Malawi FlagNGO Law Monitor: Malawi

Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Last updated 6 April 2016

Update: The Government of Malawi, through the NGO Board, has commenced a review of the NGO Act and the NGO Policy. The review has been received with mixed reactions, following statements from the Minister of Gender, Children, Disability and Social Welfare that urged the NGO Board to close NGOs that are not accountable, which was construed as targeting NGOs that are critical of the current government. As the NGO Policy has been developed, some NGOs feel they have been sidelined, and they are not clear about what it is intended to regulate. The NGO Policy's stated purpose, however, is to operationalize the NGO Act and resolve situations where both the government and NGOs have had conflicting concerns.

In addition, the government has been developing a new Access to Information Law. While the original draft law proposed the creation of an Independent Public Information Commission, the latest draft reportedly has removed or altered provisions that provided for the Commission. As a result, the media demanded that Parliament reject the draft Law. In addition, the Malawi Human Rights Commission stated that the establishment of the Independent Public Information Commission is key to the promotion and protection of the right to information and freedom of expression in Malawi. Nonetheless, on February 12, 2016, the Cabinet of Ministers approved the Law, after which it was sent to the 193-member unicameral National Assembly for debate and a vote through the body's Legal and Constitutional Affairs Committee.

Please see "Pending NGO Legislative / Regulatory Initiatives" below in this report for more details.

Introduction

Civil society in Malawi encompasses non-governmental organizations (NGOs), faith based organizations, trade unions and other groups that have existed since before Malawi attained independence in 1964. However, prior to and soon after independence, the work of these groups remained largely developmental. The NGOs that promote human rights and work in advocacy emerged only at the dawn of multiparty democracy in 1994.

Nonetheless, civil society has been central to Malawi’s progress. NGOs have played an important role in furthering democracy and human rights, social and economic development, and nation-building. In October 2005, Andrew Galea Debono of the Commonwealth Human Rights Initiative noted that while it is true that many NGOs, the media, academics and many other community groups focus primarily on providing services to the community, experience has shown that they have also often been key facilitators of government-citizen dialogue as well as having an important monitoring role of government activities.

NGOs have also earned a reputation for playing a vital role in being the voices of the voiceless in Malawi and have helped to consolidate a democratic culture in the country since the institution of multi-party democracy in 1994 by providing checks and balances against governmental corruption. Their contributions also have been seen in areas such as health, education, and environment. Those in arts and culture have also played a critical role in safeguarding and preserving Malawi’s identity, while those in human rights have made strides in raising community awareness against negative cultural traditions and beliefs such as child marriages and witchcraft. However, some advances in deepening human rights in Malawi have at times received resistance from the citizenry, particularly on Gay, Lesbian, Bisexual, Transgender (LGBT) issues.

Due to the watchdog roles they play, NGOs have on many occasions turned out to be among the government’s fiercest critics, and at times government officials have labeled them as an “opposition” force. Such acrimony has resulted in a number of civil society activists working in a very politically sensitive environment, with numerous incidences of threats, physical and emotional harassment. While political threats and intolerance were the order of the day in the government led by President Bingu wa Mutharika, who died in April 2012, such tendencies resurfaced in 2013 under the government led by President Joyce Banda (the Peoples Party (PP)).  April 2013, for example, saw one of the tribal chiefs forced into hiding for appearing to criticize the President while another NGO leader was harshly reprimanded for criticizing government policies on May 1, 2013.

President Peter Mutharika, who took office on May 31, 2014, announced in September 2014 that his government would prioritize the review of Malawi's NGO Act. The new Act is expected to include provisions that would allow the intelligence service to monitor NGO operations and the President's office to review any request to carry out research in the country. This is one of the latest examples of the ongoing pressures on civil society. The review of the NGO Act and a corresponding NGO Policy, which has been shrouded in secrecy, comes as there is growing concern among NGOs that the current legal framework is more constraining than enabling for civil society, especially in the context of registration and operations.

Back to Top

At a Glance

Organizational Forms
Community-Based Organizations (CBOs), Faith-Based Organizations (FBOs), and Non-governmental Organizations (NGO).
 
Registration Body CBOs are registered by the Ministry of Gender, Women and Child Development, through the Social Welfare Department; NGOs may be registered by the Registrar General under either under the Trustees Incorporation Act or Companies Act. But for them to be fully recognized as “NGOs”, they must proceed to also register with the Council for Non-Governmental Organizations (CONGOMA) as well as with the NGO Board of Malawi under the NGO Act. 
Approximate Number 260 NGOs registered with the NGO Board; 510 registered NGOs across all the sectors of development; thousands of CBOs.
Barriers to Entry Laws prohibit unregistered groups, “agreements” and MoUs required for activities, and excessive fees.
Barriers to Activities Any activity deemed by the NGO Board as against “public interest” is a basis for deregistration or restrictions. The police have also failed to protect NGOs from threats.
Barriers to Speech and/or Advocacy The Penal Code has a number of offences that impose undue censorship of speech, such as “sedition.”
Barriers to International Contact No significant legal barriers.
Barriers to Resources No significant legal barriers.
Barriers to Assembly Vague language in regulations, at least 48 hours advance notification requirement, excessive liabilities on organizers and participants, police use excessive force to break up protests.

