DRAFT CONSTITUTION OF THE REPUBLIC OF MALAWI

(This is revised & corrected, posted to Wiretap 3/29/94, submitted by LLK@unh.edu)


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: JBarker@p103.f1.n7231.z5.fidonet.org OR llk@unh.edu
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)