Constitution

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  • Country: Malawi
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CONSTITUTION OF THE REPUBLIC OF MALAWI
ARRANGEMENT OF SECTIONS
Section
CHAPTER I
THE REPUBLIC OF MALAWI
1. Malawi a sovereign state
2. The national flag, etc.
3. The national territory
4. Protection of the people of Malawi under this Constitution
5. Supremacy of this Constitution
6. Universal and equal suffrage
7. The separate status, functions and duty of the executive
8. The separate status, function and duty of the legislature
9. The separate status, function and duty of the judiciary

CHAPTER II
APPLICATION AND INTERPRETATION
10. Application of this Constitution
11. Interpretation

CHAPTER III
FUNDAMENTAL PRINCIPLES
12. Constitutional principles
13. Principles of national policy
14. Application of the principles of national policy

CHAPTER IV
HUMAN RIGHTS
15. Protection of human rights and freedoms
16. The right to life
17. Genocide
18. Liberty
19. Human dignity and personal freedom
20. Equality
21. Privacy
22. Family and marriage
23. Rights of children
24. Rights of women
25. Education
26. Culture and language
27. Slavery, servitude and forced labour
28. Property
29. Economic activity
30. Right to development
31. Labour
32. Freedom of association
33. Religion and belief
34. Freedom of opinion

35. Freedom of expression
36. Freedom of the press
37. Access to information
38. Freedom of assembly
39. Freedom of movement and residence
40. Political rights
41. Access to justice and legal remedies
42. Arrest, detention and fair trial
43. Administrative justice
44. Limitations on rights
45. Derogation and public emergency
46. Enforcement

CHAPTER V
CITIZENSHIP
47. Citizenship

CHAPTER VI
THE LEGISLATURE
48. Parliament
49. Definitions
50. Quorum
51. Qualifications of members of Parliament
52. Oath of allegiance
53. The Speaker
54. Casting vote
55. The Clerk
56. The right to regulate procedure
57. Money Bills
58. Subsidiary legislation
59. Sessions and sittings
60. Privileges and immunities
61. Member’s interests
62. Composition of the National Assembly
63. Vacancies in the National Assembly
64. Recall of members
65. Crossing the floor
66. Functions and powers of the National Assembly
67. Dissolution of Parliament
68. Composition of the Senate
69. Vacancies in the Senate
70. Functions and powers of the Senate
71. Scrutiny by the Senate
72. Dissolution of the Senate
73. Presidential assent
74. The coming into force of laws

CHAPTER VII
ELECTIONS
75. The Electoral Commission
76. Powers and functions
77. The franchise

CHAPTER VIII
THE EXECUTIVE

78. The President
79. The Vice-President
80. Election of the President and the Vice-President
81. Oath of office
82. Remuneration
83. Term of office
84. Death or resignation of the Vice-President
85. Vacancy of office of President and Vice-President
86. Removal from office
87. Incapacity
88. Responsibilities of the President
89. Powers and duties of the President
90. Confirmation of decisions, etc., of the President
91. Immunity
92. Cabinet
93. Government departments
94. Appointment of Ministers and Deputy Ministers
95. Confirmation of appointments of Ministers or Deputy Ministers
96. Duties and functions of the Cabinet
97. Ministerial accountability
98. The Attorney General
99. The Director of Public Prosecutions
100. Delegation of powers to prosecute
101. Appointment of the Director of Public Prosecutions
102. Removal of the Director of Public Prosecutions

CHAPTER IX
THE JUDICATURE

103. The independence and jurisdiction of the courts and the judiciary
104. The Supreme Court
105. Composition of the Supreme Court of Appeal
106. Acting Justices of Appeal
107. Relief from duties
108. The High Court
109. Composition of the High Court
110. Subordinate courts
111. Appointment of the Judiciary
112. Qualification of Judicial officers
113. Vacancy
114. Remuneration
115. Judicial oath
116. The Judicial Service Commission
117. Composition
118. Powers of the Judicial Service Commission
119. Tenure of judges

CHAPTER X
THE OMBUDSMAN
120. The Office of the Ombudsman
121. Independence of the Ombudsman
122. Appointment of the Ombudsman
123. Functions and powers
124. Powers of investigation
125. Privileges and immunities of the Ombudsman

126. Remedies
127. Reports of the Ombudsman
128. Removal from office

CHAPTER XI
HUMAN RIGHTS COMMISSION
129. Establishment of the Human Rights Commission
130. Powers
131. Composition

CHAPTER XII
LAW COMMISSION
132. Establishment of the Law Commission
133. Composition
134. Removal of the Law Commissioner, etc.
135. Powers and functions of the Law Commission
136. Independence of the Law Commission

CHAPTER XIII
NATIONAL COMPENSATION FUND
137. The National Compensation Tribunal
138. Exclusive original jurisdiction
139. Composition
140. Procedure
141. Protection of third party rights
142. Jurisdiction of ordinary courts
143. Power to waive statutory limitations
144. National Compensation Fund
145. Winding up of the National Compensation Fund

CHAPTER XIV
LOCAL GOVERNMENT
146. Functions of local government authorities
147. Composition of local government authorities
148. Jurisdiction of local government authorities
149. National Local Government Finance Committee, its
establishment, powers and functions
150. Duty to provide adequate exercises for local government
functions
151. Composition of the National Local Government Finance
Committee

CHAPTER XV
THE POLICE
152. The Malawi Police Force
153. Powers and functions of the Police
154. The Inspector General of Police
155. The Police Service Commission
156. Power to delegate
157. Composition
158. Political independence of the Malawi Police Force

CHAPTER XVI

THE DEFENCE FORCES
159. The Defence Forces of Malawi
160. Constitutional position of the Defence Forces of Malawi
161. Responsibility for the Defence Forces of Malawi
162. The Defence and Security Committee of the National
Assembly

CHAPTER XVII
PRISONS
163. The Malawi Prison Service
164. The Chief Commissioner for Prisons
165. Power to delegate
166. Appointment of the Chief Commissioner for Prisons
167. The Prison Service Commission
168. Composition of the Prison Service Commission
169. The Inspectorate of Prisons
170. Composition of the Inspectorate of Prisons

CHAPTER XVIII
THE STATE REVENUE
171. Revenue
172. The Consolidated Fund
173. Withdrawal of money from the Consolidated Fund
174. Expenditure charged on the Consolidated Fund
175. Annual estimates
176. Appropriation Bills
177. Supplementary appropriations
178. Authorization of expenditure in advance of appropriation
179. Contingency Fund
180. Raising of loans by the Government
181. Special funds and trust moneys
182. The Development Fund
183. Protected expenditure
184. Auditor General

CHAPTER XIX
THE RESERVE BANK OF MALAWI
185. The Reserve Bank of Malawi

CHAPTER XX
CIVIL SERVICE
186. The Civil Service Commission
187. Powers of the Civil Service Commission
188. Delegation
189. Offices to which this Chapter does not apply
190. The appointment of Diplomatic staff
191. Appointment of members of the Civil Service Commission
192. Vacancy
193. Independence of the Civil Service
194. Appointments of boards, etc., and appointment and removal
of public officers

CHAPTER XXI
AMENDMENT OF THIS CONSTITUTION

195. Power to amend
196. Restrictions on amendments
197. Amendments by Parliament

CHAPTER XXII
TRANSITIONAL PROVISIONS
198. Republic, etc. to be constituted in accordance with this
Constitution
199. Status of this Constitution
100. Saving of laws in force
201. Elections to the National Assembly
202. Elections to the office of President
203. Saving of judicial power
204. Pending legal actions
205. Judgements and sentences pending execution
206. Existing appointments
207. Vesting of lands, etc., in the Republic
208. Savings of rights of the Government in property
209. Continuation of rights of persons in property
210. Constitutional position pending establishment of the Senate
211. International law

CHAPTER XXIII
MISCELLANEOUS
212. Commencement of this Constitution
213. Short title of this Constitution
214. Definition

Schedule CONSTITUTION OF THE REPUBLIC OF MALAWI
THE PEOPLE OF MALAWI–
recognizing the sanctity of human life and the unity of all mankind;
guided by their private conscien ces and collective wisdom;
seeking to guarantee the welfare and devel opment of all the people of Malawi, national
harmony and peaceful inte rnational relations;
desirous of creating a constitutional order in the Republic of Malawi based on the need
for an open, democratic and accountable government:
HEREBY adopt the following as the Constitution of the Republic of Malawi.
CHAPTER I
THE REPUBLIC OF MALAWI
Malawi a sovereign state
1. The Republic of Malawi is a sovereign St ate with rights and obligations under the Law
of Nations.
The national flag, etc.

2. Malawi shall have a National Flag, a National Coat of Arms, a National Anthem and a
Public Seal.
The national territory
3. The national territory of the Republic of Malawi shall consist of all the territory,
including airspace, waters and islands which co mprised the territory of Malawi before the
commencement of this Constitution, and shall include any territory lawfully acquired
thereafter by adjustment of boundaries or otherwise.
Protection of the people of Malawi under this Constitution
4. This Constitution shall bind all executive, legi slative and judicial organs of the State at
all levels of Government and all the peoples of Malawi are entitled to the equal protection
of this Constitution, and laws made under it.
Supremacy of this Constitution
5. Any act of Government or any law that is inconsistent with the provisions of this
Constitution shall, to the extent of such inconsistency, be invalid.
Universal and equal suffrage
6. Save as otherwise provided in this Cons titution, the authority to govern derives from
the people of Malawi as expr essed through universal and equa l suffrage in elections held
in accordance with this Constitution in a manne r prescribed by an Act of Parliament.
The separate status, function and duty of the executive
7. The executive shall be responsible for the initiation of policies and legislation and for
the implementation of all laws which embody th e express wishes of the people of Malawi
and which promote the principles of this Constitution.
The separate status, function and duty of the legislature
8. The legislature when enacting laws shall refl ect in its deliberations the interests of all
the people of Malawi and shall further the valu es explicit or implicit in this Constitution.
The separate status, function and duty of the judiciary
9. The judiciary shall have the responsibility of interpreting, protecting and enforcing this
Constitution and all laws in accordance with this Constitution in an independent and
impartial manner with regard only to legally re levant facts and the prescriptions of law.
CHAPTER II

APPLICATION AND INTERPRETATION
Application of this Constitution
10.–(1) In the interpretation of all laws and in the resolution of political disputes the
provisions of this Constitution shall be re garded as the supreme arbiter and ultimate
source of authority.
(2) In the application and form ulation of any Act of Parliament and in the application and
development of the common law and customary law, the relevant organs of State shall
have due regard to the principles and provisions of this Constitution.
Interpretation
11.–(1) Appropriate principles of interpretati on of this Constitution shall be developed
and employed by the courts to reflect the un ique character and supreme status of this
Constitution.
(2) In interpreting the provisions of this Constitution a court of law shall–
(a) promote the values which underlie an open and democratic society;
(b) take full account of the provisions of Chapter III and Chapter IV; and
(c) where applicable, have regard to current norms of public in ternational law and
comparable foreign case law.
(3) Where a court of law declares an act of executive or a law to be invalid, that court
may apply such interpretation of that act or law as is consistent with this Constitution.
(4) Any law that ousts or purports to oust the jurisdiction of the courts to entertain matters
pertaining to this Constitution shall be invalid.
CHAPTER III
FUNDAMENTAL PRINCIPLES
Constitutional principles
12. This Constitution is founded upon the following underlying principles–
(i) 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 se rve and protect their
interests.

(ii) All persons responsible for the exercise of powers of State do so on trust and shall
only exercise such power to the extent of th eir lawful authority and in accordance with
their responsibilities to the people of Malawi.
(iii) The authority to exercise power of Stat e 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.
(iv) The inherent dignity and worth of each human being requires that the State and all
persons shall recognize and protect fundame ntal human rights and afford the fullest
protection to the rights and view s of all individuals, groups and minorities whether or not
they are entitled to vote.
(v) 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.
(vi) All institutions and persons shall obser ve and uphold the Constitution and the rule of
law and no institution or person shall stand above the law.
Principles of national policy
13. The State shall actively promote the welfare and development of the people of
Malawi by progressively adopting and implem enting policies and legislation aimed at
achieving the following goals–
(a) Gender Equality To obtain gender e quality for women with men through–
(i) full participation of women in all spheres of Malawians society on the basis of
equality with men;
(ii) the implementation of the principles of non-discrimination and such other measures
as may be required; and
(iii) the implementation of policies to addre ss social issues such as domestic violence,
security of the person, lack of maternity benefits, economic exploitation and rights to
property.
(b) Nutrition To achieve adequate nutrition for all in order to promote good health and
self-sufficiency.
(c) Health
To provide adequate health care, commensu rate with the health needs of Malawian
society and international st andards of health care.

(d) The Environment
To manage the environment responsibly in order to–
(i) prevent the degradation of the environment;
(ii) provide a healthy living and working environment for the people of Malawi;
(iii) accord full recognition to the rights of future generations by means of environmental
protection and the sustainable develo pment of natural resources; and
(iv) conserve and enhance the biological diversity of Malawi.
(e) Rural Life
To enhance the quality of life in rural co mmunities and to recognize rural standards of
living as a key indicator of the success of Government policies.
(f) Education
To provide adequate resources to the educat ion sector and devise programmes in order
to–
(i) eliminate illiteracy in Malawi;
(ii) make primary education compulsory and free to all citizens of Malawi;
(iii) offer greater access to higher learning and continuing education; and
(iv) promote national goals such as unity and the elimination of political, religious, racial
and ethnic intolerance.
(g) The Disabled
To support the disabled through–
(i) greater access to public places;
(ii) fair opportunities in employment; and
(iii) the fullest possible participation in all spheres of Malawian society.
(h) Children
To encourage and promote conditions conduc ive to the full development of healthy,
productive and responsible members of society.

(i) The Family
To recognize and protect the family as a fundamental and vital social unit.
(j) The Elderly
To respect and support the elderly through th e provision of community services and to
encourage participation in the life of the community.
(k) International Relations
To govern in accordance with the law of nati ons and the rule law and actively support the
further development thereof in regi onal and international affairs.
(l) Peaceful Settlement of Disputes To stri ve to adopt mechanisms by which differences
are settled through negotiation, good offices, me diation, conciliation and arbitration.
(m) Administration of Justice To promote law and order and respect for society through
civic education, by honest prac tices in Government, adequate resourcing, and the humane
application and enforcement of laws and policing standards.
(n) Economic Management To achieve a se nsible balance between the creation and
distribution of wealth thr ough the nurturing of a market economy and long- term
investment in health, edu cation, economic and social development programmes.
(o) Public Trust and Good Governance
To introduce measures which will guaran tee accountability transparency, personal
integrity and financial probity and which by virt ue of their effectiveness and transparency
will strengthen confidence in public institutions.
Application of the principles of national policy
14. The principles of national po licy contained in this Chapter shall be directory in nature
but courts shall be entitled to have regard to them in interpreting and applying any of the
provisions of this Constitution or of any law or in determining the validity of decisions of
the executive and in th e interpretation of the provi sions of this Constitution.
CHAPTER IV
HUMAN RIGHTS
Protection of human rights and freedoms
15.–(1) The human rights and freedoms enshrined in this Chapter shall be respected and
upheld by the executive, legislat ure 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 prescribed in this Chapter.
(2) Any person or group of persons with su fficient interest in the protection and
enforcement of rights under this Chapter shall be entitled to the assistance of the courts,
the Ombudsman, the Human Right s Commission and other organs of Government to
ensure the promotion, protection and redress of grievance in respect of those rights.
The right to life
16. Every person has the right to life and no person shall be arbitrarily deprived of his or
her life:
Provided that the execution of the death se ntence imposed by a competent court on a
person in respect of a criminal offence under th e laws of Malawi of which he or she has
been convicted shall not be rega rded as arbitrary deprivation of his or her right to life.
Genocide
17. Acts of genocide are prohibited a nd shall be prevented and punished.
Liberty
18. Every person has the right to personal liberty.
Human dignity and personal freedoms*
19.–(1) The dignity of all persons shall be inviolable.
(2) In any judicial proceedings or in any other proceedings before any organ of the State,
and during the enforcement of a penalty, resp ect for human dignity shall be guaranteed.
(3) No person shall be subject to torture of any kind or to cruel, inhuman or degrading
treatment or punishment.
(4) No person shall be subject to corporal punishment in connexion with any judicial
proceedings or in any other proceedings before any organ of the State.
(5) No person shall be subjected to medical or scientific experimentation without his or
her consent.
(6) Subject to this Constitution, every person sh all have the right to freedom and security
of person, which shall include the right not to be–
(a) detained without trial;

(b) detained solely by reason of his or her political or other opinions; or
(c) imprisoned for inability to fulfill contractual obligations.
Equality
20.–(1) Discrimination of persons in any form is prohibited and all persons are, under
any law, guaranteed equal and effective pr otection against discrimination on grounds of
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 propagati on of such practices and may render such
practices criminally punishable by the courts.
Privacy
21.–(1) Every person shall have the right to personal privacy, which shall include the
right not to be subject to–
(a) searches of his or he r person, home or property;
(b) the seizure of private possessions; or
(c) interference with private communicat ions, including mail and all forms of
telecommunications.
Family and marriage
22.–(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 negl ect, cruelty or exploitation.
(3) All men and women have the right to marry and found a family.
(4) No person shall be forced to enter into marriage.
(5) Sub-sections (3) and (4) shall apply to all marriages at law, custom and marriages by
repute or by permanent cohabitation.
(6) No person over the age of eighteen year s shall be prevented from entering into
marriage.

(7) For persons between the age of fifteen and eighteen years a marriage shall only be
entered into with the consent of their parents or guardians.
(8) The State shall actually discourage marriage between persons where either of them is
under the age of fifteen years.
Rights of children
23.–(1) All children, regardless of the circumst ances of their birth, 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 to be raised by, their parent
s.
(4) Children are entitled to be protected fr om economic exploitation or any treatment,
work or punishment that is, or is likely to–
(a) be hazardous;
(b) interfere with their education; or
(c) be harmful to their health or to thei r physical, mental or spiritual or social
development.
(5) For purposes of this section, children shal l be persons under sixteen years of age.
Rights of women
24.–(1) Women have the right to full and equa l protection by the law, and have the right
not to be discriminated against on the basis of their gender or marital status which
includes the right–
(a) to be accorded the same rights as men in civil law, including equal capacity–
(i) to enter into contracts;
(ii) to acquire and maintain rights in property, independently or in association with
others, regardless of their marital status;
(iii) to acquire and retain cu stody, guardianship and care of ch ildren and to have an equal
right in the making of decisions th at affect their upbringing; and
(iv) to acquire and retain citizenship and nationality.

