CHAPTER 8:04
MUTUAL ASSISTANCE IN CRIMINAL MATTERS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title and commencement

   2.   Interpretation

   3.   Application of this Act

   4.   Appropriate authority in Malawi

   5.   Restriction with respect to operation of this Act

PART II
REQUESTS BY MALAWI TO COMMONWEALTH COUNTRIES FOR ASSISTANCE

Division 1
General Assistance

   6.   Assistance in obtaining evidence, etc.

   7.   Assistance in locating or identifying persons

   8.   Assistance in obtaining article or thing by search and seizure if necessary

   9.   Assistance in arranging attendance of persons

   10.   Assistance in transferring prisoners

   11.   Assistance in serving documents

   12.   Restriction on use of evidence, etc.

   13.   Immunities and privileges

Division 2
Assistance in Connexion with Serious Offences

   14.   Assistance in tracing property, etc.

   15.   Assistance in relation to certain orders

   16.   Assistance in obtaining orders in nature of restraining orders

PART III
REQUESTS BY COMMONWEALTH COUNTRIES TO MALAWI FOR ASSISTANCE

Division 1
Form and Acceptance or Refusal of Requests

   17.   Form of requests

   18.   Acceptance or refusal of requests, etc.

Division 2
General Assistance

   19.   Assistance to a country in obtaining evidence, etc.

   20.   Assistance to a country in locating or identifying a person

   21.   Assistance to a country in obtaining article or thing, by search and seizure if necessary

   22.   Assistance to a country in arranging attendance of persons to give evidence

   23.   Assistance to a country in transferring a prisoner

   24.   Assistance to a country in serving documents

Division 3
Assistance in Connexion with Serious Offences in Commonwealth Countries

   25.   Assistance to a country in tracing property, etc.

   26.   Assistance to a country in relation to certain orders

   27.   Assistance to a country in obtaining orders in nature of restraining orders

PART IV
MISCELLANEOUS

   28.   Certificates given by the Attorney General

   29.   Proof of documents

   30.   Transit

   31.   Escaping

   32.   Arrest of person who has escaped from custody

   33.   Regulations

       Schedule

24 of 1991
G.N. 23/1994

An Act to make provision with respect to the scheme relating to mutual assistance in criminal matters within the Commonwealth, to facilitate the operation of that scheme in Malawi and to make provision concerning mutual assistance in criminal matters between Malawi and countries other than Commonwealth countries, and to provide for matters connected therewith or incidental thereto

[1ST APRIL, 1994]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Mutual Assistance in Criminal Matters Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

   “appropriate authority”

   (a)   in relation to Malawi, means the person or authority designated pursuant to section (4);

   (b)   in relation to any Commonwealth country, means the person or authority designated by that country for the purpose of transmitting and receiving requests under the Scheme;

   “judicial records” means judgments, orders and decisions of courts, and other records held by judicial authorities;

   “official records” means documents held by government departments or agencies or prosecution authorities;

   “relevant proceedings” means proceedings under or pursuant to this or any other Act arising directly or indirectly from a request for assistance under this Act by a Commonwealth country;

   “Scheme” means the scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth;

   “serious offence” means an offence the maximum penalty for which is death or imprisonment for not less than twelve months;

   “transmitted”, in relation to a request, means—

   (a)   in Part II, transmitted by the appropriate authority in Malawi to the appropriate authority in the commonwealth country from which assistance is requested; and

   (b)   in Part III, transmitted by the appropriate authority in the Commonwealth country making a request for assistance, to the appropriate authority in Malawi.

    (2) A reference in this Act to the law of a Commonwealth country includes a reference to the law of a part of or the law in force in a part of, that country.

   (3) For the purposes of this Act, a ship or aircraft of, or registered in, Malawi or a Commonwealth country shall be deemed to be part of Malawi or, as the case may be, the Commonwealth country.

   (4) For the purposes of this Act, a person shall be deemed to have been charged with a serious offence in Malawi or in a Commonwealth country if any information or indictment has been laid or filed against the person for the offence, whether or not—

   (a)   a summons to require the attendance of the person to answer to the information or indictment; or

   (b)   a warrant for the apprehension of the person, has been issued.

