International and Regional Human Rights Agreements

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

Constitutional Framework

The major constitutional framework guiding civil society, including rights such as the freedom of association, expression and assembly, is the Republic of Malawi Constitution.  Chapter III, Section 12 of the Constitution provides the following as some of its core principles:

1. All legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests (S12 (i))
2. The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote (S12 (iv)).
3. As all persons have equal status before the law, the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society (S12 (v)).
4. All institutions and persons shall observe and uphold the Constitution and the rule of law and no institution or person shall stand above the law (S12 (vi).

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

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

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

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

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

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

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

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

National Laws and Regulations Affecting Sector

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

Trustees Incorporation Act of 1962

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

Companies Act 2000

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

NGO Act of 2000

Regardless of whether an organization is registered under the Trustees Incorporation Act or Companies Act, all NGOs must register under the NGO Act to legally operate in Malawi. Thus, the NGO Act of 2000 seeks to: provide for the rights and obligations of NGOs in Malawi; promote the development and values of strong independent civil society; provide for the establishment, functions and powers of the NGO Board of Malawi and the rights of the public to access information with respect to registered organizations; and to provide for matters incidental thereto or connected therewith. .

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

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

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

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

Police (Amendment) Act of 2010

The revised Police Act of 2010 gives the police the powers to conduct searches without a court warrant. As a result, they can invade NGOs’ offices or the houses of human rights defenders on flimsy grounds, potentially violating the right to privacy. In addition, such a law may compromise the security and independence of NGO operations. During the reign of the former President, Prof. Bingu wa Mutharika, the police used the new Act in 2011 to harass the former Chairperson of the Malawi Human Rights Commission, Mr. John Kapito, who is also the Executive Director for Consumer Association of Malawi (CAMA).

Malawi Revenue Authority (MRA) Act of 1998

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

Taxation Act

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

Pending NGO Legislative / Regulatory Initiatives

1. NGO Amendment Bill (to Amend the NGO Act) and NGO Policy

NGO Amendment Bill (to Amend the NGO Act)
In April 2017, the Government of Malawi issued the Non-Governmental Organizations (Amendment) Bill (“Amendment Bill”) to amend the NGO Act. It contains a number of concerning provisions:

– Under Section 4 of the NGO Act, the law applies to “an NGO within Malawi” that fulfills a number of criteria including, inter alia, that it applies all of its funds and resources “for public benefit purpose only.” The Bill proposes to expand this definition in a way that appears to ensure that community-based organizations (CBOs) and faith-based organizations (FBOs) are, for the first time, incorporated into the same legal regime as NGOs. While there may be advantages to having a single regulator for various types of NGOs, it may also present complications if it is unclear which organizations are subject to this law.

– The Amendment Bill would eliminate the consultative role of CONGOMA, in determining the NGO Authority’s composition. According to the NGO Act, the NGO Authority comprises ten members, seven of whom are appointed by the Minister “in consultation with CONGOMA.” Section 4 of the Amendment Bill eliminates this consultative element and instead provides for an NGO Authority staffed entirely by members appointed by the Minister and Government secretaries acting ex officio. Section 5 likewise amends the provisions on removal and substitution of members of the NGO Authority: Under the current NGO Act, removal and substitution occurs only by a decision of the Minister “in consultation with CONGOMA.” The Amendment Bill would once again eliminate CONGOMA’s consultative role. Accordingly, if the Amendment Bill were adopted, civil society would have no formal, guaranteed role in selecting, substituting, or removing members of the NGO Authority, giving the Government complete control over the Authority’s composition.

– The Amendment Bill not only removes CONGOMA’s consultative role in shaping the regulatory authority, but also eliminates Section VII and Section VIII of the NGO Act, which provide statutory basis for CONGOMA’s role as the designated NGO coordinating body and for CONGOMA’s general assembly, respectively. It is unclear what the legal status and future role of CONGOMA will be if the Amendment Bill is implemented. Without a statutory basis, it is not certain whether CONGOMA would continue to serve as a leading entity to coordinate the sector’s efforts and advocate for its interests. Under current law, CONGOMA also has a mandate to serve as a mechanism through which NGOs are able to communicate and cooperate with other sectors, including the Government, donors, and businesses; it is not clear what would happen to that function.

– Certain provisions of the Amendment Bill, such as required registration for all NGOs and limitations on permissible purpose, also reinforce aspects of the NGO Act that contravene Malawi’s obligations under international law.

