Malawi has experienced a wave of COVID-19 cases in which Malawi’s government has bemoaned the lack of vaccines. In addition, the political scene has been dominated by corruption and abuse of COVID-19 funds. The Anti-Corruption Bureau (ACB) instituted a probe into the awarding of funds to the Malawi Rural Electricity Programme because it suspected corruption. Similarly, the Human Rights Defenders Coalition (HRDC) petitioned the ACB to probe fuel contracts at the National Oil Company of Malawi (NOCMA). The Public Appointments Committee of Parliament also summoned the Account General on funds meant to fight against COVID-19, but were reportedly abused by senior government officials. The President has since directed that all persons involved in such corruption should be arrested and demanded they pay back the money. After this directive, the police arrested 14 officers alleged to have abused funds. For more details, see the ICNL-ECNL COVID-19 Civic Freedom Tracker’s entry for Malawi and the News Items section below in this report.
In October 2021, President Lazarus Chakwera assented to controversial Labour Relations (Amendment) Bill —which limits the period for industrial action by employees to three days. Section 46(4) provides that an employee shall receive wages for a maximum of three days in a year where he is absent from work due to participation in a strike, whether such absence is consecutive or not, or related to the same subject of the strike, or not. This is notwithstanding the protests against the amendment by the local and international labor unions. For example, the International Trade Union Confederation issued a statement denouncing the passing of the Labour and Employment (Amendment) Bill of 2021.
Civil society in Malawi encompasses non-governmental organizations (NGOs), faith based organizations, trade unions and other groups that have existed since before Malawi attained independence in 1964. However, prior to and soon after independence, the work of these groups remained largely developmental. The NGOs that promote human rights and work in advocacy emerged only at the dawn of multiparty democracy in 1994.
Nonetheless, civil society has been central to Malawi’s progress. NGOs have played an important role in furthering democracy and human rights, social and economic development, and nation-building. In October 2005, Andrew Galea Debono of the Commonwealth Human Rights Initiative noted that while it is true that many NGOs, the media, academics and many other community groups focus primarily on providing services to the community, experience has shown that they have also often been key facilitators of government-citizen dialogue, as well as having an important role of monitoring government activities.
NGOs have also earned a reputation for playing a vital role in being the voices of the voiceless in Malawi and have helped to consolidate a democratic culture in the country since the institution of multi-party democracy in 1994 by providing checks and balances to counter governmental corruption. Their contributions also have been seen in areas such as health, education, and environment. Arts and culture organizations have also played a critical role in safeguarding and preserving Malawi’s identity, while human rights groups have made strides in raising community awareness of negative cultural traditions and beliefs such as child marriage and witchcraft. However, some advances in deepening human rights in Malawi have at times faced resistance from the citizenry, particularly on lesbian, gay, bisexual, and transgender (LGBT) issues.
Due to their watchdog role, NGOs have on many occasions turned out to be among the government’s fiercest critics, and at times government officials have labeled them as an “opposition” force. Such acrimony has resulted in a number of civil society activists working in a very politically sensitive environment, with frequent threats and physical and emotional harassment. While political threats and intolerance were the order of the day during the government led by President Bingu wa Mutharika, who died in April 2012, these tendencies resurfaced in 2013 under the government led by President Joyce Banda of the Peoples Party (PP). In April 2013, for example, a tribal chief was forced into hiding for appearing to criticize the President, while another NGO leader was harshly reprimanded for criticizing government policies on May 1, 2013.
President Peter Mutharika, who took office on May 31, 2014, announced in September 2014 that his government would prioritize the review of Malawi’s NGO Act, which is discussed further in the Pending NGO Legislative / Regulatory Initiatives section below in this report. This is one of the latest examples of the ongoing pressures on civil society. The review of the NGO Act and a corresponding NGO Policy comes amid growing concern among NGOs that the current legal framework is more constraining than enabling for civil society, especially in the context of registration and operations. More recently, in early 2018, the government also attempted to impose new fee hikes that NGOs would be required to pay to the NGO Board, but this has met significant opposition from NGOs. President Peter Mutharika’s electoral victory in May 2019 therefore has continued to raise concern among NGOs about potential restraints on civil society.