(b) on the dissolution of marriage–
(i) to a fair disposition of property that is held jointly with a husband; and
(ii) to fair maintenance, taking into consider ation all the circumstances and, in particular,
the means of the former husband and the needs of any children.
(2) Any law that discriminates against wome n on the basis of gender or marital status
shall be invalid and legislation shall be passed to eliminate customs and practices that
discriminate against women, par ticularly practices such as–
(a) sexual abuse, harassment and violence;
(b) discrimination in work, busin ess and public affairs; and
(c) deprivation of property, including property obtained by inheritance.
Education
25.–(1) All persons are entitled to education.
(2) Primary education shall consist of at least five years of education.
(3) Private schools and other private institutions of higher learning shall be permissible,
provided that–
(a) such schools or institutions are registered with a St ate department in accordance with
the law;
(b) the standards maintained by such schools or institutions are not inferior to official
standards in State schools.
Culture and language
26. Every person shall have the right to use the language and to participate in the cultural
life of his or her choice.
Slavery, servitude and forced labour 27.–(1) No person shall be held in slavery or
servitude.
(2) Slavery and the slave trade are prohibited.
(3) No person shall be subject to forced labour.
(4) No person shall be subject to ti ed labour that amounts to servitude.

Property
28.–(1) Every person shall be able to acquire property alone or in association with others.
(2) No person shall be arbitrarily deprived of property.
Economic activity
29. Every person shall have the right freely to engage in economic activity, to work and
to pursue a livelihood anywhere in Malawi.
Right to development
30.–(1) All persons and peoples have a right to development and therefore to the
enjoyment of economic, social, cultural a nd political development and women, children
and the disabled in particular shall be give n special consideration in the application of
this right.
(2) The State shall take all necessary measures for the r ealization of the right to
development. Such measures shall include, amongst other things, equality of opportunity
for all in their access to basic resources, education, health services, food, shelter,
employment and infrastructure.
(3) The State shall take measures to intr oduce 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.
Labour
31.–(1) Every person shall have the right to fa ir and safe labour practices and to fair
remuneration.
(2) All persons shall have the right to form a nd join trade unions or not to form or join
trade unions.
(3) Every person shall be entitled to fair wa ges and equal remuneration for work of equal
value without distinction or discrimination of any kind, in pa rticular on basis of gender,
disability or race.
(4) The State shall take measures to ensure the right to withdraw labour.
Freedom of association

32.-(1) Every person shall have the right to freedom of association, which shall include
the freedom to form associations.
(2) No person may be compelled to belong to an association.
Freedom of conscience
33. Every person has the right to freedom of conscience, re ligion, belief and thought, and
to academic freedom.
Freedom of opinion
34. Every person shall have the right to free dom of opinion, including the right to hold
opinions without interference to ho ld receive and impart opinions.
Freedom of expression 35. Every person shall ha ve the right to freedom of expression.
Freedom of the press
36. The press shall have the right to report and publish I freely, within Malawi and
abroad, and to be accorded the fullest possible facilities for access to public information.
Access to information
37. Subject to any Act of Parliament, every pe rson shall have the right of access to all
information held by the State or any of its organs at any level of Gove rnment in so far as
such information is required fo r the exercise of his rights.
Freedom of assembly
38. Every person shall have the right to assemb le and demonstrate with others peacefully
and unarmed.
Freedom of movement and residence
39.–(1) Every person shall have the right of freedom of movement and residence within
the borders of Malawi.
(2) Every person shall have the right to l eave the Republic and to return to it.
Political rights
40.–(1) Subject to this Constitution, ever y person shall have the right–
(a) to form, to join, to participate in the activities of, and to recruit members for, a
political party;

(b) to campaign for a political party or cause;
(c) to participate in peaceful political activity intended to influence the composition and
policies of the Government; and
(d) freely to make political choices.
(2) The State shall, where necessary, provide f unds so as to ensure that, during the life of
any Parliament, any political party which has secured more than one-tenth of the national
vote in elections to that Parliament has su fficient funds to continue to represent its
constituency.
(3) Save as otherwise provided in this Cons titution, every person shall have the right to
vote, to do so in secret and to stand for election for public office.
Access to justice and legal remedies
41.–(1) Every person shall have a right to recognition as a person before the law.
(2) Every person shall have access to any c ourt of law or any other tribunal with
jurisdiction for final settlement of legal issues.
(3) Every person shall have the right to an effective remedy by a court of law or tribunal
for acts violating the rights a nd freedoms granted to him by this Constitution or any other
law.
Arrest, detention and fair trial
42.–(1) Every person who is detained, including every sentenced prisoner, shall have the
right–
(a) to be informed of the reason for his or her detention promptly, and in a language
which he or she understands;
(b) to be detained under conditions consistent with human dignity, wh ich shall include at
least the provision of reading and writing materials, adequate nutrition and medical
treatment at the expense of the State;
(c) to consult confidentially with a legal prac titioner of his or her choice, to be informed
of this right promptly and, where the interest s of justice so require, to be provided with
the services of a legal pr actitioner by the State;
(d) to be given the means and opportunity to communicate with, and to be visited by, his
or her spouse, partner, next-o f-kin, relative, religion counsellor and a medical practitioner
of his or her choice;

(e) to challenge the lawfulness of his or her detention in person or through a legal
practitioner before a court of law; and
(f) to be released if such detention is unlawful.
(2) Every person arrested for, or accused of, the alleged commission of an offence shall,
in addition to the rights which he or she ha s as a detained person, have the right–
(a) promptly to be informed, in a language wh ich he or she understands, that he or she
has the right to remain silent and to be warned of the consequences of making any
statement;
(b) as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if
the period of 48 hours expires outside ordina ry court hours or on a day which is not a
court day, the first court day after such expi ry, to be brought before an independent and
impartial court of law and to be charged or to be informed of the reason for his or her
further detention, failing which he or she shall be released;
(c) not to be compelled to make a confe ssion or admission which could be used in
evidence against him or her;
(d) save in exceptional circumstances, to be segregated from convicted persons and to be
subject to separate treatment appropriate to his or her status as an unconvicted person;
(e) to be released from detention, with or without bail unless the interests of justice
require otherwise;
(f) as an accused person, to a fair trial, which shall include the right–
(i) to public trial before an independent a nd impartial court of law within a reasonable
time after having been charged;
(ii) to be informed with sufficient particularity of the charge;
(iii) to be presumed innocent and to remain silent during plea proceedings or trial and not
to testify during trial;
(iv) to adduce and challenge evidence, and not to be a compellable witness against
himself or herself;
(v) to be represented by a legal practitioner of his or her choice or, where it is required in
the interests of justice, to be provided with legal representation at the expense of the
State, and to be informed of these rights;
(vi) not to be convicted of an offence in re spect of any act or omission which was not an
offence at the time when the act was committed or omitted to be done, and not to be

sentenced to a more severe punishment than that which was applicable when the offence
was committed;
(vii) not to be prosecuted again for a criminal act or omission of which he or she has
previously been convicted or acquitted;
(viii) to have recourse by way of appeal or review to a higher court than the court of first
instance;
(ix) to be tried in a langua ge which he or she understand s or, failing this, to have the
proceedings interpreted to him or her, at th e expense of the State, into a language which
he or she understands; and
(x) to be sentenced within a reasonable time after conviction;
(g) in addition, if that person is a child, to tr eatment consistent with the special needs of
children, which shall include the right–
(i) not to be sentenced to life imprison ment without possibility of release;
(ii) to be imprisoned only as a last reso rt and for the shortest period of time;
(iii) to be separated from adults when impris oned, unless it is considered to be in his or
her best interest not to do so, and to main tain contact with his or her family through
correspondence and visits;
(iv) to be treated in a manner consistent with the promotion of his or her sense of dignity
and worth, which reinforces respect for the rights and freedoms of others;
(v) to be treated in a manner which takes into account his or her age and the desirability
of promoting his or her reintegration into society to assume a constructive role; and
(vi) to be dealt with in a form of legal proceedings that reflects the vulnerability of
children while fully respecting human rights and legal safeguards.
Administrative justice
43. Every person shall have the right to–
(a) lawful and procedurally fair administrati ve action, which is justifiable in relation to
reasons given where his or her rights, freedoms, legitimate expectations or interests are
affected or threatened; and
(b) be furnished with reasons in writing for administrative action where his or her rights,
freedoms, legitimate expectations or in terests if those interests are known.

Limitations on rights
44.–(1) There shall be no derogation, restrictions or limitation with regard to–
(a) the right to life;
(b) the prohibition of torture and cruel, inhuman or degrading treatment or punishment;
(c) the prohibition of genocide;
(d) the prohibition of slavery, the slave trade and slave-like practices;
(e) the prohibition of imprisonment for failu re to meet contractual obligations;
(f) the prohibition on retrospective criminalization and the retrospective imposition of
greater penalties for criminal acts;
(g) the right to equa lity and recognition before the law;
(h) the right to freedom of conscience, belief, thought and religion and to academic
freedom; or
(i) the right to habeas corpus.
(2) Without prejudice to subsection (1), no re strictions or limitations may be placed on
the exercise of any rights and freedoms provided for in this Constitution other than those
prescribed by law, which are reasonable , recognized by international human rights
standards and necessary in an open and democratic society.
(3) Laws prescribing restrictions or limitations shall not negate the essential content of
the right or freedom in question, sh all be of general application.
(4) Expropriation of property shall be perm issible only when done for public utility and
only when there has been adequate notifica tion and appropriate compensation, provided
that there shall always be a right to appeal to a court of law.
(5) Wherever it is stated in th is Constitution that a person has the right to the services of a
legal practitioner or medical pr actitioner of his or her own choice, th at right shall be
without limitation, save where the State is ob liged to provide such services of a legal
practitioner or medical practitioner, in which case an Act of Parliament may prescribe
that the choice of the legal practitioner or me dical practitioner should be limited to those
in Government service or employment.
Derogation and public emergency

45.–(1) No derogation from rights contained in this Chapter shall be permissible save to
the extent provided for by this section and no such derogation shall be made unless there
has been a declaration of a state of emerge ncy 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 the Defen ce and Security Committee of the National
Assembly;
(c) only in times of war, threat of war, civil war or widespread natural disaster;
(d) only with regard to the specific location where that emergency exists, and that any
declaration of a state of emergenc y shall be publicly announced; and
(e) only after the state of emergenc y has been publicly announced.
(3) Derogation shall only be permissi ble during a state of emergency–
(a) with respect to freedom of expression, fr eedom of information, freedom of movement,
freedom of assembly and rights under sect ion 19 (6) (a) and section 42 (2) (b);
(b) to the extent that such derogation is not inconsistent with the obligations of Malawi
under International Law; and
(c) to the extent that–
(i) in the case of war or thr eat of war, it is strictly required to prevent the lives of
defensive combatants and legitimate military objectives from being placed in direct
jeopardy; or
(ii) in the case of a widespread natural disa ster, it is strictly required for the protection
and relief of those people in the disaster area.
(4) The declaration of a state of emergency and any action taken in consequence thereof
shall be in force for a period of not more than twenty-one days, unless it is extended for a
period of not longer than three months, or c onsecutive periods of not longer than three
months at a time, by resolution of the Nati onal Assembly adopted by a majority of at
least two-thirds of all its members.
(5) The High Court shall be competent to hear applications challenging the validity of a
declaration of a state of emergency, any extension thereof, and any action taken,
including any regulation enacte d, 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 possibl e and in any case not later than forty-eight hours of
detention;
(b) the name of every detainee and a reference to the measures in terms of which he or
she is being detained shall be published in the Gazette within five days of his or her
detention;
(c) when rights entrenched in section 19 (6) (a) or section 42 (2) (b) have been
suspended–
(i) the detention of a person sh all as soon as it is reasonably possible but not later than ten
days after his or her deten tion, be reviewed by a court, and the court shall order the
release of the detainee if it is satisfied that the detention is not necessary to restore peace
or order;
(ii) a detainee shall at any stage after the e xpiry of a period of five days after a review
under of subparagraph (i) be entitled to apply to a court of law for a further review of his
or her detention, and the court sh all order the release of the detainee if it is satisfied that
the detention is no longer necessary to restore peace or order;
(d) the State shall for the purpose of a review referred to in paragraph (c) submit written
reasons to justify the detention or further detention of the detainee to the court, and shall
furnish the detainee with such reasons not later than two days before the review.
(7) If a court finds the grounds for the detenti on of a person to be unjustified or illegal it
shall order his or her release and that person shall not be detained again on the same
grounds unless the State shows good cause to a court prior to such re-detention.
(8) Under no circumstance shall it be possible to suspend this Constitution or any part
thereof or dissolve any of its organs, save as is consistent with the provisions of this
Constitution.
Enforcement
46.–(1) Save in so far as it may be authorized to do so by this Constitution, the National
Assembly or any subordinate legislative au thority shall not make any law, and the
executive and the agencies of Government shall not take any acti on which abolishes or
abridges the fundamental rights and freedoms c onferred by this Chapter, and any law or
action in contravention thereof shall, to the extent of the contravention, be invalid.
(2) Any person who claims that a fundament al right or freedom guaranteed by this
Constitution has been infringed or th reatened shall be entitled–

(a) to make application to a competent court to enforce or protect such a right or freedom;
and
(b) to make application to the Ombudsman or the Human Rights Commission in order to
secure such assistance or advice as he or she may reasonably require.
(3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred
by this Constitution have been unlawfully denied or violated, it shall have the power to
make any orders that are necessary and appr opriate to secure the enjoyment of those
rights and freedoms and where a court finds th at a threat exists to such rights or
freedoms, it shall have the power to make any orders necessary and appropriate to
prevent those rights and freedoms from being unlawfully denied or violated.
(4) A court referred to in subsection (2) (a) shall have the power to award compensation
to any person whose rights or freedoms have been unlawfully denied or violated where it
considers it to be appropriate in the circumstances of a particular case.
(5) The law shall prescribe criminal penaltie s for violations of those non-derogable rights
listed in subsection 44 (1).
CHAPTER V
CITIZENSHIP
Citizenship
47.–(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 Malawi after the
appointed day.
(2) An Act of Parliament may make provision for the acquisition or loss of citizenship of
Malawi by any person after the appointed day, but citizenship shall not be arbitrarily
denied or deprived.
(3) In this secti on, the expression–
(a) “acquisition of citizenship” includes acquisition by birth, descent, marriage,
registration, naturalisatio n or any other means prescribed by an Act of Parliament; and
(b) “loss of citizenship” includes loss by deprivation, renunciation or any other means
prescribed by an Act of Parliament.
CHAPTER VI
T HE LEGISLATURE

Parliament
48.–(1) All legislative powers of the Republic shall be vested in Parliament which shall
have the powers and responsibilitie s 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 Senate shall
be decided by a majority of the votes of the members present and voting, unless this
Constitution or any other Act of Parliament otherwise provides.
Definitions
49.–(1) For the purposes of this Constituti on, unless otherwise provided, “Parliament”
consists of the National Assembly, the Senate and the President as Head of State.
(2) Unless otherwise provided in this Constitu tion, an “Act of Parliament” shall be a Bill
which has–
(i) been laid before and passed by a majority of the National Assembly;
(ii) been laid before and passed by a majority of the Senate; and
(iii) been assented to by the Presiden t in accordance with this Chapter.
(3) “Chamber” means either the Chamber of the National Assembly or of the Senate.
Quorum
50.–(1) The quorum of each Chamber shall be formed by the presence at the beginning
of any sitting of at l east two thirds of the members of that Chamber entitled to vote, not
including the Speaker or a presiding member.
(2) If it is brought to the attention of the Speaker or person acting as Speaker by any
member of the Chamber over which he or she is presiding that there are less than the
number of members prescribed by the Standing Orders of that Chamber present and after
such interval as may be prescribed in the rules of procedure of the Chamber, the Speaker
or person acting as Speaker asce rtains that the number of members present is still less
than that prescribed by the Standing Orders Chamber, he or she shall adjourn the
Chamber.
Qualifications of memb ers of Parliament
51.–(1) A person shall not be qualified to be nominated or elected as a member of the
Parliament unless that person–

(a) is a citizen of the Republic who at the time of nomination has attained–
(i) the age of twenty-one years, in the case of the National Assembly; and
(ii) the age of thirty-five, years in the case of the Senate.
(b) is able to speak and to r ead the English language well eno ugh to take an active part in
the proceedings of Parliament; and
(c) is registered as a voter in a constituency.
(2) Notwithstanding subsection (1), no pers on shall be qualified to be nominated or
elected as a member of Parliament who–
(a) owes allegiance to a foreign country;
(b) is, under any law in force in the Repub lic, adjudged or otherwise declared to be
mentally incompetent;
(c) has been convicted by a competent cour t of a crime involving dishonesty or moral
turpitude;
(d) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt
under any law in force in the Republic;
(e) holds, or acts, in any public office or appointment, except where this Constitution
provides that a person shall not be disqualified from sta nding for election solely on
account of holding that or appointment or where that person resigns from that office in
order to stand;
(f) belongs to, and is serving in the Defen ce Forces of Malawi or the Malawi Police
Force; and
(g) has been convicted by any court of any vi olation of any law relating to election of the
President or election of the members of Parliament under any Act of Parliament.
Oath of allegiance
52. Every officer and member of Parliament, before taking his or her seat, or assuming
the duties of his or her office shall take a nd subscribe before the Chief Justice in the
Chamber in which he or she shall sit–
(a) the oath of allegiance in th e form prescribed by law; and
(b) such other oaths for the due performance of their respective offices as may be
prescribed by law.

The Speaker
53.–(1) There shall be a Speaker of the National Assembly and a Speaker of the Senate
who shall be elected by majority vote of the Chamber in which he or she sits at the first
sitting after any dissoluti on of that Chamber.
(2) The members of each Chamber shall elect one or more persons to be Deputy Speaker
or Deputy Speakers at the first sitting after a general election in the case of the National
Assembly or after a local el ection in the case of the Senate 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 resign ation 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-Pres ident, a Minister or a Deputy Minister or
a member of the Senate; or
(d) if the Chamber in which the Speaker pr esides, by a resolution supported by the votes
of not less than two-thirds of all the members of that Chamber, resolves that the Speaker
be removed from office:
Provided that the Speaker shall have the right to be heard by the Chamber on his or her
own motion on any matter relating to hi s or her removal from office.
(4) The Speaker of each Chamber, or in the absence of the Speaker, such Deputy Speaker
of that Chamber as the Speaker has nomina ted, shall preside at every sitting of that
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 Speak er for that session or that sitting.
(5) Any person who is elected Speaker, or any person acting as Speaker, shall discharge
his or her 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 a nd the Standing Orders of the Chamber in which he or she
sits.
(6) Notwithstanding that the Speaker or a pers on acting as Speaker has been elected as a
member of a political party to the Chamber in which he or she sits he or she shall not be
subject to the control, discipli ne, authority or direction of th at political party or any other
political party in the discha rge of the functions and dutie s of that office and in the
exercise of the powers of that office.