Back to Top

Key Indicators

Population 16,777,547 (July 2013 est.)
Capital Lilongwe
Type of Government Multiparty democracy
Life Expectancy at Birth Total population: 52.78 years Male: 51.95 years, Female: 53.62 years (2012 est.)
Literacy Rate

Total population: 74.8% (Male: 81.1% %, Female: 68.5%) (2010 est.)

Religious Groups Christian 82.7%, Muslim 13%, other 1.9%, none 2.5% (1998 census)
Ethnic Groups Chewa 32.6%, Lomwe 17.6%, Yao 13.5%, Ngoni 11.5%, Tumbuka 8.8%, Nyanja 5.8%, Sena 3.6%, Tonga 2.1%, Ngonde 1%, other 3.5%
GDP per capita $900 (2012 est.) 

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2010.

Back to Top

International Rankings

Ranking Body Rank Ranking Scale 
(best – worst possible)
UN Human Development Index 173 (2015) 1 – 187
World Bank Rule of Law Index 45.7 (2014) 100 – 0
World Bank Voice & Accountability Index 44.8 (2014) 100 – 0
Transparency International 112 (2015) 1 – 175
Freedom House: Freedom in the World Status: Partly Free
Political Rights: 3
Civil Liberties: 3 (2016)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index
45 (2015) 177 – 1

Back to Top

Legal Snapshot

International and Regional Human Rights Agreements

Key International Agreements Ratification* Year
International Covenant on Civil and Political Rights (ICCPR) Yes 1993
Optional Protocol to ICCPR (ICCPR-OP1) Yes 1996
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Yes 1993
Optional Protocol to ICESCR (OP-ICESCR) No ---
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Yes 1996
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Yes 1987
Optional Protocol to the Convention on the Elimination of Discrimination Against Women (OP-CEDAW) Yes  2000
Convention on the Rights of the Child (CRC) Yes 1991
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) Yes ---
Convention on the Rights of Persons with Disabilities (CRPD) Yes 2009
Regional Treaties    
African Charter on Human and People's Rights (ACHPR) Yes 1990
African Charter on the Rights and Welfare of the Child Yes 1999

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

The major constitutional framework guiding civil society, including rights such as the freedom of association, expression and assembly, is the Republic of Malawi Constitution.  Chapter III, Section 12 of the Constitution provides the following as some of its core 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 (S12 (i))
  2. The inherent dignity and worth of each human being requires that the State and all persons shall recognize 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 (S12 (iv)).
  3. 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 (S12 (v)).
  4. 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 (S12 (vi).

Specifically, Chapter IV of the Constitution contains a Bill of Human Rights that relates to civil society. For example, freedom of association is enshrined in the Constitution under Section 32, which reads: (1) Every person shall have the right to freedom of association, which shall include the freedom to form associations; and (2) no person may be compelled to belong to an association.

Freedom of conscience is under Section 33 and reads: "Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom."

Freedom of opinion is under Section 34 and reads: "Every person shall have the right to freedom of opinion, including the right to hold opinions without interference to hold, receive and impart opinions."

Freedom of expression is under 35 and reads: "Every person shall have the right to freedom of expression."

Freedom of the press is under Section 36 and reads: "The press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.”

Access to information is under Section 37 and reads: "Subject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights."

Freedom of assembly is under 38 and reads "Every person shall have the right to assemble and demonstrate with others peacefully and unarmed."

Other constitutional provisions that relate to civil society include Access to justice and legal remedies; Arrest, detention and fair trial; Administrative justice; Privacy; Equality; Protection of human rights and freedoms; and the right to life.

National Laws and Regulations Affecting Sector

There are several laws and regulations that affect the operations of the civil society. The key laws and regulations include:

Trustees Incorporation Act of 1962

The Trustees Incorporation Act is the major regulatory law guiding the operations of civil society, foundations, and charitable organizations that operate as a trust. This law, in principle, guides the operations of all entities that are not-for-profit.

Companies Act 2000

The Companies Act regulates companies that focus on profit-making. It places the obligation on the company to declare profit returns as an accountability mechanism. However, some NGOs are operating under this law. During the rule of the late former President, Prof. Bingu wa Mutharika, debate arose around whether NGOs can be registered and operate under the Companies Act, since they are not-for-profit organizations. The general consensus among lawyers is that NGOs are free to register either under the Company Act or Trustees Incorporation Act, provided that they operate within the confines of the law.

NGO Act of 2000

Whether an organization is registered under the Trustees Incorporation Act or Companies Act, it is obligatory that all NGOs register under the NGO Act for them to legally operate in Malawi. Thus, the NGO Act of 2000 seeks to: provide for the rights and obligations of Non-Governmental Organizations in Malawi; promote the development and values of strong independent civil society; provide for the establishment, functions and powers of the Non-Governmental Organizations (NGO) Board of Malawi and the rights of the public to access information with respect to registered organizations; and to provide for matters incidental thereto or connected therewith. 

The said Act applies to all NGOs within Malawi which fulfill the following conditions:

a) it has written constitution or governing instrument; 
b) it is not established, administered or controlled directly or indirectly by the Government of Malawi, or any other Government; 
c) it applies all its funds and resources for public benefit purposed only; 
d) it does not transfer or distribute, whether directly or indirectly, any benefit to its members, donors, trustees, directors or other officers, or their associates or next of kin, except if such benefits represent:- 
(i) reasonable remuneration for services actually rendered; or 
(ii) benefits conferred, without favour or discrimination, by reason of the beneficiary being part of an eligible group or category entitled to benefit in accordance with the public purpose of the organization concerned; 
e) it is not for private profit or gain for the persons controlling or managing the affairs of the NGO without prejudice to the rights and privileges of employees; 
f) it is managed or controlled by a committee, Board or Trust; 
g) it serves all eligible people, regardless of age, gender, tribe, race, religion, creed, sex, political affiliation, nationality, disability or being a member of a minority group; 
h) it is not a church or religion organization of a purely evangelistic or proselytizing nature;  and
(i) it is not a political party, trade union or a social club created to pursue the pleasures of its members.

