CONSTITUTION
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Current
Date Enacted
18TH MAY, 1994
Commencement
Jan 01, 0001
General Notice
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Chapter
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Description
An Act to adopt and enact the Constitution of the Republic of Malaŵi
Parts of the Act
CHAPTER I
THE REPUBLIC OF MALAŴI
Sections
Malaŵi shall have a National Flag, a National Coat of Arms, aNational Anthem and a Public Seal.
The Republic of Malaŵi is a sovereign State with rights and obligations under the Law of Nations.
3. The national territory of the Republic of Malaŵi shall consistof all the territory, including airspace, waters and islands which comprised the territory of Malaŵi before the commencement of this Constitution, and shall include any territory lawfully acquired thereafter by adjustment of boundaries or otherwise.
This Constitution shall bind all executive, legislative and judicial organs of the State at all levels of Government and all the peoples of Malaŵi are entitled to the
Any act of Government or any law that is inconsistent with theprovisions of this Constitution shall, to the extent of suchinconsistency, be invalid.
Save as otherwise provided in this Constitution, the authorityto govern derives from the people of Malaŵi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament.
The executive shall be responsible for the initiation of policiesand legislation and for the implementation of all laws which embody the express wishes of the people of Malaŵi and which promote the principles of this Constitution.
The legislature shall be responsible for the enactment of lawsand shall ensure that its deliberations reflect the interests of all the people of Malaŵi and that the values expressed or implied in this Constitution are furthered by the laws enacted.
The judiciary shall have the responsibility of interpreting,protecting and enforcing this Constitution and all laws and inaccordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.
CHAPTER II
APPLICATION AND INTERPRETATION
Sections
(1) In the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regardedas the supreme arbiter and ultimate source of authority.
(2) In the application and formulation of any Act of Parliament and in the application and development of the common law andcustomary law, the relevant organs of State shall have due regard to the principles and provisions of this Constitution.
(1) Appropriate principles of interpretation of this Constitution shall be developed and employed by the courts to reflect the unique character and supreme status of this Constitution.
(2) In interpreting the provisions of this Constitution a court of law shall—
(a) promote the values which underlie an open and democratic society;
(b) take full account of the provisions of Chapter III and Chapter IV; and(c) where applicable, have regard to current norms of public international law and comparable foreign case law.
(3) Where a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution.
(4) Any law that ousts or purports to oust the jurisdiction of the courts to entertain matters pertaining to this Constitution shall be invalid.
CHAPTER III
FUNDAMENTAL PRINCIPLES
Sections
(1) This Constitution is founded upon the following underlying principles—
(a) all legal and political authority of the State derives from the people of Malaŵi and shall be exercised in accordance with thisConstitution solely to serve and protect their interests;
(b) all persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent oftheir lawful authority and in accordance with their responsibilities to the people of Malaŵi;
(c) the authority to exercise power of State is conditional upon the sustained trust of the people of Malaŵi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice;
(d) the inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect 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;
(e) 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; and(f) all institutions and persons shall observe and uphold this Constitution and the rule of law and no institution or person shall stand above the law.
(2) Every individual shall have duties towards other individuals, his or her family and society, the State and other legally recognized communities and the international community and these duties shall include the duty to respect his or her fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance; and in recognition of these duties, individual rights and freedoms shall be exercised with due regard for the rights of others, collective security, morality and the common interest.
The State shall actively promote the welfare and development of the people of Malaŵi by progressively adopting and implementing policies and legislation aimed at achieving the following goals —
(a) Gender Equality To obtain gender equality through —
(i) full participation of women in all spheres of Malaŵian society on the basis of equal opportunities with men;(ii) the implementation of the principles of nondiscrimination and such other measures as may be required; and(iii) the implementation of policies to address social issues such as domestic violence, security of the person, lack ofmaternity benefits, economic exploitation and rights to property.
(b) NutritionTo achieve adequate nutrition for all in order to promote good health and self-sufficiency.
(c) HealthTo provide adequate health care, commensurate with the health needs of Malaŵian society and international standards of health care.
(d) The EnvironmentTo manage the environment responsibly in order to—
(i) prevent the degradation of the environment;(ii) provide a healthy living and working environment for the people of Malaŵi;(iii) accord full recognition to the rights of future generations by means of environmental protection and the sustainable development of natural resources; and(iv) conserve and enhance the biological diversity of Malaŵi.