From November 2018 to January 2019, the public sphere has continued to be dominated by discussion of the Bill. Moreover, the government appears to have become more determined to stifle civil society despite a massive challenge presented by the media and NGOs against the proposed Bill. This is because one of the disturbing new provisions being discussed involves converting the NGO Board into a government statutory corporation [1]. The Bill would also likely lead to the over-regulation of NGOs because it gives the government more powers, such as appointing members of the Board, who would be largely drawn from government departments or ministries, as well as removing CONGOMA, unilaterally setting fees, and de-registering NGOs, among other things.

In response to the tabling of the Bill, some NGOs sought court relief to stop Parliament from debating it. The High Court stopped Parliament from tabling the Bill pending a judicial review. This order followed an ex parte application by some NGOs that believed the provisions threatened to severely reduce civic space.

In a related development, the Malawi Human Rights Commission (MHRC) requested that the National Assembly redraft the NGO Act. In the communication, the MHRC noted that there are a number of issues that need to be clarified before the Bill is discussed in Parliament. For example, the proposed Bill grants more powers for the Minister of Finance to choose how to deal with NGOs, such as granting duty waivers and setting annual fees payable to the NGO Board. In addition, it creates a new authority that, while still called the NGO Board, has a new structure that includes appointees of the minister and grants him vague responsibilities that would in the long run be able to be used to intimidate and stifle civic space. The MHRC recommended that the redrafting process should be participatory by taking into account views of the stakeholders, including CONGOMA. It also noted that the Bill infringes on the right of individuals to form or join associations or trustees due to the proposed harsh punishments for non-compliance with its provisions.

In addition, the Malawi Law Society (MLS) warned against defying the court order on the proposed Bill and asked Parliament to respect the order. This came amid a declaration by the First Deputy Speaker that due to section 5 of the National Assembly (Powers and Privileges) Act, the court order could not be served on the National Assembly while it was in session. In response, MLS referred to section 5 of the Constitution, which states that Parliament’s immunity can be challenged where the actions of the House were likely to infringe on the rights of citizens. A further attempt by the government to vacate the injunction in January 2019 was denied when the High Court ruled that Parliament had a duty to comply with the order. This meant any attempt by Parliament contrary to the court order would constitute contempt of court.

[1] Statutory corporations are quasi-governmental entities that provide public goods and services. They are technically independent of government, but operationally they are not independent because the government appoints the board members as well as hires the CEOs. They include entities such as the Water Board and the Electricity Supply Commission of Malawi. Because the Bill provides more powers to the government, the NGO Board would be run similar to a statutory corporation.

NGO Policy
The operations of non-governmental organizations (NGOs) in Malawi are regulated by the Non-Governmental Organizations Act (“the NGO Act”) and a code of conduct. Since 2016, the Ministry of Gender, Children, Disability and Social Welfare (the Ministry) has been developing a draft NGO policy with the NGO Board, the Council of NGOs of Malawi (CONGOMA), and the Ministry of Local Government and Rural Development. According to the Government, one justification for introducing a policy is that Malawi has “put the legislation cart before the policy horse” and the ensuing policy vacuum has “adversely affected government engagement with the NGO sector despite the existence of the NGO Board and the NGO Act, 2001.” The NGO Act is expected to be revised once the policy is in place. (There is reportedly an updated version of the NGO Policy, which ICNL will follow, share and comment on if and when it is available).

2. Fee Hikes on NGOs

Following the government’s attempt to amend the NGO Act, in early 2018 Parliament decided to refer the NGO Amendment Bill to the Legal Affairs Committee for further consultations and scrutiny. However, NGOs were then surprised to learn about the secretive introduction of new fees imposed by the government on NGOs, which range from MK 1 million (USD 1,388) to MK 2 million (USD 2,776), without any consultations. In introducing the new fees, the government cited the need for “transparency and accountability” in the NGO sector. Before January 2018, the annual fees for NGOs were significantly less—MK 50,000—as were the registration fees—MK50,000. In response, CONGOMA issued a statement declaring the new fees illegal and advising NGOs not to pay the fees until the issue had been resolved. CONGOMA believed that the new fees were a deliberate ploy by government to shrink the operating environment for NGOs.