(7) The Speaker may, where there is a matter which is the subject of debate in the
Chamber over which he or she is presiding a nd which is a matter solely pertaining to his
or her constituency, temporarily vacate the Sp eaker’s seat and participate in that debate
and exercise a deliberative vote where there is voting on that matter.
Casting vote
54.–(1) Subject to subsection 53 (7) the Sp eaker of a Chamber shall not have a
deliberative vote, but if the votes of the Cham ber 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 Senate, other than the Speaker or Deputy
Speaker, shall, when presiding in the Chamber of which he is a member, retain his or her
original deliberative vote as a member and sh all also have and exercise a casting vote if
the votes of that Chamber are equally divided.
The Clerk
55. There shall be a Clerk to the National Asse mbly and a Clerk to the Senate who shall
be public officers and shall assist the Speaker of the Chamber to which that Clerk is
appointed and perform such other functions and duties as the Speaker may direct.
The right to regulate procedure 56.–(1) Subject to this Constitution, the National
Assembly, or the Senate, may by Standing Order or otherwise regulate its own procedure.
(2) Save as otherwise provided in this Constitution, the National Assembly and the
Senate may act unless more than two-thirds of all their seats are vacant.
(3) The presence or participation of any person no t 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 prohibi ting 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 prescr ibe in respect of its own proceedings.
(6) Parliament may establish any committees of its members and may form joint
committees for the scrutiny of legislation and performance of other functions, except
voting on motions and Bills.
(7) In addition to any committee appointed unde r subsection (6) there shall be a Public
Appointments Committee and a Legal Affair s Committee of the National Assembly
which shall each–

(a) be appointed by the National Assembly with proportionate representation from all
parties represented in the National Assembly;
(b) appointed within thirty days of the fi rst sitting of the National Assembly after a
general election and thereafter annually; and
(c) perform such functions as are conferred on them by this Constitution or by an Act of
Parliament.
Money Bills
57.–(1) Except upon the recommendation of the Minister responsible for Finance,
signified in writing, the Nati onal Assembly shall not–
(a) proceed upon any Bill or any amendment to a Bill that, in the opinion of the person
presiding, makes provision for any of the following purposes–
(i) for the imposition of tax or the alteration of tax;
(ii) for the imposition of any charge upon the Consolidated Fund, or the alteration of any
such charge;
(iii) for the payment, issue or withdrawal fr om the Consolidated Fund of any moneys not
charged thereon, or any increase in the amount of such payment, issue or withdrawal; or
(iv) for the composition or remission of any debt due to the Government;
(b) proceed upon any motion or any amendment to a motion the effect of which, in the
opinion of the person presiding, would be to make provision for any of the purposes
specified in subsection (a); or
(c) receive any petition that, in the opin ion of the person presiding, requests that
provision be made for any of the purposes.
(2) The Senate shall not have the power to debate or vote upon any motion or receive any
Bill to which this section applies except with the recommendation of the Minister
responsible for Finance, signified in writing, and may not in any case amend or reject
such a motion or Bill.
Subsidiary legislation
58.–(1) Parliament may, with respect to any pa rticular Act of Parliament, delegate to the
executive or to the judiciary the power to make subsidiary legislation within the
specification and for the purposes laid out in that Act and any subsid iary legislation so
made shall be laid before Parliament in accordance with its Standing Orders.

(2) Notwithstanding subsection (1), Parliament shall not have the power to delegate any
legislative powers which would substantially and significantly affect the fundamental
rights and freedoms recognized by this Constitution.
Sessions and sittings
59.–(1) Every session of the National Assembly and of the Senate 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 resp ect to the Chamber in which that Speaker
presides and the sittings of each Chamber af ter the commencement of that session shall
be held at such times and on such days as that Chamber shall appoint:
Provided that– (a) the Presiden t, in consultation with the Speaker of the relevant
Chamber, may summon, on extraordinary occasi ons, a meeting of the National Assembly
or the Senate; and
(b) the President may, in consultation with the Speaker of the relevant Chamber,
prorogue the National Assembly or the Senate.
(2) There shall be at least tw o sittings of the National Asse mbly and of the Senate every
year.
Privileges and immunities
60.–(1) The Speaker, every Deputy Speaker, every member of the National Assembly
and every member of the Senate shall, excep t in cases of treason, be privileged from
arrest while going to, returning from, or while in the precincts of the National Assembly
or the Senate, and shall not, in respect of any utterance that forms part of the proceedings
in the National Assembly or the Senate, be amenable to any other action or proceedings
in any court, tribunal or body other than Parliament.
(2) All official reports and publications of Pa rliament or of its proceedings or of the
proceedings of any committee of the Parliament shall be privileged and utterances made
in the Parliament or in any committee ther eof wherever published shall be protected by
absolute privilege.
(3) The National Assembly and the Senate shall each have the power to conduct
investigations and exercise the power to subpoena the attendance of any person or office
holder whosoever as required in connexion w ith the prudent exercise of the respective
functions of each Chamber.
Member’s interests
61.–(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,
shall–

(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 Parliament fails to disc lose a material interest in accordance with
subsection (1) that member shall be guilty of contempt of the Chamber of which he or she
is a member.
Composition of the National Assembly
62.–(1) The National Assembly shall consist of such number of seats, representing every
constituency in Malawi, as shall be determined by the Electoral Commission.
(2) Each constituency shall freely elect any person, subject to this Constitution and an
Act of Parliament, to represent it as a member of the National Assembly in such manner
as may be prescribed by this Constitution or an Act of Parliament.
Vacancies in the National Assembly
63.–(1) The seat of a member of the National Assembly shall become vacant–
(a) if the National Assembly has been dissolved;
(b) if the member dies or resigns his or her seat;
(c) if the member ceases to be a citizen of Malawi;
(d) if the member assumes the office of President or Vice- President, or becomes a
member of the Senate;
(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 memb er’s seat vacant in accordance with such
Standing Orders as may permit or prescr ibe 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 hi s or her constituency in accordance with the
provisions of this Constitution or of an Act of Parliament.
(2) The Speaker of the National Assembly shal l give notice in the Gazette in the event
that the seat of any member of the Assembly shall become vacant under this section:
Provided that–

(a) Parliament shall make provision for holding by-elections to fill any vacancy that shall
occur;
(b) any by-election to fill any vacancy that occurs shall be held as expeditiously as
possible, and in no event later than sixty days after the seat of any member of the
National Assembly becomes vacant; and
(c) any member elected at a by-election shall serve until such time as his or her seat
becomes vacant in accordance with subsection (1).
(3) The Speaker may, upon a motion of the Na tional Assembly, postpone the declaration
of a vacant seat for such period as that moti on prescribes so as to permit any member to
appeal to a court or other body to which an appeal lies against a decision which would
require that member to vacate his or her seat in accordance with this section.
Recall of members
64.–(1) Every member of the National Assembly shall be liable to be recalled by his or
her constituency in accord ance with this section.
(2) A member of the National Assembly sh all be subject to recall by his or her
constituency where a petition has been uphe ld by the Electoral Commission, where the
petitioner–
(a) is a registered voter in the constituenc y 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 le ss 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
65.–(1) The Speaker shall declare vacant th e seat of any member of the National
Assembly who was, at the time of his or her election, a member of one political party
represented in the National Assembly, othe r than by that member alone but who has
voluntarily ceased to be a member of that party and has joined another political party
represented in the National Assembly.

(2) Notwithstanding subsection (1), all members of all parties shall have the absolute
right to exercise a free vote in any and all proceedings of the National Assembly, and a
member shall not have his or her seat declared vacant solely on account of his or her
voting in contradiction to the recommendati ons of a political party, represented in the
National Assembly, of which he or she is a member.
Functions and powers of the National Assembly
66.–(1) The National Assembly shall be a directly elected Chamber the primary purpose
of which shall be legislative and which shall have power, subject to this Constitution, to–
(a) receive, amend, accept or reject Government Bills and Private Bills;
(b) initiate Private Members Bills on the motion of any member and amend, accept or
reject all Private Member’s Bills;
(c) receive, amend, accept or reject a ny Bills remitted from the Senate;
(d) debate and vote motions in relation to any matter including motions to indict and
convict the President or Vi ce-President by impeachment;
(e) exercise such other functions and power s as are conferred on it by this Constitution;
and
(f) take all actions incidental to and necessary for the prope r exercise of its functions.
(2) For the purposes of this Constitution–
(a) a Government Bill shall be a Bill promul gated by the Government and introduced to
Parliament on behalf of the Government;
(b) a Private Bill shall be–
(i) promulgated by an agency that is not part of the Government; and
(ii) introduced to Parliament on behalf of that agency where that agency is mandated by
an Act of Parliament so to do;
(c) a Private Member’s Bill shall be–
(i) promulgated by a member of Parliament; and
(ii) introduced by that member in the Chamber of which he or she is a member in
accordance with the procedure of that Chamber.
Dissolution of Parliament

67.–(1) The National Assembly shall last for five years from the date of its swearing in
and then shall stand dissolved.
(2) Whenever the National Assembly is disso lved a general election of members of the
National Assembly shall be held within sixty 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 da te appointed by the Electoral Commission as
the polling day for the election or, if more th an one polling day is appointed, within forty-
five days of the last polling day.
Composition of the Senate
68.–(1) The Senate shall consist of eighty members as follows–
(a) one Senator from each District, registered as a voter in that District and elected by the
District Council of that Dist rict in secret ballot within thirty days of each local
government election;
(b) one Senator from each District, being a Chief registered as a voter in that District and
elected by a caucus of all the Chiefs of that Dist rict in secret ballot within thirty days of
each local government election;
(c) thirty-two other Senators who shall be elected by a two-thirds majority of sitting
members of the Senate on the basis of nominations by the Nominations Committee
provided for in subsection (2) from all of the following sectors–
(i) interest groups, who shall include repres entatives from women’s organizations, the
disabled and from health, education, farming a nd business sectors, and from trade unions;
(ii) society, who shall be such persons as are generally recognized for their outstanding
service to the public or contribution to the social, cultural, or technological development
of the nation; and
(iii) religion, who shall include representatives of the major religious faiths in Malawi.
(2) There shall be a Nominations Committee of the Senate which shall be formed within
forty-five days of each local government election for the purpose of nominating the
representatives referred to in subsection (1) (c) and which shall consist of the Speaker of
the National Assembly, the Ombudsman, and seven members, being Senators elected
under subsections (1) (a) or (b), appointe d by the National Assembly on a motion by the
Speaker of the National Assembly.
(3) A Senator may be elected or nominated for an indefinite number of subsequent terms,
unless otherwise disqualified or removed.

(4) The Nominations Committee shall endeavour to ensure, when considering
nominations, that the Senate is proportionally representative of the various groups in
Malawian society and therefore shall seek to en sure, so far as it is possible, that one-half
of the members of the Senate are women.
Vacancies in the Senate
69.–(1) The seat of a member of the Senate shall become vacant–
(a) if the Senate has been dissolved;
(b) if a member dies or resigns his or her seat;
(c) if a member ceases to be a citizen of the Republic;
(d) if a member assumes the office of Presid ent or Vice-President, Minister or Deputy
Minister or becomes a member of the National Assembly;
(e) if any circumstances arise that, if he or she were not a member of the Senate, would
cause that member to be disqualified for nomination or election under this Constitution or
an Act of Parliament; or
(f) if the Senate declares a member’s seat vacant in accordance with such rules and
Standing Orders as may permit or provide for the removal of a member for good and
sufficient reason provided that they accord wi th the principles of natural justice.
(2) The Speaker of the Senate shall give not ice to the Electoral Commission and in the
Gazette in the event that the seat of any member of the Senate becomes vacant under this
section.
(3) Where the seat of a member of the Senate is declared vacant by virtue of this section–
(a) if that member was elected by a District Council, then the Electoral Commission shall
notify the Council of that District which elected that member to declare an election within
thirty days of the seat becoming vacant;
(b) if that member was elected by Chiefs, then the Speaker of the Senate shall notify the
Chiefs of the District from where that member was elected so as to convene the relevant
caucus of Chiefs for the el ection of another member;
(c) if that member is a sector representative , then the Speaker of the Senate shall convene
the Nominations Committee of the Senate which shall put forward nominations for
appointment to the Senate.
Functions and powers of the Senate

70. The Senate shall be an indirectly elected chamber the primary purpose of which shall
be deliberative and which shall have pow er, subject to this Constitution, to–
(a) receive, scrutinize and amend Bills from the National Assembly;
(b) vote motions to confirm or remit Bills passed by the National Assembly;
(c) debate any issue on its own motion, initiate Private Member’s Bills and vote motions
in respect of any matter, including motions to indict or convict the President or Vice-
President by impeachment;
(d) exercise such other functions and powers as are conferred on it by this Constitution;
(e) carry out such other functions as may be de legated to it by an Act of Parliament; and
(f) take all actions incidental to and necessary for the prope r exercise of its functions.
Scrutiny by the Senate
71.–(1) All Bills shall be laid before the Senate.
(2) Any member of the Senate may, in respect of a Bill laid before the Senate–
(a) within fourteen days of that Bill being la id, raise a motion to debate that Bill in full
readings; or
(b) after fourteen days, but before the lapse of forty days, raise a m
otion to remit the Bill
to the National Assembly.
(3) Any Bill laid before the Senate which ha s not been the subject of a motion to debate
within the meaning of this section shall afte r the lapse of forty days, be presented for
assent by the President.
(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 assent by the
President; 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 assent by the President.
(5) Where a Bill has been remitted by the Senate by virtue of a majority vote in favour of
a motion under subsection (2) (b)–

(a) the Senate shall give written 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 majo rity of all the members of the National
Assembly, may be presented for assent by the President.
(6) Where a Private Member’s Bill has been in itiated and passed by the Senate it shall be
sent to the Speaker of the National Assembly who shall table that Bill which may be
further debated and amended and, if passed by a majority of the National Assembly, the
Bill shall be presented for assent by the President.
Dissolution of the Senate
72. The Senate 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 dissolves sixty days
before the next Local Government elections:
Provided that the life of the Se nate shall not, in any case, be longer than three years.
Presidential assent 73.–(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 Presid ent 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 notification of that withholding.
(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 tw enty-one days referred to in subsection (2)
and six months from that date, the Bill sh all again be presented for assent by the
President.
(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 74. No law made by Parliament shall come into force until
it has been published in the Gazette, but Parl iament may prescribe that a law shall not
come into force until some later date, after its publication in the Gazette.
CHAPTER VII

ELECTIONS
The Electoral Commission
75.–(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 qua lified to hold the office of a member of the Electoral
Commission if that person is a Minister, De puty Minister, a member of Parliament or a
person holding public office.
(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 or her appointment, unless
reappointed to a new four-year term; or
(b) if any circumstances arise that, if that person were not a memb er of the Electoral
Commission, he or she would be disq ualified for appointment as such.
(4) A member of the Electoral Commission ma y be removed from office by the President
on the recommendation of the Public A ppointments Committee on the grounds of
incapacity or incompetence in the perfor mance of the duties of that office.
Powers and functions
76.–(1) The Electoral Commission shall exercise such functions in relation to elections
as are 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 im partially on the basis of ensuring that
constituencies contain approximately equal numbe rs of voters eligible to register, subject
only to considerations of–
(i) population density;
(ii) ease of communication; and
(iii) geographical features a nd existing administrative areas;
(b) to review existing constituency boundaries at intervals of not more than five years and
alter them in accordance with the principl es laid down in subsection (2) (a);

(c) to determine electoral petitions and complaints related to the conduct of any elections;
(d) to ensure compliance with the provisions of this Constitution and any other Act of
Parliament; and
(e) to perform such other functions as may be prescribed by this Constitution or an Act of
Parliament.
(3) Any person who has petitioned or complained to the Electoral Commission shall have
a right to appeal to the High Court against determinations made under subsections (2) (c)
and (2) (d).
(4) The Electoral Commission shall exercise its powers, functions and duties under this
section independent of any di rection or interference by othe r authority or any person.
(5) Without prejudice to subsection (3)–
(a) the High Court shall have ju risdiction to entertain applications for judicial review of
the exercise by the Electoral Commission of its powers and functions to ensure that such
powers and functions 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 but may not alter the
boundaries of any constituency, except upon the recommendation of the Electoral
Commission.
The franchise
77.–(1) All persons shall be eligible to vote in any general election, by-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 regist ered as a voter in a
constituency if, and shall not be so qualifie d unless, at the date of the application for
registration that person–
(a) is a citizen of Malawi or, if not a citize n, has been ordinarily resident in the Republic
for seven years;
(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.

(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
mentally incompetent;
(b) is under sentence of death imposed by a court having jurisdiction in the Republic,
either before or after the appointed day; or
(c) is disqualified from registration as a vot er on the grounds of his or her 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.
(4) Where any person is qualified to be regist ered in more than one constituency as a
voter, he or she may be so registered only in one of the constituencies.
(5) No person shall exercise more than one vote in any one election.
CHAPTER VIII
THE EXECUTIVE
The President
78. There shall be a President of the Republic who sha ll be Head of State and
Government and the Commander-in-Chief of the Defence Forces of Malawi.
The Vice-President
79. 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
Parliament and by the President.
Election of the President and Vice-President
80.–(1) The President shall be elected in accordance with the provisions of this
Constitution in such manner as may be prescribed by an Act of Parliament.
(2) The President shall be elec ted by a majority of the electorate through direct, universal
and equal suffrage.
(3) Every presidential candidate shall declare w ho shall be his or her Vice-President if he
or she is elected at the time of his or her nomination.

(4) The Vice-President shall be elected concurrently with the President and the name of a
candidate for the Vice-President shall appear on the same ballot paper as the name of the
Presidential candidate who nominated him.
(5) A person shall only be qualified for nom ination for election as President or Vice-
President if that person–
(a) is a citizen of Malawi by birth or descent; and
(b) has attained the age of thirty-five years.
(6) No person shall be eligible for nominati on as a candidate for election as President or
Vice-President if that person–
(a) has been adjudged or decl ared to be of unsound mind;
(b) is an undischarged bankrupt having b een declared bankrupt under a law of the
Republic;
(c) has been convicted by a court of a crime involving dish onesty or moral turpitude;
(d) is under a declaration of allegiance to a foreign country;
(e) is the holder of a public office or a me mber of Parliament, unless that person first
resigns;
(f) is a serving Member of the Defence Forces or Malawi Police Force; or
(g) has been convicted by any court of any vi olation of any law relating to election of the
President or election of the members of Parliament under any Act of Parliament.
Oath of office
81.–(1) Before a person elected to be Presiden t 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 or she thinks fit,
make an affirmation which shall be in the li ke form with the substitution of “affirm” for
“swear”, and the omission of the final sentence.