However, Section 5 of the NGO Act states that subject to the provisions of Section 20 (2), the Act shall not be applicable to an organization which is:

a) informal, and does not have a written constitution; 
b) excluded so that it belongs to a category of organizations deemed not to fall within the ambit of this Act; 
c) established, administered or controlled by or on behalf of the Malawi Government or other Government; or 
d) specially exempted, so that the Board has determined in its discretion that such organization is to be exempted from all or some of the requirements of this Act.

Police (Amendment) Act of 2010

The revised Police Act of 2010 gives the police the powers to undertake search without court warrant. This means that they can willfully invade NGOs offices or the houses of human rights defenders on flimsy grounds, and this might violate the right to privacy. In addition, such a law may compromise the security and independence in the operations of NGOs. During the reigns of the former President, Prof. Bingu wa Mutharika, the police used the new Act in 2011 to harass the former Chairperson of the Malawi Human Rights Commission, Mr. John Kapito who is also the Executive Director for Consumer Association of Malawi (CAMA).

Malawi Revenue Authority (MRA) Act of 1998

The Malawi Revenue Authority Act regulates the operations of the MRA as the government’s revenue collection agency.  The Act further provides exemption from duties up to a given threshold for NGOs with approval from CONGOMA. Under the Act, the Minister of Finance has powers to put a tax waiver on goods and service and NGOs can apply for a waiver. However, in practice, it is very difficult for NGOs to be granted a tax waiver since they are usually perceived to be anti-government by any government of the day. This means that, as non-profit making institutions, NGOs are overburdened with taxes which limit their contribution to national development.

Taxation Act

The Taxation Act regulates taxes in Malawi on goods and services and classifies goods that are exempt from taxes. As a general matter, NGOs are subject to taxation; NGOs evading tax may be charged under the Taxation Act. An exception is made for charitable organizations, such as churches. In addition, the NGO Act provides for a tax waiver to NGOs through CONGOMA,subject to approval by the Minister of Finance.

Pending NGO Legislative / Regulatory Initiatives

1. In 2014, the NGO Board threatened to close all NGOs that were not registered with the Board despite the fact that the current NGO Act of 2000 does not give the Board the powers to close an NGO. The Board only has the power to file for the dissolution of an NGO with the courts, which would then determine the validity of the order in line with the principles of justice. According to members of civil society knowledgeable about the government's plans in 2014, the new NGO Act would have allowed the intelligence service to monitor NGO operations and keep NGOs under a state of constant surveillance and would have allowed the President's office to review any request to carry out research in the country. The President, however, said the purpose of the new Act was to "improve internal NGO governance," "prevent [NGOs] from being used by politicians," "strengthen the compliance monitoring capacity of the NGO Board," and "ensure more capacity building of NGOs."

In 2016, the Government of Malawi, through the NGO Board, commenced the review of the NGO Act and an NGO Policy. The review was received with mixed reactions, following statements from the Minister of Gender, Children, Disability and Social Welfare that urged the NGO Board to close NGOs that are not accountable, which was construed as targeting NGOs that are critical of the current government. As the NGO Policy has been developed, some NGOs feel they have been sidelined, and they are not clear about what it is intended to regulate. The NGO Policy's stated purpose, however, is to operationalize the NGO Act and resolve situations where both the government and NGOs have had conflicting concerns. For example, the government has taken issue with NGO efforts dealing with rights issues or advocacy of themes that do not resonate well with predominant "local beliefs".  In addition, there are concerns that NGOs mostly emphasize the promotion of human rights at the expense of duties or responsibilities. The fear of government is that some NGOs may advance views and agendas of foreign donors, which may not be a priority issue to the country, or may not be in conformity with existing norms. One solution is, however, to create greater partnerships between international and national NGOs on such issues.

2. In addition, the Government of Malawi has been developing a new Access to Information Law. While the original draft Law proposed the creation of an Independent Public Information Commission, media now reports that the latest draft has removed or altered provisions that provided for the Commission. As a result, the media demanded that Parliament reject the draft Law. In addition, the Malawi Human Rights Commission has stated that the establishment of the Independent Public Information Commission is key to the promotion and protection of the right to information and freedom of expression in Malawi. Nonetheless, on February 12, 2016, the Cabinet of Ministers approved the Law, after which it was sent to the 193-member unicameral National Assembly for debate and a vote through the body's Legal and Constitutional Affairs Committee.

Please help keep us informed; if you are aware of pending initiatives, write to ICNL at ngomonitor@icnl.org

Back to Top

Legal Analysis

Organizational Forms

In Malawi, not-for-profit organizations may be registered as Community-Based Organizations (CBOs)or Non-governmental Organizations (NGOs).

CBOs exist and operate at the local community level (usually a village and its surrounding villages). CBOs are registered with (and can be de-registered by) the Ministry of Gender, Women and Child Development through the Social Welfare Department. Once registered, they can open a bank account. CBOs can be either religion-based or independent of any religion. There are thousands of CBOs operating in hundreds of villages and communities across the country.