In light of the opposition from NGOs, the government, through the Presidential Advisor on NGOs, called a roundtable discussion with the NGO Board and CONGOMA about the issue. However, the NGO Board proceeded to justify the higher fees. At the meeting, CONGOMA reaffirmed its earlier position that the NGOs would not pay any fees if no effort was made to maintain the existing levels. As a result, the Presidential Advisor on NGOs informed CONGOMA that government had decided to reduce the fees for local NGOs, but international NGOs would be expected to pay the revised fee of MK 2 million. Noting that the government was not willing to reverse its decision, on April 9, 2018, CONGOMA challenged the fee hikes and obtained a temporary court injunction, effectively blocking the fee hike. Judicial review proceedings will determine whether the fee hikes will ultimately be annulled or whether they can still be instituted.

3. Access to Information (ATI) Law

The Parliament enacted the Access to Information (ATI) Law on December 14, 2016. After some delay over the Bill’s designation of the Malawi Human Rights Commission (MHRC) as the Public Information Commission (which the government had wanted to assign to the Ministry of Information), the President assented to the Bill in February 2017. In the end, the Act designated the MHRC as the Public Information Commission. Both Parliament and the general public agree that the MHRC is well placed to serve this role because of its independence.

The general public’s fear about the government’s intent to stifle citizens’ right to access information was exacerbated when the Chief Secretary of the President issued a public notice in January 2017 warning all officers as well as civil servants against sharing information without approval from his office. This came against the background of ongoing investigations into the government’s procurement of $34.6 million worth of maize.

The ATI Law has, however, not yet been operationalized. The Public Information Commission has yet to put in place a mechanism for the implementation of this law. The MHRC has, however, been putting in place systems for the effective implementation of the law. At present, the MHRC is developing a Communication Strategy, which seeks to raise public awareness of the Freedom of Information (FOI) provisions of the ATI Law, as well as the Law’s limitations. The Communication Strategy is intended to ensure smooth implementation of the ATI Law. However, on December 27, 2017, the Executive Secretary of the MHRC was reported as saying that there was nothing that MHRC can do to implement the law in the absence of government funding to do so.

Most recently, the Ministry of Information was quoted on January 21, 2018 saying that it expected the ATI Law to become operational by July 2018. The Ministry conceded that all the structures have been put in place, and that the only thing still needed for it to become operational was funding from the government. The Media Institute for Southern Africa – Malawi Chapter has said that it will consider turning to the courts as a last resort to expedite the implementation of the ATI Law. At the 2018 Malawi Law Society (MLS) Annual Assembly, delegates also discussed case studies where courts were used to force authorities to implement similar legislation more quickly.

4. Electoral Reforms

A major development is the electoral reforms that are currently under consideration, which will have an effect on the involvement of NGOs that deal with civic education on electoral issues.

One bill would amend Section 80(3) of the Constitution and section 96(5) of the Presidential and Parliamentary Elections Act and would require the winning presidential candidate to garner a majority of the vote, rather than simply a plurality. Another amendment would require that the elected President be sworn in after 30 days instead of within 30 days as currently is the case. The rationale for these reforms is to ensure that there is an effective transition of the presidential power, while at the same time providing time for the Malawi Electoral Commission (MEC) to deal with electoral disputes.

There is also a proposed Election Management Bill, which seeks to “ring-fence” [1] funding for elections, as well as the depoliticization of the appointment of the Commissioners of the MEC. The Bill proposes the establishment of an appointment panel, which will be constituted by the Law Commissioner, the Chairperson of the Malawi Human Rights Commission, a judge and three CSO representatives appointed by the NGO Board.

Finally, the proposed Political Parties Funding Bill seeks to enhance transparency and accountability of political party funding. This will help to level the playing field between opposition parties and the party in power, which quite often abuses the public resources at its disposal to gain an advantage.

It is hoped that once these Bills have been passed, NGOs involved in electoral matters will conduct additional work to sensitize the public and build the capacity of stakeholders. As the government has displayed an unwillingness to table, deliberate, and pass these bills in Parliament, civil society, led by the Public Affairs Committee, organized a demonstration on December 13, 2017 to urge the government to enact them. Civil society has planned another national demonstration for April 27, 2018 to continue to urge for the reforms to be passed in Parliament.

[1] A “ring-fence” is a protection-based transfer of assets from one destination to another, usually through the use of offshore accounting.

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

Organizational Forms

In Malawi, not-for-profit organizations may be registered as community-based organizations (CBOs) or non-governmental organizations (NGOs).