(3) A person elected to be President or appointed 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
82. The President and Vice-President shall receive such salary, allowance or pension as
may, from time to time, be determined by an Act of Parliament in consultation with
President and shall have such adequate number of residences and personal staff, at State
expense, as an Act of Pa rliament may prescribe.
Term of office
83.–(1) The President and the Vice-President shall hold office for five years.
(2) The President or Vice-President may se rve a maximum of two consecutive terms.
(3) Whenever there is a vacancy in the office of President the Vice-President shall
assume that office for the remainder of the term.
Death or resignation of a Vice-President
84. If the Vice-President dies or resigns from office, the vacancy shall be filled for the
unexpired period of that term by a pe rson appointed by the President.
Vacancy of office of President and Vice-President
85. If at any time both the office of President and Vice-President become vacant then the
Cabinet shall elect from among its member s an Acting President and Acting Vice-
President who shall hold office for not more than sixty days or, where four years of a
Presidential term have expired, for th e rest of that Presidential term.
Removal from office
86.–(1) The President and Vice-President shall be removed from office where the
National Assembly has indicted and convict ed the President or Vice-President by
impeachment.
(2) The procedure for impeachment shall be as laid down by the Standing Orders of
Parliament, provided that they are 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 that

either occurred or came to light during the term of office of the President or the Vice-
President;
(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 of indictment by impeachment and the
Chief Justice shall preside over trial on impeachment;
(d) conviction on impeachment shall require th e 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 imp eachment shall not act as a bar to legal proceedings.
Incapacity
87.–(1) Whenever the President is incapacitate d so as to be unable to discharge the
powers and duties of that office, the Vice- Pr esident shall act as President, until such
time, in the President’s term of office, as the President is able to resume his or her
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 decl aration, certified by a board of independent medical
practitioners, that the President is unable to di scharge the duties of the office of President;
(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 to the Sp eaker of a declaration under subsection (2), the Vice-
President shall immediately assume the power s and duties of the office of President as
Acting President.
(4) Where the 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, ce rtified by a board of independent medical practitioners, stating his
or her fitness to carry on the duties of the office of President:
Provided that–

(a) upon receipt of such a declaration from the President, the National Assembly shall
have thirty days within which to determine wh ether or not the President is in fact or not
so incapacitated as to be unable to discharg e the duties of the office of President; and
(b) if the National Assembly determines that the President remains so incapacitated so as
to be unable to discharge the duties of the office of President, by an affirmative vote of
two-thirds of all of its members, the Vice-Pres ident shall continue to act as President until
the National Assembly determines that the Pres ident is again fit to assume the duties and
powers of the office of President; or
(c) if the National Assembly de termines that the President is no longer so incapacitated as
to be unable to discharge the duties of the office of President by an affirmative vote of
two-thirds of the National Assembly, the President shall resume the duties of the office of
President within thirty days of that vote.
(5) 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 duties of the office of Presid ent in accordance with subsection (4), then a
Presidential election shall be held.
(6) The provisions of this s ection shall apply mutatis mutandis to the incapacity of the
Vice-President except that the certificate sha ll then be signed by the President and be
submitted to the Speaker by the President and the functions of the Vice-President shall be
carried out by such other member of Cabinet as the President may appoint.
Responsibility of the President
88.–(1) The President shall be responsible fo r 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 Republic.
(2) The President shall provide executive leader ship in the interest of national unity in
accordance with this Constitution and the laws of the Republic.
(3) The President and members of the Cabine t shall not hold any other public office and
shall not perform remunerative work outside the duties of their office and shall fully
disclose all of their assets, lia bilities and business interests, those of their spouses, or held
on their behalf upon election.
(4) Any business interests held by the Presiden t and members of the Cabinet shall be held
on their behalf in a beneficial trust which sh all be managed in such manner as to ensure
conformity with this section.
(5) The President and members of the Cabinet shall not use their respective offices for
personal gain or place themselves in a situation where their material interests conflict
with the responsibilities and duties of their offices.

Powers and duties of the President
89.–(1) The President shall have the following powers and duties–
(a) to assent to Bills and promulgate 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 n ecessary in accordance with powers conferred
upon him or her by this Constitution or an Act of Parliament;
(e) subject to this Constitution, to appoint, accredit, receive and recognize ambassadors,
high commissioners, plenipotentiaries, diplomatic representatives and other diplomatic
officers, consuls and consular officers;
(f) to negotiate, sign, enter into and accede to in ternational agreements or to delegate such
power to ministers, ambassa dors and high commissioners;
(g) to appoint commissions of inquiry;
(h) to refer disputes of a constituti onal nature to the High Court; and
(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 subsect ion shall be taken in consultation with an Advisory
Committee on the Granting of Pardon, the comp osition and formation of which shall be
determined by an Act of Parliament; and
(b) judgements in cases of impeachment of th e President or Vice- President shall not be
liable to pardon by the President.
(3) The President shall each y ear, immediately before the co nsideration of the official
budget, attend Parliament and shall–
(a) address Parliament on the state of th e nation and on the future policies of the
Government at that time;
(b) report on the policies of the prev ious year; and

(c) respond to questions.
(4) The President shall be called to Parliament to answer questions at such times as may
be prescribed by the Standing Orders of Parliament or on a motion of the National
Assembly or Senate.
(5) Subject to this Constitution and any Act of Parliament, the President shall exercise all
other powers reasonably necessary and incidental to the functions of his
or her office in
accordance with this Constitution.
(6) 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 govern ment official to whom the President has
delegated such power in writing.
Confirmation of decisions, etc., of the President
90.–(1) Decisions of the President shall be expressed in writing under his or her
signature.
(2) The signature of the President on any in strument shall be confirmed by the Public
Seal.
Immunity
91.–(1) No person holding the office of President or performing the functions of
President may be sued in any civil proceedi ngs but the office of President shall not be
immune to orders of the courts concerni ng rights and duties under this Constitution.
(2) No person holding the office of President shall be charged with any criminal offence
in any court during his term of office, except where he or she has been charged with an
offence on impeachment.
(3) After a person has vacated the office of Pr esident, he or she shall not be personally
liable for acts done in an official capacity du ring his or her term of office but shall not
otherwise be immune.
Cabinet
92.–(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 responsib le 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
whose office shall be public office 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 th e appropriate persons or authorities; and
(d) have such other functions as the Cabinet may direct.
Government departments
93.–(1) There shall be Ministers and Deputy Ministers who shall be appointed by the
President and who shall exercise such pow ers and functions, including the running of
Government departments, as may be pres cribed by the President subject to this
Constitution.
(2) Every Government department shall be und er the supervision of a Principal Secretary
who shall be under the direction of a Minister or Deputy Minister, and whose office shall
be a public office.
Appointment of Ministers
94.–(1) The President shall have the power to appoint Ministers or Deputy Ministers and
to fill vacancies in the Cabinet.
(2) A person shall not be qualif ied to be appointed as a Minister or Deputy Minister
unless that person–
(a) is a citizen of the Republic who upon taking office, has attained the age of twenty-one
years;
(b) is able to speak and to r ead the English language; and
(c) is registered as a voter in a constituency.
(3) Notwithstanding subsection (2), no person shall be qualified to be appointed as a
Minister or Deputy Minister who–
(a) owes allegiance to a foreign country;

(b) is, under any law in force in the Republic, adjudged or otherwise declared to be of
unsound mind;
(c) has been convicted by a court of a crime involving dish onesty or moral turpitude;
(d) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt
under any law in force in the Republic;
(e) holds or acts in any public office or appointment, except where this Constitution
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 Defence Forces of Mala wi or in the Malawi Police
Force;
(g) has been convicted by any court of any vi olation of any law relating to election of the
President or election of the members of Parliament under any Act of Parliament.
Oath of office and removal of Minister or Deputy Minister
95.–(1) 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
Parliament.
(2) The President shall have the power to remove Ministers or Deputy Ministers from
their posts.
Duties and functions of the Cabinet
96.–(1) The members of the Cabinet sh all have the following functions–
(a) to advise the President;
(b) to direct, co-ordinate and supervise th e activities of Government departments,
including parastatal bodies;
(c) to initiate Bills for submission to the Na tional Assembly and to explain those Bills;
(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 or
participating in any debate pertaining to th e content of the policies of the Government;

(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 implem entation and administration of laws; and
(h) to carry out such other functions reasona bly necessary for the performance of their
duties in accordance with this Constitution, as may be prescribed by an Act of Parliament
or the President.
(2) In performing the duties and functions referr ed 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
97. All Ministers shall be responsible to the President for the administration of their own
departments.
The Attorney General
98.–(1) There shall be the office of Attorney General, who shall be the 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 ot her persons in the public service, acting as
subordinates of that person and in accordance with his or her general and specific
instructions.
(3) Appointment to the office of Attorney General shall be made by the President.
(4) The office of Attorney General shall be come vacant after the person holding that
office has served for five years, or on his or her resignation or retirement, whichever is
sooner, provided that the person holding that office may be nominated for such further
terms, not exceeding five years, as the President considers appropriate.
(5) The office of Attorney General may either be the office of a Minister or may be a
public office.
(6) The Attorney General shal l be subject to removal by the President on the grounds of
incompetence, incapacity or being compromised in the exercise of his duties to the extent
that his ability to give impartial le gal advice is seriously in question.
The Director of Public Prosecutions
99.–(1) There shall be a Director of Public Prosecutions, whose office shall be a public
office.

(2) The Director of Public Prosecutions shall have power in any criminal case in which
he considers it desirable so do–
(a) to institute and undertake criminal proceedings against any person before any court
(other than a court-martial) in respect of any offence alleged to have been committed by
that person;
(b) to take over and continue any criminal proceedings which have been instituted or
undertaken by any other pers on or authority; and
(c) to discontinue at any stage before judge ment is delivered any criminal proceedings
instituted or undertaken by himself or herself or any other person or authority.
(3) The powers conferred on the Director of Public Prosecutions by subsection (2) (b) and
(c) shall be vested in him or her to the ex clusion of any other person or authority and
whenever exercised, reasons for the exercise shall be provided to the Legal Affairs
Committee or Parliament within ten days:
Provided that where any other person or au thority has instituted criminal proceedings,
nothing in this subsection shall prevent the wi thdrawal of those proceedings by or at the
instance of that person or authority and with the leave of the court.
(4) For the purposes of this section, any a ppeal from any judgement in any criminal
proceedings before any court, or any case stat ed or question of law reserved to any other
court for the purpose of any such proceedings, shall be deemed to be part of those
proceedings:
Provided that the Director of Public Pros ecutions shall not exercise the power under
subsection (2) (c) to discontinue proceedings with respect to any appeal by a person
convicted in any criminal proceedings or to a ny case stated or question of law reserved at
the instance of such a person.
Delegation of powers to prosecute
100.–(1) Save as provided in section 99 (3), such powers as are vested in the office of the
Director of Public Prosecutions may be ex ercised by the person appointed to that office
or such other persons in the public service, acting as his or her subordinates and in
accordance with his or her general and specific instructions in accordance with an Act of
Parliament.
(2) Notwithstanding subsection (1)–
(a) the person appointed to the office of Director of Public Prosecutions shall be
accountable to the Legal Affairs Committee of Pa rliament for the exercise of such powers
in his or her own behalf and those powers exercised on his or her behalf by subordinates
in accordance with subsection (1); and

(b) an Act of Parliament shall prescribe restrictions relating to the exercise of powers
under this section by any member of the Malawi Police Force.
Appointment of the Director of Public Prosecutions
101.–(1) Appointment to the office of Director of Public Prosecutions shall be made by
the President subject to satisfying requirements as to competence of the person so
appointed to perform the duties of that office and as to capacity of a person so appointed
to pursue prosecutions independently.
(2) A person appointed to the office of Director of Public Pros ecutions or exercising
powers on behalf of that office shall exerci se those powers and the powers conferred on
him or her by this Constitution or any other law independent of the direction and control
of any authority or person and in strict accordance with the law:
Provided that the Director of Public Pros ecutions or the Attorney General may be
summoned by the Legal Affairs Committee of Parl iament to appear before it to give
account for the exercise of those powers.
Removal of the Director of Public Prosecuti ons 102–(1) The office of the Director of
Public Prosecutions shall become vacant afte r the person holding that office has served
five years or on his or her resignation or retirement whichever is sooner:
Provided that the person holding that office may be appointed for such further terms, not
exceeding five years, as the Pr esident considers appropriate.
(2) A person holding the office of the Director of Public Prosecutions may be removed
from the office by the President before the expi ration of his or her term of office, if the
President is satisfied that the person holding that office is–
(a) is incompetent in the exercise of his or her duties;
(b) is compromised in the exercise of his or he r duties to the extent that his or her ability
to exercise his or her functions im partially is in serious question;
(c) is otherwise incapacitated; or
(d) has attained the age prescribed for retirement.
CHAPTER IX
THE JUDICATURE
The independence and jurisdiction of the courts and the judiciary

103.–(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 a ll issues of judicial nature and shall have
exclusive authority to decide whether an issue is within its competence.
(3) There shall be no courts established of superior or concurrent jurisdiction with the
Supreme Court of Appeal or High Court.
The Supreme Court of Appeal
104.–(1) There shall be a Supreme Court of App eal 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 Cour t and such other courts and tribunals as an
Act of Parliament may prescribe.
Composition of the Supreme Court of Appeal
105.–(1) The Justices of the Supreme Court of Appeal shall be–
(a) the Chief Justice;
(b) such number of other Ju stices of Appeals not being less than three, as may be
prescribed by an Act of Parliament.
(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 of Appeal, not
being less than three.
(3) A Justice of the Supreme Court of Appeal may only be appointed in accordance with
section 111.
Acting Justices of Appeal
106.–(1) If, by reason of a vacancy of office, or by reason of the operation of section
107, there are less than three se rving Justices of Appeal, then the President may, on the
recommendation of the Judicial Service Co mmission, appoint judges of the High Court,
to serve as Acting Justices of Appeal.
(2) An Acting Justice of Appeal shall hold that office only until such time as he or she is
appointed Chief Justice or Justice of Appeal in accordance with section 111, but he or she
shall cease to serve as a Ju stice of Appeal if–

(a) there are more than three serving Justices of Appeal, either by reason of a vacancy or
vacancies being filled in accordan ce with section 111 or where such Justices of Appeal or
Acting Justices of Appeal as have been ex cused from serving on the Supreme Court are
able to resume their duties in accordance with section 107;
(b) he or she is excused from his or her dutie s as a Justice of Appeal or an Acting Justice
of Appeal in accordan ce with section 107.
Relief from duties
107.–(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 Jus tice or Judicial Service Commission considers
would prevent him or her from performing the duties of his or her office.
(2) For the purposes of this section “a party to proceedings” shall include–
(a) any person exercising a judicial function in those proceedings;
(b) having been retained for the purposes of legally represen ting a party to the
proceedings; or
(c) being retained for the purposes of lega l advice to party to the proceedings.
The High Court
108.–(1) There shall be a High Court for th e 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 any law, and any action or
decision of the Government, for conformity with this Constitution, save as otherwise
provided by this Constitution and shall have such other jurisdiction and powers as may be
conferred on it by this Constitution or any other law.
Composition of the High Court
109. The Judges of the High Court shall be such number of judges, not being less than
three, as may be prescribed by an Act of Parliament.
Subordinate courts

110.–(1) There shall be such courts, subordinate to the High Court, as may be prescribed
by an Act of Parliament which shall be presided over by professional magistrates and lay
magistrates.
(2) There shall be an Industrial Relations Court, subordinate to the High Court, which
shall have original jurisdiction over labour di sputes and such other issues relating to
employment and shall have such composition and procedure as may be specified in an
Act of Parliament.
(3) Parliament may make provision for tradit ional local courts presided over by lay
persons or chiefs:
Provided that the jurisdiction of such court shall be limited exclusively to civil cases at
customary law and such minor common law and st atutory civil cases as prescribed by an
Act of Parliament.
Appointment of the Judiciary
111.–(1) The Chief Justice shall be appoint ed by the President and confirmed by the
National Assembly by a majority of two th irds of the members present and voting.
(2) All other judges shall be appointed by the President on the recommendation of the
Judicial Service Commission.
(3) Magistrates and persons appointed to othe r judicial offices shall be appointed by the
Chief Justice on the recommendation of the Judicial Service Commi ssion and shall hold
office until the age of seventy unless re moved in accordance with section 119.
(4) For the purposes of this Chapter “judicial office” means the office of–
(a) a Justice of Appeal or Acting Justice of Appeal;
(b) a Judge of the High Court or Acting Judge of the High Court;
(c) the Registrar or Deputy Registrar of th e Supreme Court of Appeal or High Court;
(d) a magistrate of whatever grade; and
(e) a person presiding over a Traditional Court.
(5) For the purposes of this Chapter “judge” shall mean a Justice of Appeal, an Acting
Justice of Appeal, a Judge of the High Cour t or an Acting Judge of the High Court.
Qualification of Judicial officers
112.–(1) A person shall not be qualified for a ppointment as a judge 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 a legal practiti oner or an advocate or a solicitor in such a
court and has been entitled so to pr actise for not less than ten years.
(2) For the purposes of this section, a person sh all be regarded as entitled to practise as a
legal practitioner or an advocate or a solicitor if that person has been called, enrolled or
otherwise admitted as such and has not been subsequently disbarred or removed from the
roll of legal practitioners or advocates or solicitors notwithstanding that the person–
(a) holds or acts in any office the holder of which is, by reason of his or her office,
precluded from practising in court; or
(b) does not hold a practising cer tificate and has not satisfied any other like condition of
his or her being permitted to practise.
Vacancy
113.–(l) If the office of Chief Justice is vaca nt, or if the Chief Justice is for any reason
unable to perform the functions of his or her 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 th e case may be, those functions shall be
performed by the most senior judge then sit ting on the Supreme Court of Appeal or High
Court.
(2) If any judicial office is vacant or if any judge is appointed to act as Chief Justice, or is
for any reason unable to perform the functions of his or her office, the President, on the
recommendations of the Judicial Service Commission, may appoint a person qualified for
appointment to that judicial office under this section to act in that office.
Remuneration
114.–(1) The Chief Justice and all other holders of judicial office 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 any allowance of a holder of judicial office shall not without his or her
consent be reduced during his or her period of office and shall be increased at intervals so
as to retain its original value and sha ll be a charge upon the Consolidated Fund.
Judicial oath
115. A person holding judicial office shall not enter upon the duties of his or her office
unless that officer has taken and subscribed the oath of allegiance for the due execution

of his or her office in such manner and form as may be prescribed by an Act of
Parliament.
The Judicial Service Commission
116. There shall be a Judicial Service Commission for the regu lation of judicial officers
and which shall have such jurisdiction and powers as may be conferred on it by this
Constitution or, subject to this Constitution, by any Act of Parliament.
Composition
117. The Judicial Service Comm ission shall consist of–
(a) the Chief Justice who shall be the Chairman;
(b) the Chairman of the Civil Service Commi ssion, or such other member as may for the
time being be designated in that behalf by the Chairman of the Civil Service
Commission;
(c) such Justice of Appeal or Judge as may fo r the time being be designated in that behalf
by the President acting after consultation with the Chief Justice; and
(d) such legal practitioner and such magistrate as may for the time being be designated in
that behalf by the President acting after consultation with the Chief Justice.
Powers of the Judicial Service Commission
118. The Judicial Service Commission shall have the authority to–
(a) nominate persons for judicial office;
(b) exercise such disciplinary powers in relati on to persons in judicial office subject to
this Constitution as shall be prescribed by an Act of Parliament, subject to this
Constitution;
(c) recommend, subject to section 119, the rem oval of a person from judicial office;
(d) subject to this Constitution, make such representations to the President as may be
prescribed by an Act of Parliament; and
(e) exercise such other powers as are conferred on it by this Constitution or as are
reasonably necessary for the performance of its duties:
Provided that nothing in this se ction 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 of App eal against that decision.