In 2020, there were many developments that affected human rights defenders and NGOs in general. Some issues affected freedom of expression, freedom of association, access to information and, in general, the shrinking space of NGOs. One notable other human rights concern was the arbitrary killing of persons with albinism, which occurred despite the constitutional guarantees of the right to life under Section 16. In addition, Section 19 of the Constitution espouses that the dignity of every person is inviolable.
NGOs have also continued to demand investigations and arrests of police officers who were on duty when Lule Buleya died in custody of Area 3 police in Lilongwe in July 2020. However, the autopsy report conducted by doctors showed that Buleya had been brutalized. Buleya had been a major witness to the killing of persons with albinism. In response to the abusive conduct of the government, and especially the police, the Office of the Ombudsman wrote the government that the moral test of government will be measured by how it treats its vulnerable children, including those with Albinism.
|Organizational Forms||Community-Based Organizations (CBOs), Faith-Based Organizations (FBOs), and Non-governmental Organizations (NGO).|
|Barriers to Entry||Laws prohibit unregistered groups, “agreements” and MoUs required for activities, and excessive fees.|
|Barriers to Activities||Any activity deemed by the NGO Board as against “public interest” is a basis for deregistration or restrictions. The police have also failed to protect NGOs from threats.|
|Barriers to Speech and/or Advocacy||The Penal Code has a number of offences that impose undue censorship of speech, such as “sedition.”|
|Barriers to International Contact||No significant legal barriers.|
|Barriers to Resources||No significant legal barriers.|
|Barriers to Assembly||Vague language in regulations, at least 48 hours advance notification requirement, excessive liabilities on organizers and participants, police use excessive force to break up protests.|
|Population||20,308,502 (July 2021 est.)|
|Type of Government||Multiparty democracy|
|Life Expectancy at Birth||male: 69.04 years; female: 75.33 years (2021 est.)|
|Literacy Rate||male: 69.8%; female: 55.2% (2015)|
|Religious Groups||Protestant 33.5% (includes Church of Central Africa Presbyterian 14.2%, Seventh Day Adventist/Baptist 9.4%, Pentecostal 7.6%, Anglican 2.3%), Roman Catholic 17.2%, other Christian 26.6%, Muslim 13.8%, traditionalist 1.1%, other 5.6%, none 2.1% (2018 est.)|
|Ethnic Groups||Chewa 34.3%, Lomwe 18.8%, Yao 13.2%, Ngoni 10.4%, Tumbuka 9.2%, Sena 3.8%, Mang’anja 3.2%, Tonga 1.8%, Nyanja 1.8%, Nkhonde 1%, other 2.2%, foreign .3% (2018 est.)|
|GDP per capita||$1,060 (2019 est.)|
|Ranking Body||Rank||Ranking Scale
(best – worst possible)
|UN Human Development Index||174 (2020)||1 – 187|
|World Justice Project Rule of Law Index||67 (2021)||100 – 0|
|Foreign Policy: Fragile States Index||46 (2021)||179 – 1|
|Transparency International||129 (2020)||1 – 180|
|Freedom House: Freedom in the World||Status: Partly Free
Political Rights: 29
Civil Liberties: 36 (2021)
|Free/Partly Free/Not Free
1 – 40
1 – 60
International and Regional Human Rights Agreements
|Key International Agreements||Ratification*||Year|
|International Covenant on Civil and Political Rights (ICCPR)||Yes||1993|
|Optional Protocol to ICCPR (ICCPR-OP1)||Yes||1996|
|International Covenant on Economic, Social, and Cultural Rights (ICESCR)||Yes||1993|
|Optional Protocol to ICESCR (OP-ICESCR)||No||—|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Yes||1996|
|Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||Yes||1987|
|Optional Protocol to the Convention on the Elimination of Discrimination Against Women (OP-CEDAW)||Yes||2000|
|Convention on the Rights of the Child (CRC)||Yes||1991|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)||Yes||—|
|Convention on the Rights of Persons with Disabilities (CRPD)||Yes||2009|
|African Charter on Human and People’s Rights (ACHPR)||Yes||1990,|
|African Charter on the Rights and Welfare of the Child||Yes||1999|
* Category includes ratification, accession, or succession to the treaty
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:
- 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))
- 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)).