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

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

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

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

According to statistics of the NGO Board of Malawi, there are 260 NGOs registered with the Board. By contrast, 510 NGOs, cutting across all sectors of development, have registered with CONGOMA. The discrepancy in the number of registered NGOs between the two organizations is due to the more recent establishment—within the last two years—and lower visibility of the NGO Board. CONGOMA, meanwhile, has retained its ability to coordinate NGOs in Malawi.

Public Benefit Status

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

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

NGOs registered with the Registrar General under either the Trustees Incorporation Act or Companies Act and with CONGOMA and the NGO Board of Malawi under the NGO Act may receive the benefits of public benefit status under Sections 2 and 33.

Barriers to Entry

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

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

NGOs are required to pay CONGOMA an annual fee of MK 55,000 (approximately USD 130). Thereafter, the NGO Act requires NGOs to pay the NGO Board MK 35,000 (approximately USD 88) as registration fees and another MK 35,000 (approximately USD 88) as annual fees, regardless of whether the NGO received funding. These fees are applied universally and do not take into account an NGO’s size and growth. The amount of the fees is not prescribed by law; instead, the law requires the NGO Board and CONGOMA to set fees as may be deemed appropriate, subject to review from time to time.
INGOs pay MK 1,200 (approximately USD 300) as annual fees. INGOs also pay MK 128,000 (approximately USD 320) per annum to CONGOMA, as well as MK 120,000 (approximately USD 300) for registration and 105,000 MK (approximately USD 263) for annual fees to the NGO Board.

This two-tiered registration system in the NGO Act (NGO Board and CONGOMA) imposes a burden on newly formed NGOs to raise money to register with both entities as required by the law. In addition, NGOs must submit audit accounts during registration to the NGO Board regardless of whether they have received funding from donors or implemented a project. NGOs must register with CONGOMA by paying registration fees and subsequently annual fees as a pre-condition for registration with the NGO Board.

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

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

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

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

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

Section 23(3) gives the Board the powers to order the cancellation or suspension of an NGO’s registration. However, Section 23(4) gives any aggrieved NGO the ability to challenge the decision of the Board by applying to the High Court for judicial review. However, some NGOs might not know how to apply to the courts for judicial review.

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

Foreign NGOs

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

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

Barriers to Operational Activity

Section 23 of the NGO Act gives powers to the NGO Board to cancel or suspend registration of an NGO on various grounds, including engagement in partisan politics. For instance, as noted above, Section 23(1) of the NGO Act provides that the Board may order the Registrar to cancel or suspend the registration of an NGO if it is satisfied that the NGO (a) has ceased to exist or function for the purposes for which it was constituted; (b) has failed or refused to comply with the provisions of the Act; or (c) has been engaged in partisan politics. Further, Section 23 (2) stipulates that the NGO coordinating body may, where it has good and valid reasons, make recommendations to the Board for cancellation or suspension of the registration of an NGO. In line with subsections (1) and (2), Section 23 (3) states that an order cancelling or suspending the registration of an NGO under subsection (1) shall not be issued, unless (a) the NGO concerned has been given at least thirty days prior written notice, sent to its last known address; of the Board’s intention to impose such sanction; and (b) the NGO has had an opportunity to be heard either verbally or in writing as the Board may determine. Section 23(4) states that any NGO aggrieved by a decision of the Board made under this section may apply to the High Court for judicial review.

The requirement, described above, for an MOU or other agreement with the Ministry responsible for the NGO’s sphere of activities could be interpreted to require advance approval for NGOs to carry out their activities.

Section 22(1) states that “Every registered NGO shall file with the Registrar’s office the following documents and information which shall be part of the Registry accessible to the public”,

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

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

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

Threats of De-registration

Although the NGO Board has not, to date, de-registered any NGO, the Board threatened to close NGOs that did not register with the NGO Board by June 30, 2013.  At that time, the NGO Board said it would invoke Section 18 and subsequent sections, which empower the Board to discipline and close an NGO subject to a court order, if they were not registered by June 30. Although the Board did not follow through on this threat, the NGO Board in 2014 again threatened to close all NGOs that were not registered with the Board.

Harassment

During the last Democratic Progressive Party (DPP) regime (2009-2012), government harassment of NGOs was common. The situation has significantly improved since the Peoples Party (PP) Government came to power in 2012. However, in some instances the President has directly attacked the media for allegedly working against the government. In the same vein, government officials, especially Ministers, have questioned the intentions of some NGOs, thereby raising speculation about possible physical attacks or other forms of stigmatization.