Tenure of office of Judges
119.–(1) Subject to this section, a person holding the office of Judge shall vacate that
office on attaining the age prescribed in subsection (6):
Provided that the President, after consulta tion with the Judicial Service Commission, may
permit a Judge who has attained that age to co ntinue in office for such period as may be
necessary to enable him to deliver judgement or to do a ny other thing in relation to
proceedings that were commenced before him before he attained that age.
(2) A person holding the office of Judge may be removed from office only for
incompetence in the performance of the duties of his office or for misbehaviour, and shall
not be so removed except in accordance with subsections (3) and (4).
(3) The President may by an instrument under the Public Seal and in consultation with
the Judicial Service Commission remove from office any Judge where a motion praying
for his removal on the ground of incompetence in the performance of the duties of his
office or misbehaviour has been–
(a) debated in the National Assembly;
(b) passed by a majority of the votes of all the members of the Assembly; and
(c) submitted to the President as a petition for the removal of the judge concerned:
Provided that the procedure for the removal of a judge shall be in accordance with the
principles of natural justice.
(4) Where notice of intention to introduce before the National Assembly a motion
praying for the removal of a Judge from his office has been lodged in the office of the
Speaker, the President may, where after c onsultation with the Judicial Service
Commission he is satisfied that it is in th e public interest so to do, suspend the Judge
from performing the duties of his office.
(5) The suspension of a Judge under subsect ion (4) may at any time be revoked by the
President, after consultation w ith the Judicial Service Commission, and shall in any case
cease to have effect where the motion is wit hdrawn before being debated in the National
Assembly or, upon being debated, is not passed by a majority thereof.
(6) The prescribed age for purposes of subsectio n (1) shall be the age of sixty-five years
or such other age as may be prescribed by Parliament:
Provided that a law made by Parliament, to the extent that it alters the age at which a
Judge shall vacate his office, shall not have effect in relation to a Judge after his
appointment unless he consen ts to its having effect.

(7) Where the President considers it desirable in the public interest so to do, he may, with
the consent of the person concerned, assi gn a person holding the office of Judge to any
other office in the public serv ice for such period as the President may determine during
which that person may cease to perform the du ties of his office as Judge; but so, however,
that–
(a) such assignment shall not be regarded as removal of that person under subsection (2)
from his office as Judge;
(b) the resumption by that pers on of the duties of his office as Judge shall not require
formal reappointment;
(c) the retirement age of that person shall be that prescribed for Judges under subsection
(1).
CHAPTER X THE OMBUDSMAN
The Office of the Ombudsman
120. There shall be a public office known as the office of the Ombudsman which shall
have such powers, functions and responsibilit ies as are conferred upon that office by this
Constitution and any other law.
Independence of the Ombudsman
121. In the exercise of his or her powers, functions and duties the Ombudsman shall be
completely independent of the interference or direction of any other person or authority.
Appointment of Ombudsman
122.–(1) Nominations for appointment to the office of Ombudsman shall be received
from the public by way of a public advertis ement placed by the Clerk to the National
Assembly and the successful candidate sha ll be appointed by the Public Appointments
Committee in accordance with the requirements of this section.
(2) The person appointed to the office of Ombudsman shall–
(a) have sufficient knowledge of the law;
(b) be publicly regarded as a person who can make impartial judgements;
(c) have sufficient knowledge of the workings of Government;
(d) not have had any criminal convic tions and not have been a bankrupt;
(e) be otherwise competent and capable of pe rforming the duties of his or her office;

(f) not be the President, Vice-President, a Minister or Deputy Minister, a serving public
officer or a member of Parliament; and
(g) not hold any other public office unless otherwise provided for in this Constitution.
Functions and powers
123.–(1) The office of the Ombudsman may investigate any and all cases where it is
alleged that a person has suffered injustice and it does not appear that there is any remedy
reasonably available by way of proceedings in a court or by way of appeal from a court
or where there is no ot her practicable remedy.
(2) Notwithstanding subsection (1), the pow ers of the office of the Ombudsman under
this section shall not oust the jurisdiction of the courts and the deci sions and exercise of
powers by the Ombudsman shall be reviewable by the High Court on the application of
any person with sufficient interest in a case the Ombudsman has determined.
Powers of investigation
124. The Ombudsman shall have full powers to–
(a) subpoena the attendance of any person w ho the Ombudsman reasonably believes to be
connected with any investigation being undertaken by that office;
(b) require the immediate disclosure of information and the production of documents of
any kind, from any public body;
(c) question any person who the Ombudsman reas onably believes to be connected with
an investigation that is being undertaken by that office; and
(d) initiate contempt proceedings before the Hi gh Court against any person or authority in
connexion with noncompliance with the powers conferred in this section.
Privileges and immunities of the Ombudsman
125. A person holding the office of Ombudsman shall–
(a) be provided with the necessary resources to discharge the functions of that office;
(b) be entitled to the fullest co-operation of any person or authority of whom he or she
requests assistance in connexion with the duties of that office;
(c) enjoy, with respect to his or her official functions, similar protection and privileges
insofar as they are appropriate as are enjoyed by members of Parliament; and

(d) be paid a salary to be charged to the Consolidated Fund and which shall not be
reduced without the consent of the office holder.
Remedies
126. Where the investigations of the Ombudsman reveal suffi cient evidence to satisfy
him or her that an injustice ha s been done, the Ombudsman shall–
(a) direct that appropriate administrative act ion be taken to redress the grievance;
(b) cause the appropriate authority to ensure that there are, in future, reasonably
practicable remedies to redress a grievance;
(c) direct a court to adjudi cate on an issue or on the quantum of compensation; or
(d) refer a case to the Director of Pub lic Prosecutions with a recommendation for
prosecution, and, in the event of a refusal by the Director of Public Prosecutions to
proceed with the case, the Ombudsman shall have the power to require reasons for the
refusal.
Reports of the Ombudsman
127. The Ombudsman shall lay, each year, before the National Assembly a report which
shall include a record of all complaints and applications to the office of Ombudsman, a
record of the exercise of powers in relation to applications, of the remedies afforded to
applicants in respect of grievances and shall also incl ude a record of the general
recommendations of the Ombudsman in respect of grievances.
Removal from office
128.–(1) A person appointed to the office of Ombudsman shall serve a term of not more
than five years, provided that the Pub lic Appointments Committee may appoint that
person for such further terms of five year s as it considers appropriate unless that
Committee sooner terminates that appointme nt in accordance with this section.
(2) A person appointed to the office of Ombudsman shall not be removed by the Public
Appointments Committee, except–
(a) in such circumstances where had that person not been Ombudsman, that person would
have been disqualified from being appointed;
(b) for gross misconduct; or
(c) on reaching the age of sixty-five years.
CHAPTER XI

HUMAN RIGHTS COMMISSION
Establishment of the Human Rights Commission
129. There shall be a Human Rights Commission the primary function of which shall be
the protection and investigation of violations of the rights accorded by this Constitution
or any other law.
Powers
130. The Human Rights Commission shall, with respect to the applications of an
individual or class of persons, or on its ow n motion, have such powers of investigation
and recommendation as are reasonably necessary for the effective promotion of the rights
conferred by or under this Constitution, but shal l not exercise a judicial or legislative
function and shall not be given powers so to do.
Composition
131.–(1) The Human Rights Commission shall consist of–
(a) the person for the time holding the office of Law Commissioner;
(b) the person for the time being holding the position of Ombudsman: Provided that, save
as prescribed by this section, no other memb er of the Human Rights Commission shall be
a person in any public office or the Presiden t or Vice-President, a Minister or Deputy
Minister or a member of Parliament.
(c) such persons as shall be nominated fr om time to time in that behalf by those
organizations that are considered in the absolute discretion of both the Law
Commissioner and the Ombudsman to be reput able organizations representative of
Malawian Society and that are wholly or la rgely concerned with the promotion of the
rights and freedoms guaranteed by this Constitution.
(2) The Law Commissioner and the Ombudsman sh all jointly refer the name of persons
nominated under paragraph (c) of subsection (1) to the President who shall formally
appoint such persons as members of the Human Rights Commission.
(3) A member of the Human Rights Commi ssion, other than a member by virtue of
paragraph (a) or (b) of subsect ion (1), shall continue to be members of the Commission
until such time as they are removed from office on the grounds of–
(a) incompetence;
(b) incapacity; or

(c) in circumstances where the member is compromised to the extent that his or her
ability to impartially exercise the duties of his or her office is seriously in question.
CHAPTER XII
LAW COMMISSION
Establishment of the Law Commission
132. There shall be a Law Commission which sha ll have the power to review and make
recommendations relating to the repeal and amendment of laws and which shall have
such powers and functions as are conferred on it by this Constitution and any other Act of
Parliament.
Composition
133. The Law Commission shall consist of–
(a) a permanent, salaried Law Commissioner who shall be appointed by the President on
the recommendation of the Judicial Serv ice Commission and who shall be a legal
practitioner or a person qualif ied to be a judge; and
(b) such number of other persons as th e Law Commissioner in consultation with the
Judicial Service Commission may appoint from time to time and for such time as they are
required on account of their expert knowledge of a matter of law being then under review
by the Law Commissioner, or on account of their expert knowledge of other matters
relating to a legal issue be ing then under review.
Removal of the Law Commissioner
134. The President may remove the Law Commi ssioner or other person appointed to the
Law Commission on the recommendation of th e Judicial Service Commission if the
Judicial Service Commission is satisfied that the Law Commissioner or such other person
appointed to the Law Commission, as the case may be, is not competent or otherwise
incapacitated so as to be unable to perfor m the functions of his or her office.
Powers and functions of the Law Commission
135. The Law Commission shall have the powers–
(a) to review and make recommendations regarding any matter pertaining to the laws of
Malawi and their conformity with this Constitution and applicable international law;
(b) to review and make recommendations regarding any matter pertaining to this
Constitution;

(c) to receive any submissions from any person or body regarding the laws of Malawi or
this Constitution; and
(d) to report its findings and recommendatio ns to the Minister for the time being
responsible for Justice who shall publish any su ch report and lay it before Parliament.
Independence of the Law Commission
136. The Law Commission shall exercise its functions and powers independent of the
direction or interference of a ny other person or authority.
CHAPTER XIII
NATIONAL COMPENSATION TRIBUNAL
The National Compensation Tribunal
137. There shall be a National Compensation Tribunal which shall entertain claims with
respect to alleged criminal and civil liability of the Government of Malawi which was in
power before the appointed day and which shal l have such powers and functions as are
conferred on it by this Constitution and an Act of Parliament.
Exclusive original jurisdiction
138.–(1) No person shall institute proceedings against any Government in power after
the commencement of this Constitution in respec t of any alleged criminal or civil liability
of the Government of Malawi in power before the commencement of this Constitution
arising from abuse of power or office, save by application first to the National
Compensation Tribunal, which shall hear ca ses initiated by persons with sufficient
interest.
(2) The National Compensation Tribunal shall ha ve all powers of investigation necessary
to establish the facts of any case before it.
(3) Notwithstanding subsection (1), the Nati onal Compensation Tribunal shall have the
power to remit a case for determination by the ordinary courts where the National
Compensation Tribunal is satisfied that the Tribunal does not have jurisdiction, or where
the Tribunal feels it is in the interest of justice so to do.
Composition
139.–(1) There shall be a Chairman of the Na tional Compensation Tribunal who shall be
a judge and who shall–
(a) be appointed in that be half by the Chief Justice on th e nomination of the Judicial
Service Commission; and

(b) hold the office of Chairman of the National Compensation Tribunal for not more than
three years or until such time as that person ceases to be a judge whichever is sooner.
(2) The Chairman of the National Compensation Tribunal shall be assisted by two
assessors, who shall be–
(a) a certified public accountant who shall be nominated and appointed by the Public
Appointments Committee to supervise the accounts of the National Compensation Fund
and to advise the Tribunal as to the quantu m of compensation payable with respect to any
claim taking into account the overall number of claims being put before the Tribunal in
that financial year; and
(b) a legal practitioner who shall be nominate d and appointed from time to time in that
behalf by the Public Appointments Committee to act as legal representative for any party
claiming compensation from the Tribunal and who is unrepresented by legal counsel.
(3) An assessor may be removed by the Public Appointments Committee on the grounds
of incapacity or incompetence in the exercise of his or her duties or of being so
compromised as to be unable to pr operly perform his or her duties.
Procedure
140.–(1) Parliament shall prescribe such rules of procedure of the National
Compensation Tribunal as shall ensure the expeditious disposal of cases, which may
include an informal prelimin ary arbitration procedure.
(2) Notwithstanding subsection (1), the pr ocedures of the National Compensation
Tribunal shall–
(a) conform to the standards of proof required for a normal civil court; and
(b) conform with the standards of justice set out in this Constitution and the principles of
natural justice.
Protection of third party rights
141. Where a third party disputes a claim or has an interest in money or property that is
the subject of a claim before th e National Compensation Tribunal–
(a) that party shall be given adequate notification;
(b) that party shall be entitled to legal representation; and
(c) if the Chairman of the National Compensa tion Tribunal is satisfied that the person is
of insufficient means to retain legal counsel, legal assistance shall be provided at the
expense of the State.

Jurisdiction of ordinary courts
142.–(1) The High Court shall not be excluded from hearing applications for judicial
review of the decisions of the Tribunal nor shall a determination by the Tribunal be a bar
to further criminal or civil proceedings in an appropriate court against a private person for
the duration of the ex istence of the fund.
(2) A “private person” for the purposes of this section means a person who was before the
commencement of this Constitution a member of the Government or of an agent of the
Government, who would, under the laws then in force, have been personally liable for an
act that is the subject of the criminal or civil proceedings.
Power to waive statutory limitations
143. For the purposes of pursuing claims befo re the National Compensation Tribunal and
criminal and civil proceedings against a priv ate person within the meaning of subsection
142 (2), any statutory time limitation may be waived by the Tribunal or by a court if it
seems to the Tribunal or the court equitable to do so.
National Compensation Fund
144.–(1) There shall be a National Compensatio n Fund which shall be a trust vested in
the Republic.
(2) The National Compensation Fund shall be us ed exclusively for the purposes assigned
to it by this Constitution and shall–
(a) be a trust the purpose of which shall be for the exclusive benefit of those applicants to
the National Compensation Tribunal who have been granted any award, gratuity, pension
or other allowance according to the principl es, procedures and rules of the National
Compensation Tribunal;
(b) be held in a separate account with in the Reserve Bank of Malawi; and
(c) have all of its reports, financial statements and informa tion relating to its operation
published and maintained for public scrutiny.
(3) subject to this Chapter, the only charge s on, or disbursements to be made from, the
National Compensation Fund shall be by–
(a) the National Compensation Tribunal; or
(b) the trustees of the Fund in sofar as such disbursements or charges are necessary and
prudent for the efficient operation of the Fund in accordance with its purpose as declared
in this subsection.