NGOs implement activities on a much larger scale, from the community level to the regional or national level. An NGO must have a Board of Trustees (in the case of those registered under the Trustees Incorporation Act) or a Board of Directors (in the case of those registered under the Companies Act). Like CBOs, NGOs can also be either religion-based (i.e., FBOs) or independent of any religion.  NGOs may be registered by the Registrar General under either the Trustees Incorporation Act or Companies Act. But for them to gain the benefits of NGO status, they must proceed to register also with the Council for Non-Governmental Organizations (CONGOMA) as well as with the NGO Board of Malawi under the NGO Act.

According to the Section 21(2) of the NGO Act, a certificate of registration shall constitute proof that the NGO concerned is (a) body corporate and separate from its members, with perpetual succession; (b) can engage in public interest activities and public fund-raising throughout Malawi; and (c) is eligible for such fiscal or other benefits and privileges, as may be applicable to registered NGOs from time to time.

While a group of registered CBOs can form a loose network focused on particular cause(s), NGOs can form not only loose networks but also a coalition focused on particular cause(s) which can be duly registered with the Registrar General and accredited by CONGOMA. 

According to statistics of the NGO Board of Malawi, the country has 260 NGOs registered with the Board. As for CONGOMA, there are about 510 registered NGOs in Malawi cutting across all the sectors of development. The reason for variation in the numbers between CONGOMA and the NGO Board is that the NGO Board has just been operational for the last two years and had lacked visibility so many NGOs have not yet registered with it. CONGOMA has retained its ability to coordinate NGOs in Malawi.

Public Benefit Status

According to Section 2 of the NGO Act, "public benefit purposes" means “organizational purposes involving developmental and charitable purposes including but not limited to, educational, health, welfare, advocacy, cultural, civic, social, recreational, scientific, environmental, or other similar objects for the benefit of the general public, a section thereof or members of the organization but excluding involving the activities of a church or religion, trade union, employers organization or political party.”

According to Section 33 of the NGO Act, “Every NGO registered under this Act, including an exempt organization which is registered, may solicit and accept funds and contributions and engage in public fundraising for the furtherance of its public benefit purposes as it may deem appropriate, subject to compliance with the reporting requirements prescribed under this Act, or any other written law.”

NGOs registered with the Registrar General under either the Trustees Incorporation Act or Companies Act and with the Council for Non-Governmental Organizations (CONGOMA) and the NGO Board of Malawi under the NGO Act may receive the benefits of public benefit status under Sections 2 and 33 of the NGO Act.

Barriers to Entry

National NGOs
The involvement of the Minister of Justice as the authority to incorporate an organization under the Trustees Incorporation Act of 1962 has the potential to politicize the registration process insofar as the government may decline the certification of NGOs perceived to advance an agenda that is contrary to the Minister’s liking or beliefs. As an example, the former Minister of Justice, Hon. Henry Phoya, refused to register the Association for Secular Humanism (ASH) in 2013 because the views of the Association conflicted with the Minister’s religious beliefs. The Association was later registered after a new Minister was appointed. Thus, the registration of NGOs is subject to the views and prejudices of the ministerial decision-maker.

Section 20(3)(a)(iv) of the NGO Act also requires the approval of the Ministry responsible for the activities to be undertaken by the NGO in the form of a memorandum of understanding (MoU) or other agreement between the Ministry and the NGO. The problem with this requirement is that some of the activities that an NGO implements may be impromptu. For example, an advocacy campaign for academic freedom in the university may not have been planned in advance but may have been necessitated by events such as a students’ demonstration. Such unforeseen activities cannot therefore be expected to be part of the agreement or MoU as part of the registration process.

NGOs are required to pay 55,000 Malawi Kwacha (MK) to CONGOMA as annual fees (about $130 at the exchange rate of $1=MK 400). Thereafter, the NGO Act requires NGOs to pay the NGO Board 35,000 MK (about $88) as registration fees and another 35,000 MK (about $88) as annual fees irrespective of whether the NGO received funding or not. These fees do not take into account the size and growth of an NGO but are rather applied universally. The amount of the fees is not prescribed by law; instead, the law mandates both the NGO Board and CONGOMA to set fees as may be deemed appropriate, subject to review from time to time.

International nongovernmental organizations (INGOs) pay 1,200 MK (about $300) as annual fees. INGOs also pay 128,000 MK (an equivalent of $320) per annum to CONGOMA. For the NGO Board, INGOs pay MK120,000 (an equivalent of $300) for registration and 105,000 MK (equivalent of $ 263) for annual subscriptions.

This two-tiered registration system in the NGO Act (NGO Board and CONGOMA) imposes a burden on newly formed NGOs to raise money to register with both entities as required by the law. In addition, NGOs are mandated to submit audit accounts during registration to the NGO Board irrespective of whether they have received funding from donors or not, or implemented a project or not. NGOs are not only supposed to register with CONGOMA by paying registration fees and subsequently annual fees as pre-condition for them to register with the NGO Board.