- 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)).
- 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.
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 . 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.
In 2020, the government initiated a review of the NGO Act. The review has been aimed at making NGOs more accountable on their activities. However, NGOs perceive the review as an attempt to reduce the operating space for NGOs in Malawi. As part of the review, the NGO Board has stopped the United Mission Foundation (UMF) from operating in the country on account that it is not registered with the Board. It also alleged that UMF has been illegally soliciting money from people in Dowa and Lilongwe Rural districts. However, this decision was reversed later in July 2020 after the UMF satisfied the requirements.
Despite protests by NGOs against the NGO Amendment Bill, as of November 2021 the government has remained steadfast in its resolve to have the NGO Act amended.
 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.
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.
2. 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.
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. As of 2021, there has still been no new developments on the ATI Law.
Most recently, the commencement date for the implementation of the Access to Information law was made in April 2021 and the law is supposed to be operational. However, the Public Information Commission whose powers have been given to the Malawi Human Rights Commission is yet to be set up. This limits the effective implementation of the law as well as the effective enjoyment of the right to access information. To date, there are no practical mechanisms for lodging a complaint where one is deprived of the right to accessing information because there are no operational structures to implement it.
3. 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”  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 planned another national demonstration for April 27, 2018 to continue to urge for the reforms to be passed in Parliament. As of February 2022, however, these Bills have not been passed.
 A “ring-fence” is a protection-based transfer of assets from one destination to another, usually through the use of offshore accounting.
4. Local Government Amendment Act
The government has been amending the Local Government Act, which allows for little participation of NGOs and citizens generally. The proposed Local Government Amendment Act similarly limits the involvement of NGOs in local council meetings and operations. This Act would hinder transparency and accountability in the management of public resources at the council and community levels, and NGOs accordingly opposed it in an October 2020 meeting.
5. National Advocacy Platform (NAP) Civil Society Dialogue Mechanism
In order to strengthen NGO engagement with the government, NGOs under the banner of the National Advocacy Platform (NAP) developed a Civil Society Dialogue Mechanism in August 2021, which has been submitted to the Secretary to the President and Cabinet. Through this proposal, civil society in Malawi seeks to propose a process for the development and adoption of a National Dialogue Mechanism to facilitate and normalize meaningful cooperation between civil society and the Malawi government. It is expected that the mechanism will build on already existing dialogue and coordination efforts, including Country Coordination Mechanisms (CCMs), and will improve government responsiveness to prevailing governance and human rights issues. In addition, it will maximize citizen participation and contributions to policy making and implementation.
Please help keep us informed; if you are aware of pending initiatives, write to ICNL at firstname.lastname@example.org
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.
In order to strengthen CSO engagement with government, CSOs under the banner of the National Advocacy Platform (NAP) developed a Civil Society Dialogue Mechanism which has now been submitted to the President and Cabinet. Through this proposed dialogue mechanism, CSOs in Malawi seek to facilitate and normalize meaningful cooperation between civil society and the Government of Malawi. Building on existing dialogue and coordination efforts, including Country Coordination Mechanisms (CCMs), it is expected that the Civil Society Dialogue Mechanism will improve government responsiveness to governance and human rights issues and maximize citizen participation in policy making and implementation.
Barriers to Entry
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:
- A certified copy of the constitution of the NGO;
- 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);
- A plan of the activities which the NGO intends to undertake;
- 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;
- Proof that the NGO is a member of CONGOMA;
- A statement that the NGO shall not engage in partisan politics including electioneering and politicking; and
- 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:
- 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;
- The name and address of the NGO’s auditors, who are acceptable to the Board;
- 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.
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 –
- its audited annual financial statements
- its annual report outlining the activities undertaken by the NGO in the year and such other information as may be prescribed;
- an annual return reflecting details of its trustees, directors, office bearers, auditors and such other information as may be prescribed; and
- 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.