(e) Rural LifeTo enhance the quality of life in rural communities and to recognize rural standards of living as a key indicator of the success of Government policies.
(f) EducationTo provide adequate resources to the education sector and devise programmes in order to —
(i) eliminate illiteracy in Malaŵi;(ii) make primary education compulsory and free to all citizens of Malaŵi;(iii) offer greater access to higher learning and continuing education; and(iv) promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance.
(g) Persons with DisabilitiesTo enhance the dignity and quality of life of persons with disabilities by providing—
(i) adequate and suitable access to public places;(ii) fair opportunities in employment; and(iii) the fullest possible participation in all spheres of Malaŵian society.
(h) ChildrenTo encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.
(i) The FamilyTo recognize and protect the family as a fundamental and vital social unit.
(j) The ElderlyTo respect and support the elderly through the provision of community services and to encourage participation in the life of the community.
(k) International RelationsTo govern in accordance with the law of nations and the rule of law and actively support the further development thereof in regional and international affairs.
(l) Peaceful Settlement of DisputesTo strive to adopt mechanisms by which differences are settled through negotiation, good offices, mediation, conciliation and arbitration.
(m) Administration of JusticeTo 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.
(n) Economic ManagementTo achieve a sensible balance between the creation and distribution of wealth through the nurturing of a market economy and long-term investment in health, education, economic and social development programmes.
(o) Public Trust and Good GovernanceTo 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 principles of national policy contained in this Chapter shall be directory in nature but courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.
CHAPTER IV
HUMAN RIGHTS
Sections
(1) The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature, judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malaŵi and shall be enforceable in the manner prescribed in this Chapter.
(2) Any person or group of persons, natural or legal, with sufficient interest in the promotion, 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 the Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights.
Every person has the right to life and no person shall be arbitrarily deprived of his or her life:Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malaŵi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.
(1) The dignity of all persons shall be inviolable.
(2) 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.
(3) No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.
(4) No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State.
(5) No person shall be subjected to medical or scientific experimentation without his or her consent.
(6) Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be—
(a) detained without trial;
(b) detained solely by reason of his or her political or other opinions; or(c) imprisoned for inability to fulfill contractual obligations.
(1) Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.
(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.
Every person shall have the right to personal privacy, which shall include the right not to be subject to —
(a) searches of his or her person, home or property;
(b) the seizure of private possessions; or(c) interference with private communications, including mail and all forms of telecommunications.
(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) All men and women have the right to marry and found a family.
(4) No person shall be forced to enter into marriage.
(5) Subsections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.
(6) No person over the age of eighteen years shall be prevented from entering into marriage.
(7) [Repealed by 15 of 2017.](8) [Repealed by 15 of 2017.]
(1) All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them.
(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 to be raised by, their parents.
(4) All children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance.
(5) Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to —
(a) be hazardous;
(b) interfere with their education; or(c) be harmful to their health or to their physical, mental or spiritual or social development.
(6) A child shall be a person under the age of eighteen years.
(1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right—
(a) to be accorded the same rights as men in civil law, including equal capacity—
(i) to enter into contracts;(ii) to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;(iii) to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and(iv) to acquire and retain citizenship and nationality.
(b) on the dissolution of marriage, howsoever entered into—
(i) to a fair disposition of property that is held jointly with a husband; and(ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.
(2) Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as—
(a) sexual abuse, harassment and violence;
(b) discrimination in work, business and public affairs; and(c) deprivation of property, including property obtained by inheritance.
(1) All persons are entitled to education.
(2) Primary education shall consist of at least five years of education.
(3) 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 in State schools.
Every person shall have the right to use the language and to participate in the cultural life of his or her choice.
(1) No person shall be held in slavery or servitude.
(2) Slavery and the slave trade are prohibited.
(3) No person shall be subject to forced labour.
(4) No person shall be subject to tied labour that amounts to servitude.
(1) Every person shall be able to acquire property alone or in association with others.
(2) No person shall be arbitrarily deprived of property.
Every person shall have the right freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malaŵi.
(1) All persons and peoples have a right to development Right to and therefore to the enjoyment of economic, social, cultural and political development and women, children and persons with disabilities in particular shall be given special consideration in the application of this right.
(2) The State shall take all necessary measures for the realization 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, employment and infrastructure.
(3) The State shall take measures 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.
(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 form or join trade unions.
(3) Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.