There are also provisions in the law that prohibit the formation and operation of “unregistered groups.” Potential sanctions include fines, subject to court determination. Section 23(1) of the NGO Act provides that the Board may order the Registrar to cancel or suspend the registration of an NGO if it is satisfied that the NGO (a) has ceased to exist or function for the purposes for which it was constituted; (b) has failed or refused to comply with the provisions of this Act; or (c) has been engaged in partisan politics. Section 23(2) of the NGO Act provides that the NGO Coordinating body – in this case CONGOMA – may, where it has good and valid reasons, also make recommendations to the Board for cancellation or suspension of the registration of an NGO.

Section 20(3)(a) of the NGO Act 2000 provides that an application for registration shall be in a prescribed form and accompanied by:

  1. A certified copy of the constitution of the NGO;
  2. Such registration fees as may be prescribed by the Board from time to time (the current fee is MK35, 000 for local NGOs, and MK120, 000 for foreign NGOs);
  3. A plan of the activities which the NGO intends to undertake;
  4. approval from the Ministry responsible for the activities to be undertaken by the NGO in the form of a memorandum of understanding or any other agreement between the Ministry and the NGO;
  5. Proof that the NGO is a member of CONGOMA;
  6. A statement that the NGO shall not engage in partisan politics including electioneering and politicking; and
  7. the source of funding for the NGO.

In addition, Section 3(b) stipulates that the application form shall contain the following particulars of the NGO concerned –

    1. Name of the NGO; (ii) physical and postal address; (iii) telephone, facsimile and telex numbers where applicable; (iv) the full names, addresses, occupations and nationalities of all Trustees, Directors and other executive Board members;
  1. The name and address of the NGO's auditors, who are acceptable to the Board;
  2. The latest available audited annual financial statements and annual report, in respect of existing NGOs.

The NGO Act under Section 23(3) gives the Board the powers to order the cancelling or suspending of the registration of an NGO. However, Section 23(4) gives any aggrieved NGO the ability to challenge the decision of the Board by applying to the High Court for judicial review. The problem is that some NGOs mightnot know how to apply to the courts for judicial review.

For CBOs, the Ministry’s guidelines provide that the founders should come from the community where the members in the CBO exist, and may consist of a chief, a community social worker, and ordinary citizens. However, according to Section 20(2) of the NGO Act,no NGO shall be registered under the Act unless a minimum of two of its directors or trustees, as the case may be, are citizens of Malawi. 

Foreign NGOs

The NGO Act does not contain special rules or restrictions applicable to the registration or incorporation of foreign NGOs, except that all NGOs registered under the Board must ensure that at least two of its trustees or directors are Malawians. However, as noted above, foreign NGOs have their own category of fees even though this is not documented in the Act.

In February 2014, the NGO Board refused the application of Rising Malawi, a foreign trust established by Madonna, for registration in Malawi. It was alleged that the refusal was politically motivated, as Madonna has differences with the incumbent President.

Barriers to Operational Activity

Section 23 of the NGO Act gives powers to the NGO Board to cancel or suspend registration of an NGO on various grounds including engagement in partisan politics. For instance, Section 23 (1) states that the Board may order the Registrar to cancel or suspend the registration of an NGO if it is satisfied that the NGO - 

a) has ceased to exist or function for the purposes for which it was constituted; or 
b) has failed or refused to comply with the provisions of this Act. 
c) has been engaged in partisan politics including electioneering and politicking.

Further, Section 23 (2) stipulates that the NGO co-ordinating body may, where it has good and valid reasons, make recommendations to the Board for cancellation or suspension of the registration of an NGO. In line with subsections (1) and (2), Section 23 (3) states that an order cancelling or suspending the registration of an NGO under subsection (1) shall be issued, unless:

a) the NGO concerned has been given at least thirty days prior written notice, sent to its last known address; of the Board's intention to impose such sanction; and 
b) the NGO has been an opportunity to be heard either verbally or in writing as the Board may determine. 

However, the same law provides for remedy to aggrieved parties with respect to the decision of the Board to either cancel or suspend the registration of an NGO. Section 23(4) states that any NGO aggrieved by a decision of the Board made under this section may apply to the High Court for judicial review. 

Notwithstanding the above, the NGO Act under Section 4(b) stipulates that the provisions of the Act shall apply to an NGO within Malawi which, among other things, is not established, administered or controlled directly or indirectly by the Government of Malawi, or any other Government.

It is important to note that Section 3(a)(iv) provides that an application for registration shall be accompanied by approval from the Ministry responsible for the activities to be undertaken by the NGO in the form of a memorandum of understanding or any other agreement between the Ministry and the NGO.  This could be interpreted to mean that advance approval is required for NGOs to carry out a project activity.

The question of whether the current reporting requirements are burdensome or uncomplicated may be subjective as it depends on the capacity of NGOs, which varies from one to another. However, Section 22(1) of the NGO Act outlines periodic reporting requirements for NGOs. Section 22(1) states that “Every registered NGO shall file with the Registrar's office the following documents and information which shall be part of the Registry accessible to the public”,

(a) On an annual basis, and by such date as may be prescribed -

  1. its audited annual financial statements
  2. its annual report outlining the activities undertaken by the NGO in the year and such other information as may be prescribed;
  3. an annual return reflecting details of its trustees, directors, office bearers, auditors and such other information as may be prescribed; and
  4. its source of funding

(b) In the event of any amendment to its constitution or government instrument, a certified copy of such amendment, within sixty days of such amendment being adopted; and
(c) any such further documentation or information regarding the officers and activities of a registered NGO which the Board may require.