In addition, in an attempt to shrink civic space, the government reiterated its stance to close some NGOs in November 2020 under the guise that they are not sufficiently accountable with resources that they are receiving from donors. This is not realistic, however, because donor would not give grants to NGOs without statutory audits. In addition, based on the NGO Act, all registered NGOs are required to submit annual returns with the NGO Board. This means that government has a clear mechanism of dealing with NGOs if they are not complying with the law.
There have always been threats of deregistration of NGOs from all governments starting from United Democratic Front, through the Democratic Progressive Party government right to the Tonse (Together) Alliance that came to power in 2020. Late President Bingu wa Mutharika, in fact, threatened deregistration of NGOs during his political rallies. The government also used the Malawi Revenue Authority to interfere with NGOs work to inquire about tax matters, but not not necessarily in good faith. Rather, the purpose was to intimidate the NGO members. Under the current government, Gender, Community Development and Social Welfare Minister Patricia Kaliati has also been known to tell CSOs to be accountable or risk being deregistered. In Salima township, there have also been cases where Cabinet ministers and other government officials have encouraged the NGO Board to deregister NGOs when they are operating in the district without following proper procedures.
In 2021, the NGO Board stopped the United Mission Foundation (UMF) from operating in the country on account that it is not registered with the Board. It was also alleged that UMF has been illegally soliciting money from people in Dowa and Lilongwe Rural districts. In a related development, the Chikwawa District Council bemoaned the lack of compliance by NGOs in the district. The Chikwawa Acting District Commissioner, Stalin Zinkanda, faulted NGOs for failing to disclose their budgets and held that it was mandatory for partners to disclose how much money is coming into the district for any particular project. However, only 29 percent of NGOs in the district disclosed their budgets.
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.
In addition, one notable case of a physical attack and legal harassment of NGO activists was when the Rights Defenders Coalition (HRDC) leaders, Gift Trapence and Macdonald Sembereka, were dragged to court by the government on misuse of funds despite the donors clearing them of the same issue. The government, however, pushed the issue because the two were seen to have “interfered” by monitoring the government’s operations. There was also a raid on Sembereka’s home, and HRDC official Billy Mayaya was attacked in view of police in Blantyre.
Fee Hikes on NGOs
Although the NGO Amendment Bill is yet to be passed, the government has already promulgated fee hikes for NGOs. 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 reduce 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 the 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.
Despite the above, the NGO Board has issued notice to NGOs about the Non-Governmental Organizations (Fees) Regulations, 2021 and advised NGOs to resume paying fees as per that Regulation. The government actions contradicted the ongoing attempts to amend the NGO Act. In the previous review meeting on the amendments of the NGO Act, the taskforce stakeholders agreed that a new fee amount should be arrived through consultations. Therefore, NGOs were surprised that the notice came without engaging its taskforce representatives. This poses a threat to NGOs because the fees as gazetted are too excessive for the majority of the NGOs that are donor dependent.
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.
There has been state subversion and sometimes infiltration of NGOs in order to undermine the advocacy or activism of independent organizations through overt or covert means, including placing state agents within then. In addition, there has been financial or political support for government-affiliated NGOs. There have also been cases where NGOs have benefited from political parties or financial support provided by the government. Some activists and their NGOs have also been used as a platform to fulfil political agendas by publicly siding with a political party.
It should be noted that 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.
In September 2019, the Media Institute for Southern Africa (MISA)’s Malawi Chapter challenged the Malawi Communication Regulatory Authority (MACRA)’s ban on holding a live phone-in program because it was an attempt by government to shrink the operating space of the media under the guise that live reporting of demonstrations were a source of violence in Malawi. However, the court ruled in favor of MISA’s Malawi Chapter and found that the ban by MACRA violated the freedom of the press and access to information (sections 25 and 37 of the Constitution of Malawi).
In October 2021, the controversial Labour Relations (Amendment) Bill was enacted. The new law limits the period for industrial action (i.e., strikes) by employees to three days. Section 46(4) provides that an employee shall receive wages for a maximum of three days in a year where he is absent from work due to participation in a strike, whether such absence is consecutive or not, or related to the same subject of the strike, or not. The new law thus undermines the right of employees to participate in strikes.
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.
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.
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.