   (5) Where, in Malawi or a Commonwealth country—

   (a)   a person has been convicted by a court of a serious offence; and

   (b)   with his consent, another serious offence, of which he has not been found guilty, is taken into account by the court in passing sentence for the offence referred to in paragraph (a), the person shall, for the purposes of this Act, be deemed to have been convicted by the court of the offence so taken into account on the date on which the sentence was passed.

   (6) A reference in this Act to property derived or obtained from the commission of an offence shall be deemed to include reference to property used in, or in connexion with, the Commission of the offence.

3.   Application of this Act

   (1) Subject to subsection (2), this Act shall apply in relation to all Commonwealth countries.

   (2) The Minister may, by order published in the Gazette, direct that the application of this Act in relation to a particular Commonwealth country be subject to such conditions, exceptions or qualifications as are specified in the order and in that event this Act shall apply accordingly.

4.   Appropriate authority for Malawi

   The Minister may, by order published in the Gazette, designate any person or authority as the appropriate authority in Malawi for the purpose of this Act.

5.   Restriction with respect to operation of this Act

   (1) Nothing in this Act shall derogate from existing forms or prevent the development of other forms of cooperation (whether formal or informal) in respect of criminal matters between Malawi and any Commonwealth country, or between Malawi, or any enforcement agencies or prosecuting authorities in Malawi, and the International Criminal Police Organization or any such agencies or authorities outside Malawi.

   (2) Nothing in this Act shall authorize the extradition, or the arrest or detention with a view to extradition of any person.

PART II
REQUESTS BY MALAWˆI TO COMMONWEALTH COUNTRIES FOR ASSISTANCE

Division 1
General Assistance

6.   Assistance in obtaining evidence, etc.

   Where the appropriate authority in Malawi has reasonable grounds to believe that evidence or information relevant to any criminal matter may be obtained if in a Commonwealth country—

   (a)   evidence is taken from any person;

   (b)   information is provided;

   (c)   any—

      (i)   person;

      (ii)   sample, specimen or other item from or provided by a person; or

      (iii)   remains which are or may be human, is or are subjected to any examination or test;

   (d)   judicial records or official records are produced, copied or examined;

   (e)   any record or article is produced, copied or examined;

   (f)   samples of any matter or thing are taken, examined or tested; or

   (g)   any building, place or thing is viewed or photographed,

   a request may be transmitted by such authority requesting that assistance be given by the Commonwealth country concerned in obtaining the evidence or information.

7.   Assistance in locating or identifying persons

   Where the appropriate authority in Malawi has reasonable grounds to believe that a person who—

   (a)   is or might be concerned in or affected by;

   (b)   could give or provide evidence or assistance relevant to,

any criminal matter is in a Commonwealth country, a request may be transmitted by such authority to the appropriate authority in the Commonwealth country requesting that assistance be given by the country in locating that person or, if his identity is unknown, in identifying and locating him.

8.   Assistance in obtaining article or thing by search and seizure if necessary

   Where the appropriate authority in Malawi has reasonable grounds to believe that an article or thing is in a Commonwealth country and would, if produced, be relevant to any criminal matter, a request may be transmitted by such authority to the appropriate authority in the Commonwealth country requesting that assistance be given by the Commonwealth country in obtaining, by search and seizure if necessary, the article or thing.

9.   Assistance in arranging attendance of persons

   Where the appropriate authority in Malawi has reasonable grounds to believe that a person in a Commonwealth country could give or provide evidence or assistance relevant to any criminal matter, a request may be transmitted by such authority to the appropriate authority in the Commonwealth country requesting that assistance be given by the Commonwealth country in arranging the attendance of the person in Malawi to give or provide that evidence or, as the case may be, assistance

10.   Assistance in transfering prisoners

   (1) Where the appropriate authority in Malawi has reasonable grounds to believe that a person who is a prisoner in a Commonwealth country could give or provide evidence or assistance relevant to any criminal matter, a request may be transmitted by such authority to the appropriate authority in the Commonwealth country requesting the Commonwealth country to transfer the prisoner to Malawi to give or provide that evidence or, as the case may be, assistance.

   (2) Where, pursuant to a request made under subsection (1), a prisoner is transferred to Malawi from a Commonwealth country subject to conditions with respect to his custody, release or return or with respect to any other matter, the appropriate authority in Malawi shall, unless and to the extent that the Commonwealth country waives their observance,take the necessary steps to ensure that the conditions are observed.

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