(4) The State shall take measures to ensure the right to withdraw labour.
(1) Every person shall have the right to freedom of association, which shall include the freedom to form associations.
(2) No person may be compelled to belong to an association.
Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.
Every person shall have the right to freedom of opinion, including the right to hold, receive and impart opinions without interference.
The press shall have the right to report and publish freely, within Malaŵi and abroad, and to be accorded the fullest possible facilities for access to public 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 in so far as such information is required for the exercise of his or her rights.
Every person shall have the right to assemble and demonstrate with others peacefully and unarmed.
(1) Every person shall have the right of freedom of movement and residence within the borders of Malaŵi.
(2) Every person shall have the right to leave the Republic and to return to it.
(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;
(c) to participate in peaceful political activity intended to influence the composition and policies of the Government; and(d) freely to make political choices.
(2) The State shall, provide funds so as to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency.
(3) Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office.
(1) Every person shall have a right to recognition as a person before the law.
(2) Every person shall have the right of access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues.
(3) Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.
(1) Every person who is detained, including every sentenced prisoner, shall have the right—
(a) to be informed of the reason for his or her detention promptly, and in a language which he or she understands;
(b) to be held under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;
(c) to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, 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, partner, next-of-kin, relative, religious counsellor and a medical practitioner of his or her choice;
(e) to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and(f) to be released if such detention is unlawful.
(2) Every person arrested for, or accused of, 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 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 independent and impartial 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 released;
(c) not to be compelled to make a confession or admission which could be used in evidence against him or her;
(d) save in exceptional circumstances, to be segregated from convicted persons and to be subject to separate treatment appropriate to his or her status as an unconvicted person;
(e) to be released from detention, with or without bail unless the interests of justice require otherwise;
(f) as an accused person, to a fair trial, which shall include the right—
(i) to public trial before an independent and impartial court of law within a reasonable time after having been charged;(ii) to be informed with sufficient particularity of the charge;(iii) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;(iv) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;
(v) to be represented by a legal practitioner of his or her choice or, where it is required in the interests of justice, to be provided with legal representation at the expense of the State, and to be informed of these rights;(vi) not to be convicted of an offence in respect of any act or omission which was not an offence at the time when the act was committed or omitted to be done, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;(vii) not to be prosecuted again for a criminal act or omission of which he or she has previously been convicted or acquitted, save upon the order of a superior court in the course of an appeal or review proceedings relating to that conviction or acquittal;(viii) to have recourse by way of appeal or review to a higher court than the court of first instance;(ix) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands; and(x) to be sentenced within a reasonable time after conviction;
(g) in addition, if that person is a person under the age of eighteen years, to treatment consistent with the special needs of children, which shall include the right—
(i) not to be sentenced to life imprisonment without possibility of release;(ii) to be imprisoned only as a last resort and for the shortest period of time consistent with justice and protection of the public;(iii) to be separated from adults when imprisoned, unless it is considered to be in his or her best interest not to do so, and to maintain contact with his or her family through correspondence and visits;(iv) to be treated in a manner consistent with the promotion of his or her sense of dignity and worth, which reinforces respect for the rights and freedoms of others;
(v) to be treated in a manner which takes into account his or her age and the desirability of promoting his or her reintegration into society to assume a constructive role;(vi) to be dealt with in a form of legal proceedings that reflects the vulnerability of children while fully respecting human rights and legal safeguards; and(h) in addition, if that person is a person with a disability, in recognition of his or her particular vulnerability, to be held, wherever possible, in separate accommodation.
Every person shall have the right to—
(a) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and(b) be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected.
44.—(1) No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized 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, and shall be of general application.
(3) Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law.
(4) Wherever it is stated in this Constitution that a person has the right to the services of a legal practitioner or medical practitioner of his or her own choice, that right shall be without limitation, save where the State is obliged to provide such services of a legal practitioner or medical practitioner, in which case an Act of Parliament may prescribe that the choice of the legal practitioner or medical practitioner should be limited to those in Government service or employment.
45.—(1) No derogation from rights contained in this Chapter shall be permissible save to the extent 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) There shall be no derogation with regard to—
(a) the right to life;
(b) the prohibition of torture and cruel, inhuman or degrading treatment or punishment;
(c) the prohibition of genocide;
(d) the prohibition of slavery, the slave trade and slave-like practices;
(e) the prohibition of imprisonment for failure to meet contractual obligations;
(f) the prohibition on retrospective criminalization and the retrospective imposition of greater penalties for criminal acts;
(g) the right to equality and recognition before the law;
(h) the right to freedom of conscience, belief, thought and religion and to academic freedom; or(i) the right to habeas corpus.