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 compared to previous years, the state has failed to provide sufficient protection to organizers and participants in assemblies, many of which have been deemed political in nature.
Following clashes between the Democratic Progressive Party loyalists and demonstrators in September 2019, the Human Rights Defenders Coalition (HRDC) leadership called off demonstrations after they turned violent. In the process, the HRDC Chairperson for the South, Dr. Billy Maya, was assaulted while four other demonstrators were equally injured. The Public Affairs Committee (PAC) condemned the police for the violence because it is alleged that the assaults of the HRDC demonstrators were done in the presence of the police.
In response to that fracas, the Malawi Human Rights Commission conducted investigations into the matter. Apparently, notice was made to the police as well as the city council before the demonstration. However, at the last hour, Democratic Progressive Party (DPP) loyalists organized counter demonstrations against the HRDC, which led to the fracas.
Furthermore, in September 2019, protesters were assaulted by security personnel in Karonga District, leading to the death of one protester who was in custody. The deceased protester was reportedly beaten by the army following assaults by some military personnel on the demonstrators. However, despite the demand for justice for the deceased, the police were yet to produce a report on the investigations as of October 2019.
Continued demonstrations affected the Queen Elizabeth Hospital in Blantyre in September 2019, where police teargassed the children and maternity sections. This created panic and patients became helpless due to tear gas. The incident demonstrated carelessness on the part of the police who did not consider the protections that hospitals require when chssing demonstrators into the hospital. The international community as well as local stakeholders condemned the conduct of the police and urged them to show restraint.
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.
On April 8, 2020, the Minister of Health imposed a nationwide lockdown that prohibits all individual movement, with limited exceptions. Individuals in need of an essential service outside of their locality were required to obtain a permit from their local council. All gatherings of more than ten people were suspended. The Malawi Defence Force, the Malawi Police Service and the Department of Immigration and Citizenship Services were deployed to ensure strict compliance with these measures. On March 20, 2021, a government order also also established a one-month “state of disaster” due to the coronavirus. It prohibited gatherings of more than 100 individuals.
|UN Universal Periodic Review Reports||Malawi (November 1, 2010)|
|USIG (United States International Grantmaking) Country Notes||None|
|U.S. State Department||2020 Country Reports on Human Rights Practices: Malawi|
|Fragile States Index Reports||Foreign Policy: Fragile States Index|
|IMF Country Reports||Malawi and the IMF (June 25, 2013)|
|International Commission of Jurists||ICJ submission on Malawi to Human Rights Committee (April 30, 2013)|
|International Center for Not-for-Profit Law Online Library||Malawi|
While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at email@example.com.
Growing Levels of Corruption (February 2022)
One striking disclosure has been the purported audio leakage of the Director General of the Anti-Corruption Bureau (ACB). In the said audio, the ACB Chief lamented the scale of corruption in the country and further bemoaned lack of support from the President and strategic allies such as Director of Public Prosecution, Attorney General’s Office, and Police. Following the audio leakage, the President summoned the Bureau Chief and warned her for breach of the oath of secrecy.
CSOs urge arrest of Minister of Civic Education (December 2021)
In a joint statement, some civil society organisations urged the police to arrest the Minister of Civic Education Timothy Mtambo and the leadership of the Human Rights Defenders Coalition (HRDC) if the police believe that was a valid charge. According to the statement, Mtambo and his colleagues “led the endless violent demonstrations between May 2019 and April 2020, where billions of kwacha-worth of property was damaged, and left scores of people injured, including the gruesome murder of the late senior police officer Usuman Imedi”.
CSOs want same-sex criminal laws annulled (December 2021)
The Centre for Human Rights and Rehabilitation (CHRR), Centre for the Development of People (Cedep) and Nyasa Rainbow Alliance have asked government to annul laws that criminalise consensual same-sex conduct.
Beam Trust on Anti-Corruption Bureau Radar (July 2021)
The Anti-Corruption Bureau (ACB) has confirmed ongoing investigations into a garbage collection contract Blantyre City Council (BCC) awarded to former first lady Gertrude Mutharika’s Beautify Malawi (Beam) Trust. It is alleged that the contract was awarded without following procedures. The contract, signed in 2017, allowed Beam Trust to lease out two trucks to BCC at a cost of K60,000 per day as refuse collection vehicles. The trucks were a donation from the People’s Republic of China to the charity organisation, which the former first lady founded.