Although the NGO Board has not de-registered any NGO since its inception, the Board threatened to close NGOs that did not register by June 30, 2013.  At that time, the NGO Board said it would invoke Section 18 and subsequent sections, which empower the Board to discipline and close an NGO subject to a court order, if they were not registered by June 30 in a publication made in The Nation newspaper. Although the Board did not follow through with this threat, many people have questioned the timing of it for June 30. Considering that most NGOs are already registered with other authorities such as the Registrar General and CONGOMA and that the status quo has remained as such for over ten years since the NGO law was enacted, they therefore saw this threat as suspicious coming barely one year before the national elections scheduled for the second half of 2014. Such suspicions were reaffirmed in early 2014, when the NGO Board threatened to close all NGOs that are not registered with the Board.

During the last Democratic Progressive Party (DPP) regime, government harassment of NGOs was the order of the day.  The situation has significantly improved during the one-year rule of the Peoples Party (PP) Government. However, in some instances the President has directly attacked the media for allegedly working against the government. In the same vein, government officials, especially Ministers, have questioned the intentions of some NGOs, thereby raising speculation about possible physical attacks.

In almost all cases of threats and violence, the government has failed to provide adequate protection to NGO representatives, especially if such individuals are deemed critical of the government policies. The threats directed at human rights defenders prior to and after the July 20, 2011 demonstrations over the high cost of living and poor public services that exist as a result of bad governance, corruption, lack of state accountability, are classic examples of how the government did nothing to protect civil society. During the same period, some NGO leaders had their offices and house set on fire while some had their vehicles destroyed. There were also cases where NGO leaders had to go in hiding for fear of their lives without protection or support from the State. In several cases, even with clear knowledge of the perpetrators, the police did not apprehend them.

The situation has not changed over the years. In 2016, the administration accused prominent human rights activists of committing treason, with claims that activists have been organizing meetings with foreign diplomats in an attempt to push for regime change. While the claims lack substance, the administration has called on the activists to exonerate themselves of their alleged crime. However, the general public understands that the government’s claims are meant to frighten activists from fulfilling their watchdog role. In particular, NGOs have raised concerns with serious economic turmoil following the plundering of public resources, which led to the suspension of budget support by donors. At present, inflation hovers around 27% in a country where 75% of Malawians live on a less than a dollar per day, and 85% of Malawians live in rural areas.

The government does not generally establish its own NGOs, although there has been a tradition in Malawi that the President and the First Lady establish charities, which at times have been perceived as forms of government-run NGOs. Such charities have not been accountable because of their association with the office of the President.

Barriers to Speech / Advocacy

There are many issues that arise in the Penal Code with respect to freedom of expression. Although section 35 of the Constitution guarantees the right to freedom of expression, the penal code has offences that in practice create undue censorship of speech, in particular the offence of “sedition.” Most countries have, however, repealed other similar kinds of offences.

Sections 50 and 51 of the Penal Code, which establish the offence of sedition, state that:

A “seditious intention” is an intention –

(a) To bring into hatred or contempt or excite disaffection against the person of the President, or the Government;
(b) To excite the subjects of the President to procure the alteration, otherwise than by lawful means, of any matter in the Republic; or
(c)  To bring into hatred or contempt or to excite disaffection against the administration of justice in the Republic; or
(d)  To raise discontent or disaffection amongst the subjects of the President; or
(e)  To promote feeling of ill-will and hostility between different classes of the population of the Republic.

But an act, speech or publication is not seditious by reason only that it intends-

(i) To show that the President has been misled or mistaken in any of his measures; or
(ii) To point out errors or defects in the Government or Constitution or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or
(iii) To persuade the subjects of the President to attempt to procure by lawful means the alteration of any matter in the Republic; or
(iv) To point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of the Republic.

Section 51(1) then states that:

“Any person who-

(a) does or attempts to do, or makes any preparation to do an act with a seditious intention;
(b) utters any seditious words;
(c)  prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
(d)  imports any seditious publication, unless he has no reason to believe that it is seditious;

shall be liable for a first offence to a fine of ₤400 and to imprisonment for five years and for a subsequent offence to imprisonment for seven years; and any seditious publication shall be forfeited.”

In practice, the government also restricts access to public broadcasting for opposition parties and NGOs perceived to hold views similar to the opposition, or the ruling party dominates the airtime on the public broadcaster, which in effect undermines the freedom of expression and advocacy for others. This is particularly the case during election season.

In addition, the government has demonized NGOs that it perceives as speaking out against the government's interests, such as the NGOs that campaigned for the refund of funds that the government granted to the Beautify Malawi Trust [BEAM], which is owned by the First Lady and Mulhako wa Lomwe (a group whose patron is the President). The BEAM Chairperson, who is also the Presidential Chief Economic Advisor, said these NGO leaders were "advancing the cause of greedy leaders who are used by politicians to score their political mileage." The Presidential Advisor on NGOs also labelled the NGO leaders as being "unpatriotic." Such remarks have the potential to ignite animosity against the concerned NGO leaders and deter them from exercising their right to free speech. Some of the NGO leaders, for example, have received anonymous calls warning them against criticism of BEAM.

The government has also reacted strongly against NGOs that champion minority rights, such as same-sex marriages. Some politicians have called them "worse than dogs" and have urged Malawians to kill them. The Public Secretary of the former government was arrested for inciting violence against the activists, although the case was withdrawn by the Office of the Director of Public Prosecution.