(3) 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 the Defence and Security Committee of the National Assembly;
(c) only in times of war, threat of war, civil war or widespread natural disaster;
(d) only with regard to the specific location where that emergency exists, and that any declaration of a state of emergency shall be publicly announced; and(e) only after the state of emergency has been publicly announced.
(4) Derogation from the rights contained in this Chapter, other than the rights listed in subsection (2), shall be permissible during a state of emergency within the meaning of this section and to the extent that—
(a) such derogation is consistent with the obligations of Malaŵi under international law; and(b) in the case of—
(i) war or threat of war, it is strictly required to prevent the lives of defensive combatants and civilians as well as legitimate military objectives from being placed in direct jeopardy; or(ii) a widespread natural disaster, it is strictly required for the protection and relief of those people and facilities whether in or outside the disaster area.
(5) The declaration of a 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.
(6) The High Court shall be competent to hear applications challenging the validity of a declaration of a state of emergency, any extension thereof, and any action taken, including any regulation enacted, under such declaration.
(7) 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 and in any case not later than forty-eight hours of detention;
(b) the name of every detainee and a reference to the measures in terms of which he or she is being detained shall be published in the Gazette within five days of his or her detention;
(c) when rights entrenched in section 19 (6) (a) or section 42 (2)(b) have been suspended—
(i) the detention of a person shall, as soon as it is reasonably possible but not later than ten days after his or her detention, be reviewed by a court, 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 five days after a review under subparagraph (i) be entitled to apply to 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;
(d) the State shall for the purpose of a review referred to in paragraph (c) 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.
(8) If a court finds the grounds for the detention of a person to be unjustified or illegal it shall order his or her release and that person shall not be detained again on the same grounds unless the State shows good cause to a court prior to such re-detention.
(9) Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.
(1) Save in so far as it may be authorized 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 rights and freedoms enshrined in this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.
(2) Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled—
(a) to make application to a competent court to enforce or protect such a right or freedom; and(b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.
(3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated.
(4) A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.
(5) The law shall prescribe criminal penalties for violations of those non-derogable rights listed in section 44 (1).
CHAPTER V
CITIZENSHIP
Sections
(1) Every person who, immediately before the appointed day, was a citizen of Malaŵi under any existing law shall continue to be a citizen of Malaŵi after the appointed day.
(2) An Act of Parliament may make provision for the acquisition or loss of citizenship of Malaŵi by any person after the appointed day, but citizenship shall not be arbitrarily denied or deprived.
(3) In this section, the expression—
(a) “acquisition of citizenship” includes acquisition by birth, descent, marriage, registration, naturalization or any other means prescribed by an Act of Parliament; and(b) “loss of citizenship” includes loss by deprivation, renunciation or any other means prescribed by an Act of Parliament.
CHAPTER VI
THE LEGISLATURE
Sections
(1) Parliament may, with respect to any particular Act of Parliament, delegate to the executive or to the judiciary the power to make subsidiary legislation within the specification and for the purposes laid out in that Act and any subsidiary legislation so made shall be laid before Parliament in accordance with its Standing Orders.
(2) Notwithstanding subsection (1), Parliament shall not have the power to delegate any legislative powers which would substantially and significantly affect the fundamental rights and freedoms recognized by this Constitution.
(1) All legislative powers of the Republic shall be vested in Parliament which shall have the powers and responsibilities set outin this Constitution.
(2) An Act of Parliament shall have primacy over other forms of law, but shall be subject to this Constitution.
(3) Any question proposed for decision by the National Assembly shall be decided by a majority of the votes of the members present and voting, unless this Constitution or any Act of Parliament otherwise provides.
49.—(1) For the purposes of this Constitution, unless otherwise provided, “Parliament” consists of the National Assembly and the President as Head of State.
(2) An “Act of Parliament” shall be a Bill which has—
(a) been laid before the National Assembly;
(b) been passed in the National Assembly by a simple majority or such other majority as is otherwise required by this Constitution in respect of any particular Bill; and(c) been assented to by the President in accordance with this Chapter.
(3) “Chamber” means the Chamber of the National Assembly.