Ntcheu NGOs Shunning Remote Areas (May 2021)
NGO Board Service Centre Officer for Ntcheu, Priyanka Jere, says by shunning to work in hard to reach areas, community livelihoods will continue to be vulnerable. It comes to our attention that distribution of projects among NGOs is mainly focusing on areas with easy accessibility,” Jere said. However, Jere says the board will continue engaging NGOs for fair distribution of developmental activities across the district.
NGO calls for greater SRHR awareness among girls (May 2021)
Sexual and reproductive health rights (SRHR) activists have called for greater awareness on SRHR among women and girls with disabilities, observing that most of them are ignorant about their rights.
National Advocacy Platform Against Selective Justice (August 2020)
National Advocacy Platform (NAP) has advised President Lazarus Chakwera to strengthen civil society’s space unlike what was happening with Democratic Progressive Party (DPP) regime and stressed that the law should be applied fairly to all with no room for selective justice in the Tonse Alliance-led government.
Malawi high court sets aside coronavirus lockdown pending review (April 2020)
On April 19, a Malawi high court granted a temporary injunction against the government’s 21-day coronavirus lockdown period, pending a judicial review within seven days. Justice Kenyatta Nyirenda set aside the lockdown in response to a challenge by the Malawi Human Rights Defenders Coalition (HRDC), which argued that more consultation was needed to prevent harm to the poorest and most vulnerable of society. “Since the injunction obtained is a temporary relief pending judicial review, our expectation is that our civil society and the courts will be guided by the law and what is in the best interest of Malawians when the matter finally comes for a hearing and determination,” the Presidential Press Secretary said.
Court sides with MCP witness Suleman on network hitches (November 2019)
The Constitutional Court in Lilongwe, hearing the presidential elections case in which leader for UTM, Dr Saulos Claus Chilima and leader for Malawi Congress Party (MCP), Dr Lazarus Chakwera want the results of the May 21 polls to be nullified and subsequently re-run the same, has ruled in favour of Daud Suleman to demonstrate in court, using computer gadgets, how the polls were rigged.
Malawi Political Standoff Shows No Sign of Abating (October 2019)
The political impasse in Malawi stemming from disputed May elections shows no sign of ending. President Peter Mutharika has offered to negotiate with the opposition, but opposition parties say the president is illegitimate and should step aside. Political tensions started rising in May when opposition leaders rejected election results that showed President Peter Mutharika winning a second term.
Malawi Police fire teargas inside Queens Hospital (September 2019)
Police in Blantyre fired teargas inside Queen Elizabeth Central Hospital, a major referral hospital in the Southern Region. The incident happened after clashes between protesters and Democratic Progressive Party (DPP) where Human Rights Defenders Coalition (HRDC) member Billy Mayaya was also assaulted. The chaotic scenes erupted after the anti-Jane Ansah protesters met along the Masauko Chipembere Highway. The two groups pelted stones at each other and some protesters run to a Malawi Defence Force camp to seek refuge while others fled to Queen Elizabeth Central Hospital premises.
ACB banks on chiefs for corrupt free-elections (May 2019)
The Anti-Corruption Bureau (ACB) has called upon chiefs in the country to refuse bribes from political candidates competing in the upcoming elections who would want the chiefs to be biased towards them and in turn influence their subjects on who to vote for compromising the credibility of elections.
Central Region Police boss, 8 others implicated in Buleya’s death (May 2019)
A report on the death of Buleya Lule released Wednesday has implicated nine police officers including Acting Commissioner for the Central Region Police Headquarters Evalista Chisale. The nine are suspected to have taken a role in the death of Buleya who was arrested over the killing of a boy with albinism but died in police custody. The Malawi Human Rights Commission (MHRC) said in its report that the criminal investigations should also cover those police officers and persons who may be revealed by the criminal investigations but were not covered by the Commission’s inquiry. On 13th February 2019, a boy with albinism named Goodson Fanizo was abducted by unknown persons at his home in the area of Traditional Authority Chilikumwendo in Dedza District. Two of the suspects arrested after the abduction claimed that Buleya was the one who sent them to kidnap the boy.