Targeting NGOs that are Critical of the Government

In almost all cases of threats and violence, the government has failed to provide adequate protection to NGO representatives, especially if they are critical of government policies. The threats directed at human rights defenders prior to and after the July 20, 2011 demonstrations over the high cost of living and poor public services that exist as a result of bad governance, corruption, and lack of state accountability, are classic examples of how the government has done nothing to protect civil society. During the same period, some NGO leaders had their offices and homes set on fire, while others had their vehicles destroyed. There were also cases of NGO leaders going into hiding due to fear for their lives without protection or support from the State. In several cases, even with clear knowledge of the perpetrators, the police took no action.

The situation has not changed over the years. In 2016, the government accused prominent human rights activists of committing treason, claiming that activists have been organizing meetings with foreign diplomats in an attempt to push for regime change. While the claims lacked substance, the government called on the activists to exonerate themselves of their alleged crime. However, the general public understands that the government’s claims are meant to frighten activists from fulfilling their watchdog role. The Head of the NGO Board also claimed in 2016 that 90% of the NGO sector lacks accountability, which has been understood as justification for the government to shut down some NGOs that are critical of the government. These claims have also been interpreted by the media as implying that NGOs are corrupt and misuse donor funds.

A similar situation occurred again in 2019. In April, NGOs called for investigations into the brutal killing of Lule Buleya, who was reportedly electrocuted in police custody because he had information that could indict individuals who had killed a young boy with Albinsim. In retaliation, the NGO Board wrote the Centre for the Development of People (CEDEP) on March 22, 2019 to inform CEDEP that it was not registered under the NGO Act and therefore was operating illegally. Section 20 of the Act requires any NGO established or operating in Malawi, which is recognized as a legal person, to register with the NGO Board. The Board, therefore, directed CEDEP to register within 14 days from the date of the letter. If it failed to do so, the Board would take legal steps to enforce its registration. CEDEP responded with a letter dated March 25, 2019 demanding an apology from the NGO Board for publishing the issue on social media before contacting CEDEP itself. CEDEP also claimed it was duly registered under the Trustees Incorporation Act and that it met the obligations arising from other laws of Malawi. Furthermore, CEDEP claimed it operated based on Section 32 of the Constitution of Malawi, which provides that every person shall have the right to freedom of association, including the right to form an association. It was not immediately clear whether the NGO Board would pursue this matter further, but other critics have been similarly targeted.

Other Issues

NGOs have also raised concerns that the plundering of public resources is leading serious economic turmoil, which has led to the suspension of budget support by donors. Inflation hovers around 30% in a country where 75% of Malawians live on a less than a dollar per day, and 85% of Malawians live in rural areas.

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

Barriers to Speech / Advocacy

The Penal Code contains many problematic provisions regarding freedom of expression. Although section 35 of the Constitution guarantees the right to freedom of expression, the penal code has offences that in practice create undue censorship of speech, in particular the offence of “sedition.” While most countries have repealed similar offences, Sections 50 and 51 of the Penal Code, which establish the offence of sedition, state that:

A “seditious intention” is an intention –

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

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

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

Section 51(1) then states that:

“Any person who-

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

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

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

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

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

Barriers to International Contact

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

Barriers to Resources

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

However, as Malawi faced devastating floods in early 2015, the NGO Board of Malawi issued a statement directing all NGOs providing services to flood victims to work through government structures. The statement also appealed to donors to support only NGOs that are registered with the NGO Board, arguing that the number of unscrupulous NGOs working in disaster assistance was mushrooming. If the NGO Board were to enforce compliance with this statement, it would impede the ability of NGOs to receive support for disaster assistance. The NGO Board’s statement could also foreshadow more restrictive initiatives affecting NGOs in the future.

Barriers to Assembly

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

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

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

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

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

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

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

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

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

Criminal and Financial Penalties
Section 107(1) of the Police Act states that any person who, while present at or taking part in any assembly or demonstration which takes place in or on a road or street or at any place of public resort, whether such assembly or demonstration has been lawfully convened or not, has with him any weapon otherwise than in pursuance of lawful authority, commits an offence and may be arrested without a warrant and shall, on conviction be liable to a tune of MK 100,000 and to imprisonment for two years.