(1) The quorum of the National Assembly shall be formed by the presence at the beginning of any sitting of at least one half plus one of the members of that Chamber entitled to vote, not including the Speaker or a presiding member.
(2) If it is brought to the attention of the Speaker of the National Assembly or presiding member by any member of Parliament that there are less than the number of members prescribed by the Standing Orders and after such interval as may be prescribed by the Standing Orders, the Speaker of the National Assembly or presiding member ascertains that the number of members present is still less than that prescribed by the Standing Orders, he or she shall adjourn the proceedings of the National Assembly.
51.—(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 at the time of nomination has attained the age of twenty-one years;
(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.
(2) Notwithstanding subsection (1), no person shall be qualified to be nominated or elected as a member of Parliament who—
(a) owes allegiance to a foreign country;
(b) is, under any law in force in the Republic, adjudged or otherwise declared to be mentally incompetent;
(c) has, within the last seven years, been convicted by a competent court of a crime involving dishonesty or moral turpitude;
(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 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 or appointment in order to stand;
(f) belongs to, and is serving in the Defence Force of Malaŵi or the Malaŵi Police Service; and(g) has, within the last seven years, been convicted by a competent court of any violation of any law relating to election of the President or election of members of Parliament or local government elections.
(3) For the purposes of subsection (2) (e), an appointment as a Minister or Deputy Minister in accordance with section 94 (1) shall not be construed to be an appointment to a public office or to be a public appointment.
Every member of Parliament, before taking his or her seat, and every officer of Parliament, before assuming duties of his or her office, shall take and subscribe before the Chief Justice in the National Assembly—
(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.
(1) There shall be a Speaker of the National Assembly who shall be elected by majority vote of the members thereof at the first sitting after every dissolution of the National Assembly.
(2) The members of the National Assembly shall elect one or more from among themselves to be Deputy Speaker or Deputy Speakers of the National Assembly at the first sitting after a general election.
(3) The office of Speaker or Deputy Speaker shall become vacant—
(a) on the death or resignation of the holder;
(b) if the holder ceases to be a member of the National Assembly;
(c) if the holder becomes President, Vice-President, a Minister or a Deputy Minister; or(d) if the National Assembly, by a resolution supported by the votes of not less than two-thirds of the members of the National Assembly, resolves that the holder be removed from office:Provided that the Speaker or the Deputy Speaker shall have the right to be heard by the Chamber on his or her own motion on any matter relating to his or her removal from office.
(4) The Speaker, or in his or her absence, such Deputy Speaker as the Speaker has nominated, shall preside at every sitting of the National Assembly:Provided that in the absence of the Speaker and every Deputy Speaker, the members of the National Assembly may elect one of their number to act as Speaker for as long as there is no Speaker or Deputy Speaker.
(5) The Speaker, the Deputy Speaker or any other presiding member shall discharge his or her functions and duties and exercise such powers as he or she has by virtue of that office independent or the direction or interference of any body or authority, save as accords with the express will and the Standing Orders of the National Assembly.
(6) Notwithstanding that the Speaker, Deputy Speaker or any other presiding member has been elected as a member of a political party to the National Assembly he or she shall not be subject to the control, discipline, authority or direction of that political 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.
(7) The Speaker may, where the matter under debate in the National Assembly pertains to his or her constituency, temporarily vacate the Speaker’s seat and participate in that debate and exercise a deliberative vote where there is voting on that matter.
(8) The Speaker and Deputy Speakers shall receive a salary, allowances and other benefits for their services on expiry of their term of office such pension, gratuity or other benefits as may be prescribed under an Act of Parliament.
54.— (1) Subject to section 53 (7) the Speaker shall not have a deliberative vote, but if the votes of the National Assembly are equally divided upon any question, he or she shall exercise the casting vote.
(2) Any presiding member shall retain his or her original deliberative vote as a member and shall, in addition, have and exercise a casting vote Casting vote where the votes of the National Assembly on any question are equally divided.
There shall be a Clerk to the National Assembly who shall be a public officer and shall assist the Speaker of the National Assembly and perform such other functions and duties as the Speaker may direct.
56.— (1) Subject to this Constitution, the National Assembly, may by Standing Order or otherwise regulate its own procedure.
(2) Save as otherwise provided in this Constitution, the National Assembly may act unless more than two-thirds of all the seats of the National Assembly are vacant.
(3) The presence or participation of any person not entitled to be present or to participate in the proceedings of the National Assembly shall not invalidate those proceedings.
