to the benefit of the enjoyment
of those resources from the party of government, or political
party or member of a political party who has so benefitted, as
the case may be.
195. (1) The Civil Service Commission or the Public Appointments
Committee, whichever is specified by an Act of Parliament,
shall have the power to supervise the composition of any
public board, commission or committee and the appointment
or removal of holders of public office.
Provided that this section shall not apply to any board
commission or committee or public office:
(a) which is regulated by democratic election in accordance
with this Constitution of any other law;
(b) which is otherwise regulated in accordance with this
Constitution;
(c) which is neither a governmental nor statutory board,
commission, committee or public office.
(2) Where by virtue of this section or any Act of Parliament,
subject to this Constitution, the Public Appointments
Committee or Civil Service Commission has had conferred on
it supervisory powers, the authority or person in whom is
vested the power to regulate the composition of a public
board, commission or committee or the appointment or
removal of a public officer, shall act with due regard to the
recommendations of the Public Appointments Committee or
Civil Service Committee as the case may be.
(3) With respect to the powers conferred on it by this section, the
Public Appointments Committee or the Civil Service
Committee, as the case may be shall only make
recommendations with regard to;
(a) issues of competence and probity of office holders that
have a direct bearing on the exercise of their functions
powers and duties;
(b) the extent to which the composition of a public board,
commission or committee is representative of the
interests to which its functions relate;
(c) the extent to which the appointing body has availed itself
of the expertise relevant to the functions of a public
board, commission or committee which are at that time
generally available.
CHAPTER 21
AMENDMENT OF THE CONSTITUTION
196. Parliament may not amend this Constitution, save as provided by
this Chapter.
197. Those Articles of the Constitution and the sections which are listed
in Schedule I, as well as this Chapter and the entirety of Schedule
I shall not be amended unless;
(1) the individual provision and the proposed amendment has be
put to a referendum of the people of Malawi and the majority
of those voting have voted for the amendment; and
(2) the results of the referendum shall be sent by the Electoral
Commission to the Speaker of the National Assembly who
might then allow a Bill which in its title is expressed to be a
Constitutional Amendment and whose content is the
amendment that has been accepted by the referendum of the
people of Malawi.
Provided that the Speaker or such person as may be acting as
Speaker of the National Assembly shall not accept to be laid,
tabled or debated in the National Assembly any Bill with relation
to the class of provisions to which this section relates, save he has
had notification from the Electoral Commission that the people of
Malawi have voted to amend a specified provision of their
Constitution.
198. Those Articles of the Constitution and the sections listed in
Schedule II and the entirety of Schedule II shall not be amended
unless:
(1) a Bill is introduced to the National Assembly which in its title
is expressed to be a Bill to amend the Constitution; and
(2) that Bill is supported by more than two thirds of the members
representing all the seats in the National Assembly, not being
vacant by reason of a by-election.
Provided the President may not assent to such a Bill save that he
has had notification from the Speaker that the National Assembly
has voted for such amendment and that the majority was such
numbers would be required by this section for amending those
class of provisions to which this subsection relates.
199. Those Articles of the Constitution and the sections listed in
Schedule III shall be amended by the passing of an Act by a simple
majority of the National Assembly, provided that in its title it is
expressed to be an Act to amend the Constitution.
200. Notwithstanding section 197, a provision listed in Schedule III may
be thereafter listed in Schedule II and notwithstanding section 184
a provision in Schedule II may be thereafter listed in Schedule I,
provided the amendment which effects such listing is passed in the
manner prescribed by section 198 or section 197, respectively.
201. Save where the context otherwise requires, any reference in this
constitution to the Chief Justice, a Justice of Appeal, or a Judge
shall be construed as including a reference to any person who,
under this constitution, is for the time being performing the duties
of Chief Justice, Justice of Appeal or Judge, respectively.
CHAPTER 22
TRANSITIONAL ISSUES
Coming into Effect of the Constitution.
202. The Republic of Malawi (Constitution) Act is hereby repealed.
203. The Republic of Malawi, the organs of State and the offices
referred to in this Constitution shall be defined and constituted in
accordance with this Constitution .
Status of the Constitution
204. This Constitution shall have the status as Supreme law and there
shall be no legal or political authority save as is provided by or
under this Constitution.
Saving of laws in force
205. Except insofar as they are inconsistent with this Constitution, all
Acts of Parliament, common law and customary law in force on
the appointed day shall continue to have force of law, as if they
had been made in accordance and pursuance with this Constitution.
Provided that any laws currently in force may be amended or
repealed by an Act of Parliament or be declared unconstitutional
by a competent court.
Elections to the National Assembly
206. For the purposes of this Constitution the first National Assembly
after the date of commencement of the Constitution shall be
composed of those persons successfully elected to the National
Assembly in accordance with the Parliamentary and Presidential
Elections Act.
Elections to the Presidency
207. For the purposes of this Constitution the first President after the
date of commencement of the Constitution will be the person
elected in accordance with the Parliamentary and Presidential
Elections Act.