New concern for albino attacks as Malawi elections loom (February 2019)
A group of United Nations experts called on the Malawi government to act quickly to prevent people with albinism from attacks and killings linked to cultural superstitions, especially as the May elections approach. President Peter Mutharika said that Malawians should not politicize the problem, as his government came under fire for not doing enough to protect people and ensure justice for victims. Church leaders in Blantyre pressed for better enforcement in January, while international NGOs including Amnesty International and Under the Same Sun have long insisted on human rights protections in Malawi as well as neighboring Tanzania, Mozambique and other southeastern nations.
Malawi elections: women urged to come forward (February 2019)
God Cares Rights Foundation has urged the Malawian female aspirants to publicise their manifestos, ahead of the country’s Tripartite elections schedule for May 21, 2019. The foundation is the implementer of the 50-50 Campaign in Rumphi, Malawi. The 50-50 Campaign is aimed at achieving an improved participation and representation of women in leadership and decision-making positions in Malawi.
Clash on NGO law (November 2018)
Battle lines appear to be drawn between governing DPP and opposition MCP on the scheduled tabling of NGO (Amendment) Bill in Parliament which civil society organisations (CSOs) have protested as threatening their civic space. While leader of the House Kondwani Nankhumwa indicated there was no notice of withdrawal of the Bill, the Malawi Congress Party (MCP) said it was meeting the CSOs through the Council for NGOs in Malawi (Congoma) before taking a final stand.
CSOs call for review of Malawi NGO Policy (March 2018)
Non-Governmental Organisations (NGOs) in the country have mandated the Council for Non-Governmental Orgamisations (CONGOMA) to seek a court injuction or hold demostrations if dialogue with government on hiked annual fees that NGOs will be required to pay to the NGO Board does not yield the desired results.
Salima CSOs punch holes in draft NGO Policy and amendments Bill (June 2017)
Members of Salima civil society network have asked the government to re-work the draft NGO Policy to be in line with domestic and international human rights standards. The CSOs made the recommendations during the draft NGO Policy consultative meeting organized by Centre for Human Rights and Rehabilitation (CHRR). The CSOs fear controversial provisions, such as CSOs handing over of assets to the government when the winding up of the project takes place. This will weaken a number ofCSOs who need such assets for their own sustainability and resource mobilization.
Parliamentary committee starts ‘Maizegate’ inquiry today (January 2017)
The Parliamentary Committee on Agriculture will start a parallel inquiry into how Admarc bought the now suspicious 100,000 metric tonnes of maize from Zambia. The chairman of the Agriculture Committee of Parliament has said the parallel maizegate inquiry will work together to get to the bottom of the matter. The inquiry comes at a time when some quarters of Malawians have expressed a vote of no confidence in the President-appointed commission of inquiry. The commission of inquiry is expected to to finish its job by January 31 2017.
Malawi’s NGO fight for survival (February 2016)
Council for Non Government Organisations (CONGOMA) Board chair MacBain Mkandawire has claimed that the claime that 90 percent of donor money has not be accounted for by CSOs in the country is a gimmick that is meant to administratively create criminals out of CSOs and provide excuses for intrusions, cracksdowns and closures of CSOs.
Stakeholders speak on new NGO Board Policy (May 2016)
“We made a mistake to come up with a law before a policy document, said Council for Non-Governmental Organization (CONGOMA) Board Chair MacBain Mkandawire in an interview. He also said that the NGO Board of Malawi should be independent in execution of its mandate and that it is lacking transparency.
Parliament to Consider Access to Information Bill (February 2016)
We made a mistake to come up with a law before a policy document. Council for Non-Governmental Organization (CONGOMA) Board Chair MacBain Mkandawire, in an interview appeals that NGO Board of Malawi should be independent in execution of its mandate and accuse NGO Board of lacking transparency.