(4) There shall be not less than four trustees of the National Compensation Fund who
shall be appointed from time to time by the Public Appointments Committee on the
recommendation of the National Compensation Tribunal.
(5) A Trustee shall hold office for the durat ion of the Fund unless and only in such
circumstances as that trustee is remove d by the Public Appointments Committee on the
grounds of–
(a) incompetence;
(b) incapacity; or
(c) being compromised in the exercise of his or her functions to the extent that his or her
financial probity is in serious question.
(6) Trustees of the National Compensati on Fund shall exercise their functions
independent of any direction or interference by any body or authority, save as is provided
by this section.
(7) The Auditor General shall make an annua l report, to be laid before the National
Assembly, on the conduct and status of the Fund which shall provide guidance to the
National Assembly for voting an appropriation for the purposes of the National
Compensation Fund.
(8) An appropriation for the purposes of the National Compensation Fund shall be laid
before the National Assembly by the Minister responsible for Finance before the
beginning, and with respect to, every fina ncial year during the life of the Fund.
(9) With respect to any financial year, the Tribunal shall prescrib e a period not being
more than six months after the commencemen t of that financial year, after which the
Tribunal shall not receive appl ications for compensation with in that financial year from
the National Compensation Fund.
Winding up of the National Compensation Fund
145.–(1) The National Compensation Fund shall ceas e to be charged with new claims for
compensation not later than ten years afte r the commencement of this Constitution at
which time the National Compensa tion Tribunal shall dissolve.
(2) If, with respect to any year within the period prescribed in subsection (1), and after
the second year of it coming into existence, less than ten applications are made to the
National Compensation Tribunal, then the Chairman of the Tribunal may direct the
Minister responsible for Fi nance to lay before the National Assembly a Bill–
(a) to dissolve the National Compensation Tribunal; and

(b) to confer on the High Court jurisdiction equivalent to that of the National
Compensation Tribunal to determine claims ag ainst the Government within the meaning
of this Chapter.
(3) Where the National Compensation Tribunal has been dissolved, for the remaining
duration of the period prescribed in subsect ion (1) the uncommitted residue of the Fund
shall remain a separate fund within the account s of the Consolidated Fund which shall be
drawn upon by the Minister responsible for Fi nance in respect of awards made by the
High Court in relation to clai ms that would otherwise have been determined by the
National Compensation Tribunal.
(4) The National Compensation Fund shall cont inue until there is no longer a committed
residue.
CHAPTER XIV
LOCAL GOVERNMENT
Functions of local government authorities
146.–(1) There shall be local government author ities which shall have such powers as are
vested in them by this Constitution and an Act of Parliament.
(2) Local government authoritie s shall be responsible for the representation of the people
over whom they have jurisdiction, for their welfare and shall have responsibility for–
(a) the promotion of infrastructural and economic development, through the formulation
and execution of local development plans and the encouragement of business enterprise;
(b) the presentation to central government authorities of local development plans and the
promotion of the awareness of local issues to national government;
(c) the consolidation and promotion of local democratic institutions and democratic
participation; and
(d) such other functions, including the registration of birth and deaths and participation in
the delivery of essential and local servi ces, as may be prescribed by any Act of
Parliament.
(3) Parliament shall, where possible, pr ovide that issues of local policy and
administration be decided on at local level under the supervision of local government
authorities.
(4) Parliament shall ensure that the compos ition of local government authorities affords
equal representation in respect of each ward within its jurisdiction and that the boundaries

of each ward shall be designated by the Electoral Commission in accordance with section
148.
Composition of local government authorities
147.–(1) Local government authorities shall c onsist of local government officers who
shall be elected by free, secret and equal su ffrage under the supervision of the Electoral
Commission by the registered voters in the area over which that local government
authority is to have jurisdiction.
(2) The offices of local government shall in clude mayors in cities and municipalities and
local councillors in all areas and local government officers shall have such functions,
powers and responsibilities as shall be laid down by an Act of Parliament.
(3) There shall be, in respect of each local government au thority, such administrative
personnel, subordinate to local government offi cers, as shall be required to execute and
administer the lawful resolutions and policies of those officers.
Jurisdiction of local government authorities
148.–(1) Subject to the recommendations of the Electoral Commission, and in
accordance with the principles laid down in this Constitution and any other law relating
to national elections, there shall be drawn boundaries for local government authorities.
(2) Any boundaries determining the territorial jurisdiction of any local government
authority shall be geographical only, without reference to race, colour, tribe or ethnic
origin of the inhabitants of the area.
National Local Government Finance Committee, its establishment, powers and functions
149.–(1) There shall be a National Local Government Finance Committee which shall
hear submissions from each and every local government authority in respect of estimates
of expenditure and requests for special disb ursements and shall have such other powers
and functions as may be conferred on it by this Constitution or an Act of Parliament.
(2) The National Local Government Finan ce Committee shall have the power to–
(a) receive all estimates of revenue and all projected budgets of all local government
authorities;
(b) supervise and audit accounts of local gove rnment authorities, in accordance with any
Act of Parliament, Assembly, subject to th e recommendations of the Auditor General;
(c) make recommendations relating to the distribution of funds allocated to local
government authorities, and vary the amount pa yable from time to time and area to area

according to, and with sole consideration of, economic, geographic and demographic
variables;
(d) prepare a consolidated budget for all local government au thorities and estimates after
consultation with the Treasury, which shall be presented to the National Assembly by the
Minister responsible for Local Government before the commencement of each financial
year; and
(e) make application to that Minister for supplementary funds where necessary.
Duty to provide adequate exercises for local government functions
150. The Government shall be under a duty to en sure that there is adequate provision of
resources necessary for the proper exercise of local government functions and to this
effect shall allow a local government author ity to keep such proportion of the revenue
collected by that authority as shall be prescribed by the National Local Government
Finance Committee.
Composition of the National Local Government Finance Committee 151.–(1) The
members of the National Local Govern ment Finance Committee shall be–
(a) one person who shall be nominated from tim e to time in that behalf by a caucus of
local government authorities;
(b) the Principal Secretary for Local Government;
(c) one person who is a professionally quali fied and practising accountant appointed by
the Public Appointments Committee on the re commendation of the Minister responsible
for Local Government;
(d) the Chairman of the Civil Service Comm ission or such member of that Commission
as shall be nominated by the Chairman fr om time to time in that behalf; and
(e) one person who shall be nominated from tim e to time in that behalf by the Electoral
Commission.
(2) Except for persons who are or become members of the Local Government Finance
Committee by virtue of holding office as Principal Secretary for Local Government or by
Chairman or member of the Civil Service Co mmission, the term of office of a member of
the National Local Government Finance Committee shall expire–
(a) three years after the date that member was first appointed; or
(b) on removal by the President on the reco mmendation of the Public Appointments
Committee, but no member shall be recomm ended for removal under this paragraph
unless the Public Appointments Committee is satisfied that he or she is–

(i) not competent to exercise the duties of that office;
(ii) compromised to the extent that his or her financial probity is in serious question; or
(iii) otherwise incapacitated.
CHAPTER XV
THE POLICE
The Malawi Police Force 152. There shall be a Malawi Police Force which shall be
constituted by an Act of Parliament that sha ll specify the various divisions and functions
of the Malawi Police Force.
Powers and functions of the Police
153.–(1) The Malawi Police Force shall be an independent organ of the executive which
shall be there to provide for the protection of public safety and the rights of persons in
Malawi according to the prescriptions of this Constitution and any other law.
(2) The Malawi Police Force shall enjoy onl y such powers as are necessary for the
protection of rights under this Constitution and the maintenance of public safety and
public order in accordance with the prescrip tions of this Constitution and the law.
(3) In the exercise of their functions, members of the Malawi Police Force shall be
subject to the direction of th e courts and shall be bound by th e orders of such courts.
(4) Political responsibility for the Malawi Police Force sh all vest in a Minister of the
Government who shall ensure that the disc ipline and conduct of the Malawi Police Force
accords with the prescriptions of th is Constitution and any other law.
The Inspector General of Police
154.–(1) There shall be an Inspector General of Police who shall be the Head of the
Malawi Police Force whose office shall be a public office and also shall be accountable
to the Minister responsible for the Police and whose office shall be a public office.
(2) The Inspector General of Police shall be appointed by the President, but the Public
Appointments Committee may at any time inquire as to the competence of the person so
appointed to carry out th e duties of that office and as to such other questions as may have
direct bearing on the performance of the duties of that office.
(3) The office of the Inspector General of Police shall become vacant after the person
holding that office has served for five years, but the person holding that office may be
nominated for such further terms, not exceeding five years, as the President may deem
appropriate.

(4) A person holding the office of Inspector General of Police shall be subject to removal
by the President only by reas on of that person being–
(a) incompetent in the exercise of his or her duties;
(b) compromised in the exercise of his or her duties to the extent that his or her capacity
to exercise his or her powers impa rtially is in serious question;
(c) otherwise incapacitated; and
(d) over the age prescribed for retirement.
(5) Subject to subsection (4), in the exercise of the duties and powers vested in the office
of the Inspector General of Police by the Constitution or any other law, the person
holding that office shall not be subject to the direction or control of any other person or
authority, other than as prescribed in this Constitution or an Act of Parliament.
(6) The Inspector General of Police may delega te such powers as are conferred on him or
her by this Constitution or by an Act of Parliament to such other persons or authorities,
being part of the Malawi Police Force, as he or she may consider appropriate.
(7) With respect to any powers under this sec tion, the Inspector General of Police shall
notify the Police Service Commission of any delegation and the Police Service
Commission may prescribe any regulations it considers appropriate in relation to the
manner and form of reports that the person exercising that power shall make and shall
specify such restrictions as may be required to ensure the proper exercise of the powers
delegated under this section in accordance with the law.
The Police Service Commission
155.–(1) There shall be a Police Service Comm ission with such powers and functions as
are conferred upon it by this Constitution or an Act of Parliament.
(2) Subject to this Constitution, power to appoin t persons to hold or act in offices in the
Malawi Police Force other than that of Insp ector General of Police, including the power
to confirm appointments, and to remove such persons from office shall vest in the Police
Service Commission.
(3) The Police Service Commission shall, subject to this Constitu tion and any general
directions of an Act of Parliament, exerci se disciplinary control over persons holding or
acting in any office to which this section applies.
Power to delegate
156.–(1) The Police Service Commission, may, subj ect to such conditions as may be laid
down by an Act of Parliament, delegate power s conferred by this Constitution or an Act

of Parliament by directions in writing to any member of the Commission or to any public
officer or public body.
(2) Where any person or body may from time to time exercise powers under this section
on behalf of the Police Service Commission in accordance with subsection (1), the Police
Service Commission shall–
(a) require that person or body to furnish reports in such manner or form as the
Commission may prescribe in the directio ns which delegated those powers; and
(b) hear such complaints or appeals from pe rsons with sufficient interest relating to the
exercise of powers delegated under this section and shall have the authority to–
(i) quash the decision of a person or body exercising such powers;
(ii) exercise such disciplinary powers in re lation to such person or body, subject to the
conditions laid down by an Act of Parliament; and
(iii) revoke directions delegating powers to any person or body:
Provided that nothing in this section shall prejudice the right of any person who is the
subject of a decision made by or on behalf of the Police Service Commission to appeal to
the High Court or the right of any person with sufficient interest in such a decision to
petition the High Court for judici al review of that decision.
Composition 157.–(1) The Police Service Comm ission shall consist of the following
members–
(a) such Justice of Appeal or Judge as may fo r the time being be nominated in that behalf
by the Judicial Service Commission and who sh all be the Chairman of the Police Service
Commission;
(b) such member of the Civil Service Commission as may for the time being be
nominated in that behalf by the Civil Service Commission;
(c) the Inspector General of Police or such se nior officer in the Malawi Police Force as
the Inspector General may for the time being nominate in that behalf;
(d) the Ombudsman; and
(e) such legal practitioner as may for the time being be nomin ated in that behalf by the
President and confirmed by the P ublic Appointments Committee.
(2) Any three members of the Police Se rvice Commission shall form a quorum.

(3) A person shall not be qualified for appointment as a member of the Police Service
Commission if he or she is Pr esident, Vice- President, a Minister or Deputy-Minister, a
Member of Parliament or a police officer.
(4) Subject to this section, the office of a member of th e Police Service Commission shall
become vacant–
(a) at the expiration of three years from the date of that person’s appointment, unless
reappointed to a new three year term:
Provided that this paragraph shall not apply where the member in question still holds the
office of Inspector General of Police or of Ombudsman, or other office in which behalf
that person was appointed to the Police Service Co mmission; or
(b) if any circumstances arise that, if that person were not a member of the Police Service
Commission, would cause that person to be disqualified from appointment as such.
Political independence of the Malawi Police Force
158.–(1) Members of the Malawi Police Force shall ensure that they exercise their
functions, powers and duties as impartial servants of the general public and the
Government of the day.
(2) No member of the Malawi Police Force sh all be permitted to participate directly in
political activities:
Provided that–
(a) any member of the Malawi Police Force of Malawi shall have the right to resign in
order to participate directly in political activities;
(b) nothing in this section shall be deemed to prejudice any member of the Malawi Police
Force having the absolute right to vote in accordance with this Constitution; and
(c) nothing in this subsection shall prejudice the right of any member of the Malawi
Police Force to hold office in or be a member of any association, group or professional
body, the purposes of which are principally to represent their members interests in
relation to the terms and conditions of empl oyment or the general carrying on of any
profession or trade or the pr omotion of any interest, not pertaining directly to the
promotion of a political party, campaign or ph ilosophy or otherwise inconsistent with the
functions of the Malawi Police Force.
(3) No government or political party shall cau se any member of the Malawi Police Force
acting in that behalf to exercise functions, powers or duties for the purposes of promoting
or undermining the interests or affairs of any pol itical party or individual member of that

party, nor shall any member of the Malawi Police Force, acting in that behalf, promote or
undermine any party or individual member of that party.
(4) No government or political party shall cau se any member of the Malawi Police Force,
acting in that behalf, to deploy resources, whet her they be financial, material or human
resources, for the purposes of promoting or undermining any political party or member of
a political party or interest group, nor shal l any member of the Malawi Police Force,
acting in that behalf, cause such deployment:
Provided that nothing in this se ction shall be construed as derogating from the duty of the
Police to uphold the rights and afford protec tion to all political parties, persons and
organizations equally, without fear or favour, in accordance with this Constitution and
subject to any law.
(5) Any member of the Malawi Police Force wh o contravenes this section shall be subject
to such disciplinary measures as the Po lice Service Commission considers appropriate,
taking into account the gravity and circumstan ces of the contravention, subject to such
regulations as may be prescrib ed by an Act of Parliament.
(6) Where the Police Service Commission is sati sfied that a government or political party
or member of a political party has acted in contravention of subsection (3) or subsection
(4) the Police Service Commission may initiate proceedings before the High Court for
punitive damages and, in the case of a contraven tion of subsection (4), for the recovery of
such resources or sums equivalent to the benefit of the enjoyment of those resources from
the government, or political party or member of a political party who has so benefitted, as
the case may be.
CHAPTER XVI
THE DEFENCE FORCES
The Defence Forces of Malawi
159. There shall be no military force constitute d in Malawi other than the Defence Forces
of Malawi provided for and regulated by this Chapter.
Constitutional position of the Defence Forces of Malawi 160.–(1) The Defence Forces of
Malawi shall operate at all times under the direction of those civil authorities in whom
this Constitution vests su ch power, and shall–
(a) uphold the sovereignty and territorial integrity of the Republic and guard against
threats to the safety of its citizens by force of arms;
(b) uphold and protect the constitutional or der in the Republic and assist the civil
authorities in the proper exercise of their functions under this Constitution;

(c) provide technical expertise and resources to assist the civilian authorities in the
maintenance of essential services in times of emergency; and
(d) perform such other duties outside the territo ry of Malawi as may be required of them
by any treaty entered into by Malawi in accord ance with the prescriptions of international
law.
(2) No person or authority may direct or de ploy the Defence Forces of Malawi to act in
contravention of this Constitution.
Responsibility for the Defence Forces of Malawi
161.–(1) The ultimate responsibility for the Defe nce Forces of Malawi shall vest in the
President as Commander-in-Chief.
(2) Any power conferred on the President by virtue of this Chapter shall only be
exercised on the recommendation of an Ar my Council which shall be constituted under
an Act of Parliament and which shall include the Minister responsible for Defence and
the High Command of the Defence Forces of Malawi and which shall have–
(a) the power to determine the operational use of the Defence Forces of Malawi;
(b) the power to appoint and remove from offi ce senior officers and other members of the
Defence Forces of Malawi; and
(c) such other powers and duties as may be prescribed by an Act of Parliament.
(3) All powers conferred in subsection (2) shall be exercised subject to the scrutiny of a
Defence and Security Committee of the Nati onal Assembly established by section 162.
(4) The Army Council may, by directions in wr iting and subject to such conditions as
may be laid down by an Act of Parliament or are adopted by the National Assembly on
the recommendation of the Defence and Secu rity Committee of the National Assembly,
delegate to any member of the Defence For ces of Malawi any of the powers conferred on
the Army Council by an Act of Parliament.
The Defence and Security Committee of the National Assembly
162.–(1) There shall be a Defence and Secu rity Committee of the National Assembly
which shall represent proportio nally the political parties having seats in the National
Assembly, and shall have such powers and f unctions as may be conferred upon it by this
Constitution and an Act of Parliament.
(2) The Defence and Security Committee may be assembled at any time, notwithstanding
that Parliament stands adjourned and, where Parliament stands dissolved, shall continue
to be constituted until such time as a new session Parliament begins and a new Defence

and Security Committee is appointed but no member shall otherwise hold office for more
than one year.
CHAPTER XVII
PRISONS
The Malawi Prison Service
163. The Malawi Prisons Service shall consist of all penal institutions, labour camps,
special and secure schools and other institutio ns that are used to house, detain and
rehabilitate persons sentenced to imprisonmen t in whatever form such imprisonment may
take, but shall not include holdi ng cells in police stations.
The Chief Commissioner for Prisons
164.–(1) There shall be a Chief Commissioner for Prisons who shall be responsible for
the Malawi Prisons Service and whose office shall be a public office with such powers,
functions and duties as are conferred on it by th is Constitution and an Act of Parliament.
(2) The principal responsibilities of the Chief Commissione r for Prisons shall be to
ensure the proper and efficient administration of the penal institutions that comprise the
Malawi Prisons Service, subjec t to and in accordance with–
(a) the protection of rights and other provisions of this Cons titution or any other law;
(b) the recommendations of the Prisons Se rvice Commission and the Inspectorate of
Prisons in accordance with an Act of Parliament; and
(c) the directions of the courts in relation to persons convicted by the courts to a sentence
of incarceration or penal servitude within a penal institution, or incarcerated by the courts
pending execution of the sentence of the c ourts, or awaiting sentence by the courts or
otherwise on remand to the custody of the Prison s Service or being held on behalf of the
Malawi Police Force in connexion with any law.
(3) Save as provided in this section, in the ex ercise of the duties and powers vested in the
office of the Chief Commissioner for Prisons by this Constitution or any other law, the
person holding that office shall not be subjec t to the direction or control of any other
person or authority, other than as prescrib ed in this Constitution and an Act of
Parliament.
Power to delegate
165.–(1) The Chief Commissioner for Prisons may delegate the powers conferred on him
or her by this Constitution or an Act of Parlia ment to such persons or authorities, being
part of the Malawi Prisons Service, as he or she considers appropriate.

(2) With respect to the delegation of powers in subsection (1)–
(a) the Chief Commissioner for Prisons shall notify the Prisons Service Commission and
the Inspectorate of Prisons of any such delegation; and
(b) the Prisons Service Commission or, as the case may be, the Inspectorate of Prisons
may–
(i) prescribe any regulations it considers appropriate in relation to the manner and form of
reports that the person or authority ex ercising that power shall make; and
(ii) shall prescribe such restrictions as may be required to ensure the proper exercise of
powers delegated unde r this section.
Appointment of the Chief Commissioner for Prisons
166.–(1) The Chief Commissioner for Prisons shall be appointed by the President, but
the Public Appointments Committee may at any time inquire as to the competence of the
person so appointed to carry out the duties of that office and as to such other questions as
may have direct bearing on the performa nce of the duties of that office.
(2) The office of the Chief Commissioner for Prisons shall become vacant after the
person holding that office has served for five years, provided that the person holding that
office may be appointed for such further term , not exceeding five years, as the President
considers appropriate.
(3) A person holding the office of Chief Comm issioner for Prisons shall be subject to
removal by the President only by reason of that person being–
(a) incompetent in the exerci se of his or her duties;
(b) compromised in the exercise of his or her duties to the extent that his or her capacity
to impartially exercise the duties of that office is in serious question;
(c) otherwise incapacitated; or
(d) over the age prescribed for retirement.
The Prison Service Commission 167.–(1) There shall be a Prisons Service Commission
with the powers and functions conferred on it by this Constitution and by an Act of
Parliament.
(2) The Prisons Service Commission shall have the power to appoint persons to hold or
act in offices in the Prison Service of Ma lawi, other than the Chief Commissioner for
Prisons, including the power to confirm appoi ntments and to remove such persons from
office.