Saving of judicial powers
208. The High Court shall have the same jurisdiction, powers and
procedures as before the commencement of this Constitution
subject to amendment or repeal of such powers by an Act of
Parliament
Pending legal actions
209. All legal actions currently pending or being undertaken before any
court other than before a Grade A Traditional Court, a Grade A1
Traditional Court, or a Grade B Traditional Court or any
Magistrates Court shall be commenced or continued before the
High Court of Malawi or before such Magistrates' or Grade A
Traditional Court, Grade A1 Traditional Court, or Grade B
Traditional Court as the Registrar of the High Court shall direct.
210. All legal actions currently pending or being undertaken before any
Magistrates Court before the commencement of this Constitution
shall be commenced or continued before that court which shall
have the same jurisdiction, powers and procedures as before the
commencement of this Constitution subject to amendment or repeal
of such powers by an Act of Parliament
211. All legal actions currently pending or being undertaken before any
Grade A, Grade A1 and Grade B Traditional Court before the
commencement of this Constitution shall be commenced or
continued before that court which shall have the same jurisdiction,
powers and procedures as before the commencement of this
Constitution subject to amendment or repeal of such powers by an
Act of Parliament.
212. All judgments or sentences pending execution shall be executed, as
if such judgments or sentences were ordered in accordance with
this Constitution, provided that where the Constitution provides
new grounds for appeal, any such appeal shall act as a stay of
execution.
Existing Appointments
213. Subject to the provisions of this Constitution, any person holding
office under any law in force on the date of commencement shall
continue to hold such office until such time as:
(1) that person is confirmed under this Constitution in that post;
(2) that person is replaced by another person appointed to that
post in accordance with the Constitution; or
(3) that person resigns or retires or is removed in accordance
with the Constitution.
Provided that where the Constitution has created an office with a
different designation, but an equivalent function is exercised by an
office existing at the time of the date of commencement of this
Constitution, a person occupying that office shall, from the date of
commencement of this Constitution, have such powers, functions
and designation as is prescribed for the equivalent office created by
this Constitution.
214. For the purposes of subsection 53(2) and subsection 82(1), and
only for that purpose, the person currently holding the office of
Chief Justice shall be deemed to be appointed under this
Constitution as Chief Justice.
Saving of rights in property
215. Subject to the provisions of this Constitution all lands and
territories of Malawi are vested in the Republic.
216. The Government shall have title to all rights in property which are
vested in the Government of Malawi on the date of commencement
of this Act, save as otherwise provided by section 217(2) of this
Chapter, and provided that the disposal of rights in property where
title is vested in the Government shall not be made without the
consent of Parliament.
217. (1) All persons who have rights in property at the date of the
commencement of this Constitution shall continue to have
such rights, under this Constitution and any other law.
(2) This section shall not apply in respect of rights in property
that have been acquired or vested by or on behalf of the
government of Malawi where that property was acquired or
vested at any time since the 6th of January 1964 and where
that right in property was obtained from citizens or
permanent residents of Malawi:
(a) unlawfully according to the laws then in force in Malawi;
(b) by virtue of any law passed by the government during
that time that did not provide for adequate compensation;
or
(c) through abandonment by reason of duress of
circumstances;
(3) "Government" for the purposes of this section shall mean the
President, the Cabinet, Ministries, other organs of the
President and Cabinet and their agents, including individuals
and bodies under the authority of the President and the
Cabinet.
(4) Rights in property which are not recognised by virtue of this
section shall be liable to have their legal and equitable title
vested in the National Compensation Fund and shall be
disposed of in accordance with the principles procedures and
rules of the National Compensation Tribunal.
(5) Persons occupying or using property whose title is liable to
be vested in the National Compensation Fund shall continue
to occupy and use that property, as if they retained full legal
and equitable title until such time as the National
Compensation Tribunal otherwise orders.
The National Council
218. (1) Until the establishment of the National Council and the
election and appointment of its members:
(a) all legislation shall be enacted by the National Assembly
as if this Constitution had not made provision for the
Upper House, and Parliament had consisted exclusively
of the National Assembly acting on its own without being
subject to the review of the Upper House.
(b) this Constitution shall be construed as if no functions had
been vested in the Upper House.
Provided that nothing in this section shall be taken or
construed to effect the provisions laid out in Chapter 5.
International Law
219. (1) All rights and obligations in International law, including
Customary International Law, which immediately before the
commencement of this Constitution were vested in or binding
on the Republic, shall be vested in or binding on the Republic
under this Constitution.
(2) International agreements ratified in accordance with this
Constitution shall form part of the law of the Republic if so
provided for in the Ratification Act of Parliament.
(3) International agreements entered into before the
commencement of this Constitution and binding on the
Republic shall form part of the law of the Republic if
Parliament so provides.
(4) Customary International Law binding on the Republic on the
Republic before the commencement of this Constitution,
unless inconsistent with this Constitution or an Act of
Parliament shall form part of the law of the Republic.
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