(4) The National Assembly 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 the National Assembly may prescribe.
(6) Parliament may establish any committees of its members and may form joint committees for the scrutiny of legislation and performance of other functions, except voting on motions and Bills.
(7) In addition to any committee appointed under subsection (6), there shall be a Public Appointments Committee, a Budget Committee and a Legal Affairs Committee of the National Assembly which shall each—
(a) be appointed by the National Assembly with proportionate representation from all parties represented in the National Assembly;
(b) be appointed within thirty days of the first sitting of the National Assembly after a general election and thereafter annually; and(c) perform such functions as are conferred on them by this Constitution or by an Act or resolution of Parliament or by the Standing Orders of Parliament.
Except upon the recommendation of the Minister responsible for Finance, signified in writing, the National Assembly shall not—
(a) proceed upon any Bill or any amendment to a Bill that, in the opinion of the person presiding, makes provision for any of the following purposes—
(i) for the imposition of tax or the alteration of tax;(ii) for the imposition of any charge upon the Consolidated Fund, or the alteration of any such charge;(iii) for the payment, issue or withdrawal from the Consolidated Fund of any moneys not charged thereon, or any increase in the amount of such payment, issue or withdrawal; or (iv) for the composition or remission of any debt due to the Government;
(b) proceed upon any motion or any amendment to a motion the effect of which, in the opinion of the person presiding, would be to make provision for any of the purposes specified in subsection (a); or(c) receive any petition that, in the opinion of the person presiding, requests that provision be made for any of the purposes specified in paragraph (a).
59.— (1) Every meeting of the National Assembly shall be held at such place within Malaŵi and shall commence at such time as the Speaker of the National Assembly, in consultation with the President, may appoint and the sittings of the National Assembly after the commencement of that meeting shall be held at such times and on such days as the National Assembly shall appoint:Provided that—
(a) the President, in consultation with the Speaker of the National Assembly, may summon, on extraordinary occasions, a meeting of the National Assembly;
(b) the President may, in consultation with the Speaker of the National Assembly, prorogue the National Assembly; and(c) the Speaker may at the commencement of each session lay before the National Assembly in accordance with procedures prescribed in the Standing Orders, a calendar of Meetings of the National Assembly within that session for approval by resolution of the National Assembly.
(2) There shall be held at least three meetings of the National Assembly in each session.
(3) A session of the National Assembly shall be opened by the President on such date as the President, in consultation with the Speaker of the National Assembly, shall determine.
(4) A session shall be of such duration as the President, in consultation with the Speaker of the National Assembly, shall determine.
(1) The Speaker, every Deputy Speaker, and every member of the National Assembly shall, except in cases of treason, be privileged from arrest while going to, returning from or while in the precincts of the National Assembly and shall not, in respect of any utterances that forms part of the proceedings in the National Assembly, 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 in any committee thereof wherever published shall be protected by absolute privilege.
(3) The National Assembly and any committee of the National Assembly shall have the power to conduct investigations and exercise the power to subpoena the attendance of any person or office holder whosoever as required in connexion with the prudent exercise of the functions of the National Assembly and failure to attend without leave or without valid reason or excuse shall be held to be a contempt of the National Assembly or committee in question.
(4) The National Assembly shall lay down in Standing Orders the procedure to be followed by the National Assembly or committee concerned in holding any person in contempt of the National Assembly or committee; and such procedure shall comply with the principles of natural justice so far as the circumstances allow.
(1) A member of Parliament, where he or she has a direct or indirect material interest in a matter being debated by the National Assembly shall—
(a) disclose such interest to the National Assembly; and(b) not be entitled to vote on that matter without leave of the National Assembly.
(2) Where a member of Parliament fails to disclose a material interest in accordance with subsection (1) that member shall be guilty of contempt of the National Assembly.
(1) The National Assembly shall consist of such number of seats, representing every constituency in Malaŵi, as shall be determined by the Electoral Commission.
(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.
63.—(1) The seat of a member of the National Assembly shall become vacant—
(a) if the National Assembly has been dissolved;
(b) if the member dies or resigns his or her seat;
(c) if the member ceases to be a citizen of Malaŵi;
(d) if the 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; or(f) if the National Assembly declares a member’s seat vacant in accordance with such 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 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) Parliament shall make provision for holding by-elections to fill any vacancy that shall occur;
(b) any by-election to fill the vacancy shall be held in the next quarter of the calendar year after the seat of the member becomes vacant, or if the circumstances do not so permit, then as expeditiously as possible, but a by-election shall not be held where a vacancy occurs within twelve months before the holding of a general election; and(c) any member elected at a by-election shall serve until such time as his or her 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 to a court or other body to which an appeal lies against a decision which would require that member to vacate his or her seat in accordance with this section.