(3) The Prisons Service Commission shall, subject to this Constitution and any Act of
Parliament, exercise disciplinary control over persons holding or acting in any office to
which this section applies.
(4) The Prison Service Commission may, subject to such conditions as may be laid down
by an Act of Parliament, delegate powers under this section by directions in writing to
any member of the Commission or to any public officer or public body, being part of the
Malawi Prisons Service.
(5) Where any person or body may, from time to time, exercise powers under this section
on behalf of the Prisons Service Commission, in accordance with subsection (4), the
Prisons Service Commission shall–
(a) require that person or body to furnish reports in such manner or form as the
Commission has specified in the directions by which it delegated those powers;
(b) hear such complaints or appeals from pe rsons in sufficient interest relating to the
exercise of powers under this section and shall have the authority to–
(i) quash the decision of a person or body exercising such powers;
(ii) exercise such disciplinary powers with re lation to such person or body, subject to the
conditions laid down by an Act of Parliament;
(iii) revoke directions delegating powers to any person or body:
Provided that nothing in this section shall prejudice the right of any person who is the
subject of a decision made by or on behalf of the Prisons Service Commission to appeal
to the High Court or the right of any person with sufficient in terest in such a decision to
petition the High Court for judici al review of that decision.
Composition of the Prison Service Commission
168.–(1) The Prisons Service Commission shal l consist of the following members–
(a) such Justice of Appeal or Judge as may for the time being be nominated in that behalf
by the Judicial Service Commi ssion, who shall be chairman;
(b) such member of the Civil Service Commission as may for the time being be
nominated in that behalf by the Civil Service Commission;
(c) such legal practitioner as may for the time being be nominated by the President
subject to confirmation by the Public Appointments Committee;
(d) such person as may be nominated from time to time in that behalf by the Inspectorate
of Prisons; and

(e) the Chief Commissioner for Prisons or a person nominated by the Chief
Commissioner of Prisons from time to time in that behalf, being a senior member of the
Malawi Prisons Service.
(2) A person shall not be qualified for appoint ment as a member of the Prisons Service
Commission if he or she is Pres ident, Vice- President, a Minister or Deputy-Minister, or a
member of Parliament.
(3) Subject to this section, the office of a member of the Prisons Service Commission
shall become vacant–
(a) at the expiration of three years from the da te of that member’s appointment, unless the
member is reappointed to a further term not exceeding three years; or
(b) if any circumstances arise that, if that member were not a member of the Prisons
Service Commission, would cause that member to be disqualified from appointment as
such:
Provided that paragraph (a) sh all not apply where the member in question still holds the
office of Chief Commissioner for Prisons, in which behalf that person was appointed to
the Prisons Service Commission.
The Inspectorate of Prisons
169.–(1) There shall be an Inspectorate of Prisons which shall have such powers,
functions and duties in relation to the Malawi Prisons Service of as are conferred on it by
this Constitution or an Act of Parliament.
(2) The Inspectorate of Prisons shall ex ercise its powers, functions and duties
independent of any direction or interf erence by any other person or authority.
(3) The Inspectorate of Prisons shall–
(a) be charged with monitoring the conditions , administration and general functioning of
penal instructions taking due account of applicable international standards;
(b) have such powers as shall be required for it to make investigations and shall have the
power to require any person to answer questions relating to such subjects as are relevant
to those investigations;
(c) have the power to visit a ny and all institutions within th e Malawi Prisons Service with
or without notice and without let or hindrance; and
(d) exercise such other powers as may be prescribed by an Act of Parliament.

(4) The Inspectorate of Prisons shall cause to be laid before the National Assembly such
reports as the Inspectorate of Prisons may make and such repo rts shall be so laid through
the Minister responsible for Prisons in the form of a motion for acceptance of the
recommendations of the Inspectorate of Prisons.
(5) Where the recommendations of the Inspecto rate of Prisons require amendment to any
law, the Minister shall lay before Parliament those recommendations in the form of a Bill.
(6) The powers conferred on the Inspectorate for Prisons by this secti
on shall also be
exercisable by the Inspectorate of Prisons with respect to holding cells in police stations.
Composition of the Inspectorate of Prisons
170.–(1) The Inspectorate of Prisons sha ll consist of the following members–
(a) such Justice of Appeal or Judge as shall from time to time be nominated in that behalf
by the Judicial Service Commission, who shall be chairman;
(b) the Chief Commissioner for Prisons or such person as he or she may nominate in that
behalf being a senior member of the Malawi Prisons Service;
(c) such member of the Prisons Service Commission, other than the Chief Commissioner
for Prisons, as shall from time to time be nomi nated in that behalf by that Commission;
(d) such Magistrate as shall from time to time be nominated in that behalf by the Judicial
Service Commission; and
(e) the Ombudsman.
(2) The Inspectorate of Prisons shall have power to co-opt persons as representatives of
any local or international or ganizations having an office in Malawi involved in the
monitoring of human rights or more generally concerned with the welfare of offenders as
may be approved of by the membership of the Inspectorate of Prisons.
CHAPTER XVIII
FINANCE
Revenue 171. No tax, rate, duty, levy or imposition shall be raised, levied or imposed by
or for the purposes of the Government or any local government authority otherwise than
by or under the authority of the law.
The Consolidated Fund

172. All revenues or other moneys raised or received for the purposes of the Government
shall, subject to this Constitution and any Act of Parliament, be paid into and form one
Fund, to be known as the Consolidated Fund.
Withdrawal of money from the Consolidated Fund
173.–(1) No money shall be withdrawn from the Consolidated Fund except–
(a) to meet expenditure that is charged upon the Fund by this Constitution or by any Act
of Parliament consistent with this Constitution; or
(b) where the issue of those moneys has been authorized by an Appropriation Act, a
supplementary Appropriation Act or by an Act made in pursuance of subsection (5) or of
sections 178, 179, 180, 181 or 182 or by a resolu tion of the National Assembly made in
accordance with section 177:
Provided that this subsection sh all not apply to any sums mentioned in section 175 (3).
(2) Where any moneys are charged by this Constitution or by any Act of Parliament upon
the Consolidated Fund, they shall be paid out of that Fund by the Minister responsible for
Finance to the person or authority to whom the payment is due.
(3) No moneys shall be withdrawn from the Consolidated Fund except in the manner
prescribed by the National Assembly.
(4) The investment of moneys forming part of the Consolidated Fund by way of deposit
with a bank or such other secure investment as may be approved by the National
Assembly shall not be regarded as a withdraw al of those moneys from the Consolidated
Fund for the purposes of this Constitution.
(5) Notwithstanding subsection (1), provisi ons may be made by or under an Act of
Parliament authorizing withdrawals to be made from the Consolidated Fund, in such
circumstances and to such extent as ma y be prescribed by or under such Act of
Parliament, for the purpose of making allowances to persons or authorities other than the
Government:
Provided that–
(a) no moneys shall be advanced from the C onsolidated Fund under this subsection save
on condition that they are repayable by the pers on or authority to whom or on behalf of
whom they are advanced; and
(b) this section shall not apply with respect to–
(i) the proceeds of Government loans rais ed for a specific purpose under an Act of
Parliament;

(ii) money or interest received by the Government subject to a trust;
(iii) advance drawings and repayments of those drawings, author ized by the National
Assembly; and
(iv) such special funds under this Constituti on where it is specified that this section
should not apply.
Expenditure charged on the Consolidated Fund
174.–(1) There shall be charged on the Conso lidated Fund in addition to any grant,
remuneration or other moneys so charged by this Constitution or any Act consistent with
this Constitution–
(a) all debt charges for which the Government is liable;
(b) all pensions, compensations for loss of office and gratuities for which the Government
is liable;
(c) any moneys required to satisfy any j udgement, decision or award made or given
against the Government by any court or tribunal other than those provided for in the
National Compensation Fund; and
(d) all moneys or debt charges charged be fore the appointed day upon the revenues or
public funds of Malawi.
(2) For the purposes of this section, “d ebt charges” includes interest, sinking fund
charges, the repayment or amortization of debt , and all expenditure in connexion with the
raising of loans on the securi ty of the Consolidated Fund and the service and redemption
of debt thereby created.
Annual estimates
175.–(1) The Minister responsible for Finance shall lay before the National Assembly a
statement of the estimated receipts and the e xpenditure of the Government in respect of
that financial year, other than the sums specified in subsection (3).
(2) The statement of estimates shall be laid before the National Assembly in respect of
every financial year and shall be so laid befo re the commencement of that financial year.
(3) Where the National Assembly does not propos e to debate the estimates until after the
commencement of the financial year to which they relate, the estimates of the revenue
may be laid before the National Assembly at any time before the commencement of such
debate.
(4) The estimates of expenditure shall show separately–

(a) the total sums required to meet the expenditure charged on the Consolidated Fund;
and
(b) the sums respectively required to meet th e heads of other expenditure proposed to be
met from the Consolidated Fund.
(5) The sums to be shown in the estimates of receipts and expenditure shall not include–
(a) sums representing the proceeds of any lo an raised by the Government for a specific
purpose and appropriated for that purpose by the Act authorizing the raising of the loan;
(b) sums representing any money or interest on money received by the Government
subject to a trust and to be held or applied in accordance with the terms of that trust;
(c) sums representing moneys authorized to be advanced from the Consolidated Fund
under an Act of Parliament and repayments thereof; and
(d) sums representing moneys received for or to be applied from any special fund
established and regulated by this Constitution or by an Act of Parliament which provides
that subsections (1) and (4) sh all not apply to that fund.
Appropriation Bills
176. When the estimates of expenditure to be met from the Consolidated Fund, but not
charged thereon, have been approved by the Na tional Assembly, a Bill, to be known as an
Appropriation Bill, shall be introduced in the Assembly providing for the issue from the
Consolidated Fund of the sums necessary to meet that expenditure and the appropriation
of those sums, under separate votes for the se veral heads of expenditure approved, to the
purposes specified in the Bill.
Supplementary appropriations
177.–(1) If in respect of any financial year it is found–
(a) that the amount appropriated by the Appr opriation Act for any purpose is insufficient,
or that a need has arisen for expenditure for a purpose for which no amount has been
appropriated by the Appropriation Act; or
(b) that any moneys have been expended for any purpose in excess of the amount (if any)
appropriated for that purpose by the Appropriation Act,
a supplementary estimate showing the sums re quired or spent shall be laid before the
National Assembly and the heads of any su ch expenditure shall be included in a
Supplementary Appropriation Bill or in a motion or motions approving such expenditure.

(2) Where any supplementary expenditure has been approved in a financial year by a
resolution of the National Assembly under subsection (1), a Supplementary
Appropriation Bill shall be introduced in the National Assembly as soon as practicable
after the commencement of the financial year next following, providing for the
appropriation of the sums so approved.
Authorization of expenditure in advance of appropriation
178. The National Assembly may make provi sion under which, if it appears to the
Minister responsible for Fina nce that the Appropriation Act in respect of any financial
year will not come into operation by the beginni ng of that financial year, he or she may
authorize the withdrawal from the Conso lidated Fund of moneys for the purpose of
meeting expenditure necessary to carry on the services of the Government until the
expiration of four months from the beginning of that financial year or the coming into
operation of the Appropriation Ac t, whichever is earlier:
Provided that provision for any moneys so withdrawn shall be included, under the
appropriate heads, in the Appropriation Bill.
Contingency Fund
179.–(1) The National Assembly may make provision for the establishment of a
Contingencies Fund and for authorizing the Minist er responsible for Finance, if he or she
is satisfied that there has arisen an urgent and unforeseen need for expenditure for which
no other provision exists, to make advances from that Fund to meet that need.
(2) Where any advance is made from the Contingencies Fund, a supplementary estimate
shall, as soon as practicable, be presente d to and voted by the National Assembly and a
supplementary Appropriation Bill or motion approving such expenditure in accordance
with section 176 shall be introdu ced for the purpose of replacing the amount so advanced.
Raising of loans by the Government
180.–(1) A loan may be raised by the Govern ment under the authority of an Act of
Parliament and not otherwise.
(2) Parliament may, in the Act authorizing th e raising of a loan or by any other Act,
appropriate the proceeds of the loan for speci fic purposes and authorize the payment of
such proceeds out of the Consolidated Fund for such purposes.
Special funds and trust moneys
181.–(1) An Act of Parliament may, subjec t to section 182, make provision for the
creation of special funds which shall be accounted within the accounts of the
Consolidated Fund and for the regulation or management of the moneys accounted in
such special funds.

(2) An Act made in accordance with subsection (1) may provide that sections 175 (1) and
175 (4) shall not apply to any particular fund.
(3) Parliament may make provisions regulating the manner in which moneys or
investments held by the Government subjec t to a trust are to be accounted for.
The Development Fund
182.–(1) There shall be a special fund within the Consolidated Fund to be known as the
Development Fund in which shall be acc ounted receipts and expenditure of the
Government relating to the development of the Republic, which have not been included
in the annual statement provided for in sect ion 175, and estimates of such receipts and
expenditure shall be submitted by the Minister responsible for Finance to the National
Assembly not less than once a year.
(2) When the estimates of expenditure to be met from the Development Fund have been
approved by the National Assembly, a Bill to be known as Appropriation (Development
Fund) Bill shall be introduced in the Nationa l Assembly providing for the issue from the
Development Fund and appropriation of the sums necessary to meet that expenditure.
Protected expenditure 183.–(1) There shall be a special fund within the accounts of the
Consolidated Fund upon which shall be char ged certain e protected expenditure.
(2) The Minister responsible for Finance shall, before the commencement of every
financial year, make provision in the Annua l Appropriation Bill for the purpose of voting
sums for the purposes of the fund under subsec tion (1) and such provision shall be passed
without revision by the National Assembly, save where it is insufficient to meet the
expenditure to be charged for the purposes of the fund, in which case the National
Assembly may revise the Bill so as to acco mmodate the expenditure to be charged.
(3) No money shall be withdrawn from the Consolidated Fund save in respect of the
following classes of expenditure–
(a) the salaries of the President and of the Ch ief Justice, Justices of Appeal and of the
High Court;
(b) the salary of the Ombudsman; and
(c) the expenditure incurred to convene Parliament.
Auditor General
184.–(1) There shall be the office of the Aud itor General who shall audit and report on
the public accounts of Malawi, and shall exer cise such other powers in relation to the
public accounts and the account s of public authorities and bodies as may be prescribed by

an Act of Parliament, insofar as they are compatible with the principal duties of that
office.
(2) The Auditor General shall submit reports at least once a year to the National
Assembly, through the Minister responsible for Finance, not later th an the first meeting
of the National Assembly after the completion of the report.
(3) Appointment to the office of Auditor Gene ral shall be made by the President, but the
Public Appointments Committee may at any time inquire as to the competence of the
person so appointed to perform the duties of that office and as to the financial probity of a
person so appointed, so far as it is re levant to the duties of that office.
(4) The office of the Auditor General shall become vacant after the person holding that
office has served for five years, but the pers on holding that office may be nominated for
such further term not exceeding five year s, as the President deems appropriate.
(5) The office of the Auditor General shall be a public office.
(6) A person holding the office of Auditor Ge neral shall be subject to removal by the
President only by reason of that person being–
(a) incompetent in the exerci se of his or her duties;
(b) compromised in the exercise of his or her duties to the extent that his or her financial
probity is in serious question;
(c) otherwise incapacitated; or
(d) over the retirement age.
(7) Subject to subsection (6) in the exercise of the duties and powers vested in the office
of the Auditor General by this Constitution or any other law, the person holding that
office shall not be subject to the direction or control of any other person or authority.
(8) No person or authority may inhibit the Auditor General in the conduct of his or her
functions and duties.
CHAPTER XIX
THE RESERVE BANK OF MALAWI
The Reserve Bank of Malawi
185.–(1) There shall be established by an Ac t of Parliament a central bank of the
Republic, known as the Reserve Bank of Malawi which shall serve as the State’s principal

instrument for the control of money supply, currency and the institutions of finance and
shall serve generally in accordance with the normal functions of a central bank.
(2) The Bank shall be controlled by a Board which shall consist of a c
hairman and
members of the Board who shall, subject to this Constitution, be appointed in accordance
with the Act of Parliament by which the Bank is established.
CHAPTER XX
CIVIL SERVICE
The Civil Service Commission
186. There shall be a Civil Service Commi ssion which shall have the powers and
Functions conferred upon it by this Constitution or any Act of Parliament and which shall
consist of a chairman, deputy chairman and not less than six nor more than ten other
members.
Powers and functions of the Civil Service Commission
187.–(1) Subject to this Constitution, power to a ppoint persons to hold or act in offices in
the civil service, including the power to confirm appointments, and to remove such
persons from office shall vest in the Civil Service Commission.
(2) The Civil Service Commission shall, subj ect to this Constitution and any Act of
Parliament, exercise disciplinary control over persons holding or acting in any office to
which this Chapter applies.
Delegation
188.–(1) The Civil Service Commission may, subject to such conditions as may be laid
down by an Act of Parliament, delegate powers under this section by directions in writing
to any member of the Commission or to any civil servant or public body.
(2) Where any person or body may from time to time exercise powers under this section
on behalf of the Civil Service Commission, in accordance with subsection (1), the Civil
Service Commission shall–
(a) require that person or body to furnish report s in such manner or form as specified in
the directions by which the Comm ission delegated those powers;
(b) hear such complaints or appeals from pe rsons with sufficient interest relating to the
exercise of powers under this section and shall have the authority to–
(i) quash the decision of a person or body exercising such powers;

(ii) exercise such disciplinary powers in relation to such person or body, subject to the
conditions laid down by an Act of Parliament;
(iii) revoke directions delegating powers to any person or body:
Provided that nothing in this section shall prejudice the right of any person who is the
subject of a decision made by or on behalf of the Civil Service Commission to appeal to
the High Court or the right of any person with sufficient interest in such a decision to
petition the High Court for judici al review of that decision.
Offices to which this Chapter does not apply
189. This Chapter shall not apply where this Constitution has otherwise provided for the
appointment or removal of a civil servant or other public appointee, or to appointments
that are regulated by the Judicial Servi ce Commission, the Police Service Commission,
the Prison Service Commission, by provisions relating to appointments in the Defence
Forces of Malawi nor shall it apply to the following offices–
(a) the Chief Justice, the Attorney Genera l and Director of Public Prosecutions;
(b) such personal staff of the President as he or she shall determine subject to approval of
the Public Appointments Committee or as an Act of Parliament may allow;
(c) the Secretary to the Cabinet;
(d) Ambassadors, High Commissione rs and other principal diplomatic staff, within the
meaning of section 190 (1);
(e) the High Command of the Defence Forces;
(f) the Inspector General of Police;
(g) the Chief Commissioner of Prisons;
(h) the office of a Principal Secretary;
(i) such other public office of sufficient seni ority as may be prescribed by an Act of
Parliament.
(2) Unless otherwise provided by this Constitution or by an Act of Parliament the power
to appoint persons to the public offices specified in paragraphs (a) to (i) of subsection (1)
shall vest in the President.
(3) In any case where the Ci vil Service Commission has the power of appointment of the
Clerk or the Clerk-Assistant to the National Assembly, or the Senate before exercising
that power shall consult the Speaker of th e National Assembly or of the Senate.