Barriers to International Contact

There are no laws or administrative practices that pose a threat to international contact. However, the State attempted to restrict the movement of the Chairperson of the Malawi Human Right Commission to travel to Geneva in early 2012. The restriction was based on the misconception that he was going to report to the Human Rights Commission about the Malawi Government’s human rights abuses. In addition, there are subtle provisions in the Immigration Act that may constitute a barrier to international contact, whereby certain categories of people would be restricted to enter or leave Malawi on account of their sexual orientation.

Barriers to Resources

There have been no laws or administrative practices to restrict the receipt of resources, at least since the repeal of the Forfeiture Act in 1994. Under that Act, people were arbitrarily deprived of their property and the state was at liberty to seize property for various offenses.

However, the NGO Board of Malawi issued a statement in February 2015 (during the period when Malawi suffered from devastating floods) that directed all NGOs providing services to flood victims to work through government structures. The statement also appealed to donors to support only NGOs that are registered with the NGO Board, arguing that there is mushrooming of unscrupulous NGOs working in disaster assistance. If the NGO Board were to enforce compliance with this statement, it would impede the ability of NGOs to receive support for disaster assistance. The NGO Board’s statement could also foreshadow more restrictive initiatives affecting NGOs in the future.

Barriers to Assembly

Legal Protections and Accessibility
There is no specific legislation, per se, on assembly or public gatherings, but there are governing provisions in the Police Act 2009. Among other issues, the Police Act 2009 make provisions for the regulation of public order in relation to public assemblies, processions and demonstrations and football matches.   However, the law is not easily accessible and understandable by the public as it is not available online or other public places like public libraries. The official website for the Malawi Parliament, for example, which has a list of some downloadable enacted laws, does not include the Police Act.  This makes it difficult for the public not only to access the law, but also to understand the law. Furthermore, this situation heightens the already prevailing public misconceptions with regards to the regulation of public assemblies or gatherings.

Vague Provisions
Section 107(2) of the Police Act provides that “a person shall be deemed to be acting in lawful authority if he is acting in his capacity as a police officer or a member of the Defense Force of Malawi deployed to assist the police in the particular instance or as a member of a fire brigade.”

To say that “a person shall be deemed to be acting in lawful authority” simply because he is “acting in his capacity as a police officer” without having to further define what is a “lawful act” provides excessive discretion for the Government or the police officer, Defense Force member or fire brigade officer to abuse his/her authority, especially in the case of protests and demonstrations.

Advance Notification
Section 96 (I) of the Police Act stipulates that the convener shall give notice, in writing, of not less than 48 hours and not more than 14 days to the District Commissioner concerned with a copy to the officer in charge of the police station concerned. However, Article 96(7)(1) also states that if notice is given less than 48 hours before the date on which the assembly or demonstration is to be held, the convener/organizer must provide the reason justifying why it was not given timely.

Section 96(2) says the District Commissioner shall stamp every notice received under subsection (1) with his official stamp, and shall indicate the date and the time the notice was received by him. In addition, Section 98(1) states that if the District Commissioner receives notice in accordance with section 96 or other information regarding a proposed assembly or demonstration comes to his attention, he shall forthwith consult with the officer in-charge of police concerned regarding the necessity. It is, however, important to note that the law does not specify the exact timeframe (nor define the term ‘forthwith’) within which the District Commissioner consults with the officer in-charge of police concerned, or within which he notifies “the convener according” if he is of the opinion that negotiations are not necessary.

The law does not provide an exception for spontaneous demonstrations. As for counter-demonstrations, Section 99(1) of the police Act mandates “the District Commissioner to, if there are reasonable grounds, of his own accord or at the request of the officer in-charge of police, refuse a request for the assembly or a demonstration or impose conditions with regard to the holding of the assembly or demonstration to ensure that among other things an appropriate distance is maintained between participants in the assembly or demonstration and a rival or other assembly or demonstration.”

Obligations on Organizers
Section 106 (1) of the Police Act stipulates that if any riot damage occurs as a result of an assembly or a demonstration, every organization on behalf of or under the auspices of which the assembly or demonstration was held, the convener, and every person participating in the assembly or demonstration, as the case may be, shall be liable for that damage as a joint wrongdoer together with any other person who unlawfully caused or contributed to such riot damage.

Time, Place, Manner Restrictions
Section 103 of the Police Act stipulates that all assemblies and demonstrations within the precincts of any building which is being used as Parliament, a State Residence or a court or at an open air place within a radius of one hundred meters from such building are prohibited unless authorized by the Speaker, the President, or the Chief Justice, as the case may be.

Excessive Force
The police have used excessive force to disrupt demonstrations organized by university students and even primary school pupils, as well as vendors. Although the situation might have improved in the new regime after similar nationwide demonstration were held early this year against declining economic governance, the public has however witnessed running battles between Police and primary school pupils in Blantyre. In addition, the state has failed to provide sufficient protection to the organizers and participants in assemblies, mainly those deemed political in nature.

Criminal and Financial Penalties
Section 107(1) of the Police Act states that any person who, while present at or taking part in any assembly or demonstration which takes place in or on a road or street or at any place of public resort, whether such assembly or demonstration has been lawfully convened or not, has with him any weapon otherwise than in pursuance of lawful authority, commits an offence and may be arrested without a warrant and shall, on conviction be liable to a tune of K100,000 and to imprisonment for two years.