(1) The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or association or organization whose objectives or activies are political in nature.
(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 a member shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the National Assembly, of which he or she is a member.
(1) The National Assembly shall be a directly elected Chamber which shall have power, subject to this Constitution, to—
(a) receive, amend, accept or reject Government Bills and Private Bills;
(b) initiate Private Member’s Bills on the motion of any member and amend, accept or reject all Private Member’s Bills;
(c) debate and vote motions in relation to any matter including motions to indict and convict the President or Vice-President by impeachment;
(d) exercise such other functions and powers as are conferred on it by this Constitution or by an Act of Parliament;
(e) take all actions incidental to and necessary for the proper exercise of its functions.
(f) exercise oversight over Government’s revenue and expenditure; and(g) oversee the exercise of powers and functions of the Executive.
(2) For the purposes of this Constitution—
(a) a Government Bill shall be a Bill promulgated by the Government and introduced to Parliament on behalf of the Government;
(b) a Private Bill shall be—
(i) promulgated by an agency that is not part of the Government; and(ii) introduced to Parliament on behalf of that agency where that agency is mandated by an Act of Parliament so to do;
(c) a Private Member’s Bill shall be—
(i) promulgated by a member of Parliament; and(ii) introduced by that member in the National Assembly in accordance with its own procedure.
67.—(1) The National Assembly shall stand dissolved on the 23rd day of July in the fifth year after its election, and the polling for the general elections for the next National Assembly shall take place concurrently with the election for the President and local councillors and the polling day shall be the Tuesday in the third week of September that year:Provided that where it is not practicable for the polling to be held on the Tuesday in the third week of September, the polling shall be held on any day, within seven days from that Tuesday, appointed by the Electoral Commission; and Provided further that, in the case of the National Assembly constituted in June, 2019, the members so elected and constituting the National Assembly shall hold office until the 23rd day of July, 2025.
(2) This section shall not preclude the Electoral Commission from setting other days for polling in the general election for special classes or categories of voters:Provided that such polling takes place not more than two days, before or after the polling day, excluding Sundays.
(3) The first meeting of the National Assembly shall commence on a date to be appointed by the President occurring within forty-five days after the polling day or, where polling takes place on more than one day, within forty-five days after the last polling day.
(4) If, between the dissolution of the National Assembly and the general election that follows, the President is of the opinion that a constitutional crisis or emergency has arisen which requires urgent legislation or consideration by the National Assembly, he or she may reconvene the National Assembly for that purpose alone, but in any event, that reconvened National Assembly, shall stand dissolved on the date of the general election.
(5) Notwithstanding the dissolution of the National Assembly on the date specified in subsection (1), every person who, immediately before the dissolution of the National Assembly in accordance with subsection (1), is a member of the National Assembly shall be entitled to receive his or her remuneration and other benefits up to and including the last date preceding the general election.
CHAPTER VII
CHAPTER VIII
THE EXECUTIVE
CHAPTER IX
THE JUDICATURE
CHAPTER X
THE OMBUDSMAN
CHAPTER XI
HUMAN RIGHTS COMMISSION
CHAPTER XII
LAW COMMISSION
CHAPTER XIII
NATIONAL COMPENSATION FUND
CHAPTER XIV
LOCAL GOVERNMENT
CHAPTER XV
THE POLICE
CHAPTER XVI
THE DEFFENCE FORCE
CHAPTER XVII
PRISONS
CHAPTER XVIII
FINANCE
CHAPTER XIX
THE RESERVE BANK OF MALAŴI
CHAPTER XX
CIVIL SERVICE
CHAPTER XXA
PARLIAMENTARY SERVICE
CHAPTER XXI
AMENDMENT OF THIS CONSTITUTION
CHAPTER XXII
TRANSITIONAL PROVISIONS
CHAPTER XXIII
MISCELLANEOUS
NO PART
NOTHING
Sections
The Republic of Malaŵi (Constitution) Act, 1966, and theConstitution enacted thereunder and amended from time to time are hereby repealed.
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