Government enacting new Information Law (February 2016)
The Government of Malawi is currently in the process of enacting the new Access to Information Law whose development process started five years ago. While the draft Bill proposed the creation of the Independent Public Information Commission, the media reports indicate that the final consideration of the Bill by the Cabinet has led to the removal or alteration of provisions in the Bill that provided for the establishment of the Independent Public Information Commission.
Need for citizen to use their constitutional rights (February 2016)
The country’s Center for Investigative Journalism in Malawi (CIJM) has hinted the need for citizen to use their constitutional rights cautiously by putting trusted individuals into leadership positions in a bid to deter thieves from public funds. The observation comes amid serious dwindling of social-economic services in the country including depreciation of the Malawi Kwacha, rising in inflation rates leading to skyrocketing goods and services prices, lack of food and medical supplies in public hospital and worsening hunger crisis.
Pressure to Reject Information Bill (January 2016)
The media has been awash with demands that Parliament should reject the Information Bill once Government presents it for enactment.
Kaliati rails at Malawi CSOs for not helping flood victims (January 2015)
Minister of Gender, Children, Disability and Social welfare, Patricia Kaliati, has turned her ire on Civil Society Organisations (CSOs) which were on the forefront of January 13 demonstrations for being silent on the flooding situation that has so far taken at least 150 lives in the country. The minister argued that CSOs also have a duty to help the citizens but wondered why they have failed to break the silence in assisting flood victims in the country. In reaction, a CSO’s spokesperson, Timothy Mtambo, railed at Kaliati, arguing “We are totally concerned with the situation like in the country in as far as the floods are concerned and we are trying to our level best to help them as we are searching for more donors and other organisations abroad to help us on the matter.”
CSOs demand good leadership (January 2015)
CSOs have demanded good leadership and financial prudence by the incumbent administration. This followed the abuse of funds, and the withdrawal of funding from the Global Fund for AIDS. CSOs under the banner of The Grand Coalition for the Defense of Democracy and Good Governance marched and presented a petition to government to swiftly address the issue through its agencies.
Malawi ranks 16th in African Government Index (October 2014)
Despite growing discontent with the current administration in the country, including its measures to restrict to civil society, Malawi’s score on the International Index of African Governance (IIAG) increased the most it ever has since 2000, although the score was still below the average in southern Africa. Malawi now ranks 16th in Africa.
Malawi NGOs urged to be transparent (September 2014)
The president has continued to announced that the review of NGO Act is to improve internal governance and make it more responsive to the “needs and realities” of NGOs. Civil society, however, believes the review will lead to “entrenched oppression” and greatly limit the operations of NGOs.
President announces NGO Act to be Reviewed (August 2014)
President Peter Mutharika announced that his government would prioritize the review of Malawi’s NGO Act. According to those knowledgable about the goverment’s plans, the new NGO Act would allow the intelligence services to monitor NGO operations and the President’s office to review any request to carry out research in the country, among other restrictive provisions.i
Voter Education NGOs May Face Backlash from Certain Candidates (May 2014)
Malawi will be holding the Tripartite Elections on May 20, 2014 and a number of NGOs have been accredidated to conduct voter education. The selected NGOs will also be monitoring election during the poling day. As the heat builds up, some of the NGOs are likely to be accused of favouring certain candidates, which might have the impact on the image of NGOs. NGOs have repeatedly urged the Malawi Electoral Commission to timely deal with electoral irregularities, arguing political parties might use that to discredit the results and challenge them.
Malawi NGOs told to register by June 30 or else (July 2013)
Unregistered Non-Governmental Organizations (NGOs) have until June 30, 2013 to get registered with NGO board or else face the law, said the Chairperson of the NGO Board, Emily Banda. She pointed out that the NGO Board works in the interest of government and the NGO fraternity since NGOs compliment government efforts. “NGOs should get registered with us so that we move together, we don’t want any casualties,” Banda said. The Chairperson of Operations and Compliance at the board, Kent Mphepo said there is a lot of indiscipline within the NGO sector which needs to be dealt with. He cited an example of Chitipa, which has 87 NGOs in the records, but only two are operating on the ground.
The foregoing information was collected by the ICNL Civic Freedom Monitor partner organization in Malawi.