The appointment of Diplomatic staff
190. Ambassadors, High Commissioners and such other principal diplomatic staff, as
shall be determined by an Act of Parliament, shall be appointed by the President, subject
to confirmation by the Public Appointments Committee which may require persons so
appointed to answer questions as to their competence and financial probity.
Appointment of members of the Civil Service Commission
191.–(1) The members of the Civil Service Commission shall be appointed by the
President, subject to satisfying the Public Appointments Committee as to the competence
of persons so appointed to perform their duties as Civil Service Commissioners.
(2) A person shall not be qualified for appoi ntment as a member of the Civil Service
Commission if that person is President, Vice- President, a Minister or Deputy Minister, a
Member of Parliament or a serving civil servant.
(3) Subject to this section, the office of a member of the Civil Service Commission shall
become vacant–
(a) at the expiration of five years from the date of the appointment of that person, unless
the person is reappointed to a new te rm not exceeding five years; or
(b) if any circumstances arise that, if he or she were not a member of the Commission,
would cause that person to be disqualified for appointment as such.
(4) A member of the Civil Service Commission may be removed from office by the
President subject to the Public Appointment s Committee being satisfied that the member
is not competent to discharge his or her duties:
Provided that nothing in this s ubsection shall prejudice the right of a member of the Civil
Service Commission who is removed to appeal to the High Court against the decision to
remove him or her.
Vacancy
192.–(1) If the office of Chairman of the Civil Service Commission is vacant or the
Chairman is for any reason unable to perform th e functions of his or her office, then those
functions shall be performed by the Deputy Chai rman until that vacancy is filled or the
Chairman is able to resume his or her duties.
(2) If both the Chairman and the Deputy Chairman are unable to perform their functions,
then another of the members of the Commissi on as may be designated in that behalf by
the remaining members of the Commissi on shall perform the functions of the
Commission.

(3) If at any time there are less than seven members of the Civil Service Commission and
the Public Appointments Committee is not able to sit, either because of Parliament being
dissolved or some other reason, the Presiden t may appoint such persons as qualified for
appointment to the Commission and are require d to act as members of the Commission:
Provided that the appointment of a person to act as a member of the Civil Service
Commission in accordance with this subsection sh all lapse on his or her appointment as a
full member of the Commission in accordance with subsection 191(1), or until the office
in which he or she is acting is filled after the Public Appointments Committee has
resumed sitting.
Independence of the Civil Service
193.–(1) Members of the Civil Service shall ensu re that the exercise of participation in
political activities does not compromise thei r independent exercise of their functions,
powers and duties as impartial se rvants of the general public.
(2) The National Assembly may prescribe a ca tegory of civil servants, who by reason of
their seniority shall not be able to direc tly participate in political activities:
Provided that–
(a) the civil servants so restricted shall have the right to resign in order to participate
directly in political activities;
(b) nothing in this section shall be deemed to prejudice any civil servant having the
absolute right to vote in accord ance with this Constitution;
(c) without prejudice to subsect ion (1) any civil servant whose functions are not directly
concerned with the formulation and administration of the government policies of the
Government shall be exempt from rest rictions under this section; and
(d) nothing in this section shall prejudice the ri ght of any civil servant to hold office in, or
be a member of, any association, group or professional body, the purposes of which are
principally to represent their member’s intere sts in relation to the terms and conditions of
employment or the general carrying on of any profession or trade or the promotion of any
interest, not pertaining directly to the prom otion of a political party, or its campaign or
philosophy.
(3) No Government or political party shall cause any civil servant acting in that behalf to
exercise functions, powers or duties for th e purposes of promoting or undermining the
interest or affairs of any political party or i ndividual member of that party, nor shall any
civil servant acting in that behalf promote or undermine any political party or member of
that party, save as is consistent w ith the provisions in this section.

(4) No government or political party shall cause any civil servant, acting in that behalf to
deploy resources, whether they be financial, material or human resources, for the
purposes of promoting or undermining any political party or member of a political party
or interest group, nor shall any civil servant act ing in that behalf cause such deployment,
save as prescribed by this Constitution or an Act of Parliament consistent with the
provisions of subsection (1).
(5) Any civil servant who contravenes this se ction shall be subject to such disciplinary
measures as the Civil Service Commission c onsiders appropriate, taking into account the
gravity and circumstances of the contraventi on, subject to such regulations as may be
prescribed by an Act of Parliament.
(6) Where the Civil Service Commission is satisf ied that a government or political party
or member of a political party has acted in contravention of subsection (3) or subsection
(4), the Civil Service Commission may initiate proceedings before the High Court for
punitive damages and, in the case of a contrave ntion of subsection (4), the recovery of
such resources or sums equivalent to the benefit of the enjoyment of those resources from
the government or political party or member of a political party who has so benefitted, as
the case may be.
Chairing of boards, commissions, etc.
194. Where a law confers power to appoint a board, commission, council, committee or
similar body and to appoint, elect or designate the chairperson thereof, no person shall be
appointed, elected or designa ted as chairperson of more than one such board,
commission, council, committee or similar body.
CHAPTER XXI
AMENDMENT OF THIS CONSTITUTION
Power to amend
195. Parliament may amend this Constitution in accordance with this Chapter.
Restrictions on amendments
196. –(1) Subject to this section, Parliament ma y amend this Chapter and the sections of
this Constitution listed in the Schedule only if–
(a) the provision to be amended and the pr oposed amended to it have been put to a
referendum of the people of Malawi and the majority of those voting have voted for the
amendment; and
(b) the Electoral Commission has so certified to the Speaker.

(2) The Parliament may pass a Bill proposing an amendment to which the conditions set
out in subsection (1) have been satisfied by a simple majority.
(3) Notwithstanding subsection (1), Parliament may pass a Bill containing an amendment
to the provisions referred to in that subsection without a referendum where–
(a) the amendment would not affect the substance of the effect of the Constitution;
(b) the Speaker has so certified; and
(c) the Bill is supported by a majority of at least two-thirds of the total number of
members of the National Assembly entitled to vote.
Amendments by Parliament
197. Subject to section 196, Parliament may am end those Chapters and sections of this
Constitution not listed in the Schedule only if the Bill proposing the amendment is
supported by at least two- thirds of the total number of memb ers of the National
Assembly entitled to vote.
CHAPTER XII TRANSITIONAL ISSUES
Republic, etc. to be constituted in accordan ce with this Constitution 198. The Republic of
Malawi, the organs of State and the offices referred to in this Constitution shall be
defined and constituted in accord ance with this Constitution.
Status of this Constitution 199. This Constitution shall have the status as supreme law
and there shall be no legal or political authority save as is provided by or under this
Constitution.
Saving of laws in force
200. Except in so far as they are inconsiste nt with this Constitution, all Acts of
Parliament, common law and customary law in force on the appointed day shall continue
to have force of law, as if they had been made in accordance with and in pursuance of
this Constitution:
Provided that any laws currently in force ma y be amended or repealed by an Act of
Parliament or be declared uncons titutional by a competent court.
Elections to the National Assembly
201. For the purposes of this Constitution the first National As sembly after the date of
commencement of this Constitution shall be composed of those persons successfully
elected to the National Assembly in accordance with the Act of Parliament then in force
for the election of members of the National Assembly.

Elections to the office of President
202. For the purposes of this Constitution the first President after the date of
commencement of this Constitution shall be the person successfully elected in
accordance with the Act of Parliament then in force for the election of a person to the
office of President.
Saving of judicial power
203. The High Court shall have the same juri sdiction, powers and procedures as before
the commencement of this Constitution, subjec t to amendment or repeal of such powers
by an Act of Parliament in accordance with this Constitution.
Pending legal actions
204.–(1) All legal actions which, at the comm encement of this Constitution, are pending
or being undertaken before any court other than before the Supreme Court of Appeal, the
High Court, a Magistrate Court, a District Tr aditional Appeal Court, District Traditional
Court, a Grade A Traditional Court, or a Grade B Traditional Court shall be commenced
or continued before the High Court of Malawi or before such Magistrate’s court or
District Traditional Appeal Court or Distri ct Traditional Court or Grade A Traditional
Court or Grade B Traditional Court as the Re gistrar of the High Court shall direct.
(2) All legal actions which, at the commencement of this Constitution, are pending or
being undertaken before any Ma gistrate Court shall be commenced or continued before
that court which shall have the same jurisd iction, powers and procedures as before the
commencement of this Constitution subject to amendment or repeal of such powers by an
Act of Parliament.
(3) All legal actions which, at the commenc ement of this Constitution, are pending or
being undertaken before a District Traditional Appeal Court, a District Traditional Court,
a Grade A Traditional Court or a Grade B Trad itional Court before the commencement of
this Constitution shall be comme nced or continued before that court which shall have the
same jurisdiction, powers and procedures as before the commencement of this
Constitution subject to amendment or repeal of such powers by an Act of Parliament.
(4) Appeals against the decisions of a Distri ct Traditional Appeal Court or a District
Traditional Court shall lie to the High Court which, in hearin g such appeals, may sit with
assessors appointed in accordance with an Act of Parliament.
Judgements and sentences pending execution
205. All judgments or sentences pending execution shall be executed as if such
judgments or sentences were ordered in accordance with this Constitution:

Provided that where the Constitution provides new grounds for appeal, any such appeal
shall act as a stay of execution and th e appeal shall be to the High Court.
Existing appointments
206.–(1) Subject to the provisions of this Constitution, any person holding office under
any law in force on the date of the commence ment of this Constitution shall continue to
hold such office until such time as–
(a) that person is conf irmed in that post;
(b) that person is replaced by another person appointed or elected to that post in
accordance with the Constitution; or
(c) that person resigns or retires or is removed in accordance with this Constitution:
Provided that where this Constitution has crea ted an office with a different designation,
but an equivalent function is exercised by an office existing at the time of the date of the
commencement of this Constitution, a person occ upying that office shall, from the date of
commencement of this Constitution, have such powers, functions and designation as is
prescribed for the equivalent office created by this Constitution.
(2) For the purposes of subsect ion 51 (2) and subsection 80 (1), and only for that purpose,
the person who at the commencement of this Constitution is holding the office of Chief
Justice shall be deemed to be appointed under this Constitution as Chief Justice.
Vesting of lands, etc., in the Republic
207. Subject to the provisions of this Constitution, all lands and territories of Malawi are
vested in the Republic.
Savings of rights of the Government in property
208. The Government shall have title to all ri ghts in property which are vested in the
Government of Malawi on the date of the commencement of this Constitution save as
otherwise provided by section 209 (2) and provided that the disposal of rights in property
where title is vested in the Government shall not be made without the consent of
Parliament.
Continuation of rights of persons in property
209.–(1) All persons who have rights in property at the date of the commencement of this
Constitution shall continue to have such rights under this Constitution and any other law.
(2) This section shall not apply in respect of rights in property that have been acquired or
vested by or on behalf of the Government wh ere that property was acquired or vested at

any time since 6th July, 1964, and where that right in property was obtained from citizens
or permanent residents of Malawi–
(a) unlawfully according to the laws then in force in Malawi;
(b) by virtue of any law not being a penal law passed during that time that did not provide
for adequate compensation; or
(c) through abandonment by reason of duress or circumstances.
(3) For the purposes of this section “Governme nt” shall mean the President, the Cabinet,
the Ministries, other organs of the Presid ent and Cabinet and their agents, including
individuals and bodies under the authority of the President, the Cabinet or the Ministries.
(4) Rights in property which are not recognized by virtue of this section shall be vested in
the National Compensation Fund and shall be disposed of in accordance with the
principles, procedures and rules of the National Compensation Tribunal.
(5) Persons occupying or using property vest ed in the National Compensation Fund shall
continue to occupy and use that property, as if they retained full legal and equitable title
until such time as the National Compensation Tribunal otherwise orders.
Constitutional position pending establishment of the Senate 210.–(1) Until the
establishment of the Senate and the elect ion and appointment of its members–
(a) all legislation shall be enacted by the National Assembly as if this Constitution had
not made provision for the Senate and Parl iament had consisted exclusively of the
National Assembly acting on its own without be ing subject to the review of the Senate;
and
(b) this Constitution shall be construed as if no functions had been vested in the Senate:
Provided that nothing in this se ction shall be taken or construed to affect the provisions
laid out in Chapter VI.
International law 211.–(1) Any international agreement ratified by an Act of Parliament
shall form part of the law of the Republic if so provided for in the Act of Parliament
ratifying the agreement.
(2) International agreements entered into be fore the commencement of this Constitution
and binding on the Republic shall form part of the law of the Republic, unless Parliament
subsequently provides otherwise or the agreement otherwise lapses.
(3) Customary international law, unless incons istent with this Constitution or an Act of
Parliament, shall have continued application.

CHAPTER XXIII
MISCELLANEOUS
Coming into force of this Constitution
212.–(1) This Constitution shall provisionally come into force on 18th May, 1994, being
the appointed day, and shall provisionally ap ply as the Constitution of the Republic of
Malawi for a period of not less and not more th an twelve months from that date (in this
section referred to as the “peri od of provisional application”).
(2) During the period of provisi onal application Parliament may amend or repeal this
Constitution in accordance with this s ection subject only to section 196.
(3) Within fourteen days of the first sitt ing of Parliament after the appointed day,
Parliament shall appoint a Committee to be known as the Constitution Committee which
shall consist of the Speaker of the National Assembly as Chairman of the Committee and
ten other members of Parliament a ppointed by the National Assembly.
(4) The function of the Constitution Committee shall be to–
(a) organize national education and consultation on this Constitution;
(b) organize a national conference fully re presentative of Malawian society;
(c) invite, receive and consider proposals from the citizens of Malawi for the amendment
or for the repeal and replacement of this Constitution;
(d) allow citizens of Malawi in accordance with its own procedure to make written
submissions to, or to be hear d in person by, the Committee;
(e) compile reports of the proposals received and circulate such reports as widely as
possible;
(f) lay the reports before Parliament for such period not being less than thirty days before
taking action under paragraph (g) as would be reasonably sufficient for responses to be
received; and
(g) to prepare a Bill or Bills for the amendm ent of this Constitution or, as provided in
subsection (5), a Bill for the repeal and replacement of this Constitution and every such
Bill shall be a separate Bill of its own, entitle d a Bill to amend the Constitution or, as the
case may be, a Bill to repeal and replace the Constitution, and to present such Bill or Bills
to Parliament on its own motion.
(5) On the basis of the extensiveness of the proposals for amendments to this
Constitution, Parliament may repeal and replace this Constitution during the period of

provisional application, but no such repeal shall be made before, or in contradiction to the
resolution of, the national conference referred to under section (4) (b).
(6) Within thirty days before the expiry of the period of provisional application,
Parliament shall pass an Act by which this Constitution (with the amendments, if any,
made to it under this section) or another Cons titution replacing this Constitution shall be
brought definitively into force on the expiry of the provisional period of application.
(7) A Bill under this section to amend or to repeal and replace this Constitution shall be
passed only if supported by not less than a two-th irds majority of all the members of the
National Assembly and shall not be remitted by the Senate.
(8) Unless this Constitution is being repealed and replaced, this section shall not be
amended but shall lapse on the expiry of the period of provisional application, save only
to the extent necessary to bring this Constitution definitively into force in the
circumstances of subsection (9).
(9) If Parliament defaults to act in terms of subsection (6) this Constitution shall be
deemed to have definitively come into for ce on the expiry of the period of provisional
application.
Short title of this Constitution
213. This Constitution of the Republic of Malawi may be cited as the Constitution.
Definition 214. In this Constitution, unle ss the context otherwise requires–
“appointed day” means 18th May, 1994, being the date on which this Constitution shall
come into operation;
“age prescribed for retirement” is such age as may be prescribed in an Act of Parliament
for the retirement of a person holding public office.
SCHEDULE
Those Chapters of this Constitution, and the se ctions in those Chapters, listed under this
Schedule and the entirety of this Schedule shall not be amended except in accordance
with section 196.
CHAPTER I–THE REPUBLIC OF MALAWI

SECTION
1. Malawi a sovereign State
2. National flag, etc.
3. National territory
4. Protection of the people of Malawi under this Constitution
5. Supremacy of this Constitution
6. Universal and equal suffrage

7. The separate status, function and duty of the executive
8. The separate status, function and duty of the legislature
9. The separate status, function and duty of the judiciary

CHAPTER II–APPLICATION AND INTERPRETATION

10. Application of this Constitution
11. Interpretation

CHAPTER III–FUNDAMENTAL PRINCIPLES

12. Constitutional principles
13. Principles of national policy

CHAPTER IV–HUMAN RIGHTS

15. Protection of human rights and freedoms
16. The right to life
17. Genocide
18. Liberty
19. Human dignity and personal freedoms
20. Equality
21. Privacy
22. Family and marriage
23. Rights of children
24. Rights of women
25. Education
26. Culture and language
27. Slavery, servitude and forced labour
28. Property
29. Economic activity
30. The right to development
31. Labour
32. Freedom of association
33. Freedom of conscience
34. Freedom of opinion
35. Freedom of expression
36. Freedom of the press
37. Access to information
38. Freedom of assembly
39. Freedom of movement and residence
40. Political rights
41. Access to justice and legal remedies
42. Arrest, detention and fair trial
43. Administrative justice
44. Limitations on rights
45. Derogation and public emergency
46. Enforcement

CHAPTER V–CITIZENSHIP

47. Citizenship

CHAPTER VII–ELECTIONS

77. The franchise

CHAPTER IX–THE JUDICATURE

103. The independence and jurisdiction of the courts and the judiciary
111. Appointment of the judiciary
114. Remuneration
119. Tenure of judges
Passed in Parliament this sixteenth day of May, one thousand, nine hundred and ninety-
four.
D. C. BANDAWE for Clerk of Parliament
Printed and published by THE GOVERNMENT PRINTER, Zomba, Malawi