Back to Top

Reports

UN Universal Periodic Review Reports Malawi (November 1, 2010)
USIG (United States International Grantmaking) Country Notes

None

U.S. State Department Malawi
Fragile States Index Reports


Foreign Policy: Fragile States Index

IMF Country Reports

Malawi and the IMF (June 25, 2013)

International Commission of Jurists

ICJ submission on Malawi to Human Rights Committee (April 30, 2013)

International Center for Not-for-Profit Law Online Library

Malawi

Back to Top

News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change.  If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

Key Events

  1. On March 19, 2016, the NGO Board organized the technical review team meeting on the development of the NGO Policy.
  2. On April 1, 2016, the Council for Non-Governmental Organizations in Malawi convened regional consultations with civil society to serve as platform to identify policy advocacy issues. The consultative meetings were also aimed at providing platforms for NGOs to reflect and discuss challenge affecting the sector.

General News

Parliament to Consider Access to Information Bill (February 2016)
On February 12, 2016, the Malawi Cabinet approved the Access to Information Bill, which seeks to accord access to public information in the custody of various private and public institutions. The legislation was sent to the 193-member unicameral National Assembly for debate and a vote through the body's Legal and Constitutional Affairs Committee.

Government enacting new Information Law (February 2016)
The Government of Malawi is currently in the process of enacting the new Access to Information Law whose development process started five years ago. While the draft Bill proposed the creation of the Independent Public Information Commission, the media reports indicate that the final consideration of the Bill by the Cabinet has led to the removal or alteration of provisions in the Bill that provided for the establishment of the Independent Public Information Commission.

Need for citizen to use their constitutional rights (February 2016)
The country's Center for Investigative Journalism in Malawi (CIJM) has hinted the need for citizen to use their constitutional rights cautiously by putting trusted individuals into leadership positions in a bid to deter thieves from public funds. The observation comes amid serious dwindling of social-economic services in the country including depreciation of the Malawi Kwacha, rising in inflation rates leading to skyrocketing goods and services prices, lack of food and medical supplies in public hospital and worsening hunger crisis.

Pressure to Reject Information Bill (January 2016)
The media has been awash with demands that Parliament should reject the Information Bill once Government presents it for enactment.

Kaliati rails at Malawi CSOs for not helping flood victims (January 2015)
Minister of Gender, Children, Disability and Social welfare, Patricia Kaliati, has turned her ire on Civil Society Organisations (CSOs) which were on the forefront of January 13 demonstrations for being silent on the flooding situation that has so far taken at least 150 lives in the country. The minister argued that CSOs also have a duty to help the citizens but wondered why they have failed to break the silence in assisting flood victims in the country. In reaction, a CSO's spokesperson, Timothy Mtambo, railed at Kaliati, arguing "We are totally concerned with the situation like in the country in as far as the floods are concerned and we are trying to our level best to help them as we are searching for more donors and other organisations abroad to help us on the matter."

CSOs demand good leadership (January 2015)
CSOs have demanded good leadership and financial prudence by the incumbent administration. This followed the abuse of funds, and the withdrawal of funding from the Global Fund for AIDS. CSOs under the banner of The Grand Coalition for the Defense of Democracy and Good Governance marched and presented a petition to government to swiftly address the issue through its agencies.

Malawi ranks 16th in African Government Index (October 2014)
Despite growing discontent with the current administration in the country, including its measures to restrict to civil society, Malawi's score on the International Index of African Governance (IIAG) increased the most it ever has since 2000, although the score was still below the average in southern Africa. Malawi now ranks 16th in Africa.

Malawi NGOs urged to be transparent (September 2014)
The president has continued to announced that the review of NGO Act is to improve internal governance and make it more responsive to the "needs and realities" of NGOs. Civil society, however, believes the review will lead to "entrenched oppression" and greatly limit the operations of NGOs.

President announces NGO Act to be Reviewed (August 2014)
President Peter Mutharika announced that his government would prioritize the review of Malawi's NGO Act. According to those knowledgable about the goverment's plans, the new NGO Act would allow the intelligence services to monitor NGO operations and the President's office to review any request to carry out research in the country, among other restrictive provisions.i

Voter Education NGOs May Face Backlash from Certain Candidates (May 2014)
Malawi will be holding the Tripartite Elections on May 20, 2014 and a number of NGOs have been accredidated to conduct voter education. The selected NGOs will also be monitoring election during the poling day. As the heat builds up, some of the NGOs are likely to be accused of favouring certain candidates, which might have the impact on the image of NGOs. NGOs have repeatedly urged the Malawi Electoral Commission to timely deal with electoral irregularities, arguing political parties might use that to discredit the results and challenge them.

Malawi NGOs told to register by June 30 or else (July 2013)
Unregistered Non-Governmental Organizations (NGOs) have until June 30, 2013 to get registered with NGO board or else face the law, said the Chairperson of the NGO Board, Emily Banda.  She pointed out that the NGO Board works in the interest of government and the NGO fraternity since NGOs compliment government efforts.  “NGOs should get registered with us so that we move together, we don’t want any casualties,” Banda said. The Chairperson of Operations and Compliance at the board, Kent Mphepo said there is a lot of indiscipline within the NGO sector which needs to be dealt with.  He cited an example of Chitipa, which has 87 NGOs in the records, but only two are operating on the ground.

Back to Top

The foregoing information was collected by the ICNL NGO Law Monitor partner organization in Malawi.