CHAPTER 14:03
RESTRICTION AND SECURITY ORDERS

ARRANGEMENT OF SECTIONS

   SECTION

   1.   Short title

   2.   Interpretation

   3.   Power to make restriction orders

   4.   Power to make security orders

   5.   Procedure for making orders

   6.   Service of notice and arrest

   7.   Powers of judges or magistrates

   8.   Detention in custody pending decision

   9.   Contents of orders

   10.   Execution of orders

   11.   Expenses

   12.   Persons undergoing sentence

   13.   Revocation and variation of orders

   14.   Penalties for breach of order

   15.   Penalty for harbouring

   16.   Institution of proceedings

   17.   Evidence

   18.   Minister may make orders in relation to persons subject to restriction orders

   19.   Arrest without warrant

   20.   Rules

   21.   Appointment of magistrates

32 of 1954
G.N. 22/1963
73/1964(M)
166/1967

An Act to Regulate the Making of Restriction and Security Orders in Respect of Undesirable and Convicted Persons

[1ST NOVEMBER 1954]

1.   Short title

    This Act may be cited as the Restriction and Security Orders Act

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “convicted person” means a person in respect of whom any court certifies to the Minister that he has been convicted, either by that court or by any inferior court from which his case has been brought by way of appeal, of any offence punishable with imprisonment otherwise than only in default of payment of a fine;

   “judge” means a Judge of the High Court;

   “magistrate” means, subject to section 6 (2) and (3), a person appointed to be a magistrate for the purpose of this Act under section 21;

   “person charged” means a person in respect of whom it is alleged that there are grounds for making a restriction order or security order under this Act and includes a person in respect of whom such an order has been made;

   “restriction order” means an order prohibiting the person in respect of whom it is made from entering or from leaving an area within Malawi without the consent of the officer specified in the order;

   “security order” means an order requiring the person in respect of whom it is made to give security in two or more sureties in such amount and for such time as may be therein specified to keep the peace and to be of good behaviour, or for indemnifying public funds for all costs, charges and expenses incurred in his regard, or for both such purposes, as may be appropriate in the case;

   “undesirable person” means a person who is or has been conducting himself so as to be dangerous to peace, good order, good government or public morals, or who is or has been attempting, or conducting himself in a manner calculated, to raise discontent or disaffection among the citizens or the inhabitants of Malawi, or to promote feelings of ill-will and hostility between different races or classes of the population of Malawi.

3.   Power to make restriction orders

   Subject to this Act, the Minister may, if he thinks fit, make a restriction order in respect of any person who is—

   (a)   a convicted person in respect of whom the court certifying to the Minister that he has been convicted recommends that a restriction order should be made in his case, either in addition to or in lieu of sentence;or

   (b)   an undesirable person.

4.   Power to make security orders

   (1) Subject to this Act, the Minister may, if he thinks fit, either in addition to making a restriction order under section 3 or separately, make a security order in respect of any person who is—

   (a)   a convicted person in respect of whom the court certifying to the Minister that he has been convicted recommends that a restriction order or a security order or both should be made in his case, either in addition to or in lieu of sentence;or

   (b)   an undesirable person.

   (2) Where a security order is made as aforesaid, a restriction order shall be made in conjunction therewith to come into force upon default of compliance with the security order within a time therein fixed.

   (3) Where a security order has been complied with, the order shall, for the purposes of this Act, be deemed to remain in force so long as the security given thereunder subsists, and where a security order is revoked the said security shall cease to have effect.

5.   Procedure for making orders

   Except where a court has, in accordance with this Act, given a certificate recommending that an order should be made, no restriction order or security order shall be made under this Act except where a judge or magistrate has, in accordance with section 7, made a report on the case and the Minister is satisfied, having regard to the findings of fact and any conclusions of law as stated in the report, that such order may lawfully be made.

6.   Service of notice and arrest

   (1) A notice in the prescribed form shall be served upon the person charged specifying, with sufficient particulars to give him reasonable information as to the nature of the facts alleged against him, the grounds upon which it is proposed that an order may be made against him under this Act, and requiring him to show cause, before a judge or magistrate at a place and time to be stated in the notice, why such order should not be made in respect of him.

   (2) In any case where it is intended to take proceedings against any person under this Act on the ground that he is an undesirable person, and it is represented on oath or affidavit to a judge or to a Resident Magistrate or a magistrate of the first or second grade that that person is an undesirable person, such judge or magistrate may issue a warrant for his arrest, and if the notice mentioned in subsection (1) shall not already have been served upon him, it shall be so served not later than twenty-four hours after his apprehension.

   (3) In any case where it is intended to take proceedings against any person under this Act on the ground that he is an undesirable person, and it is represented on oath or affidavit to a judge or to a magistrate of the first or second grade that, in fact or according to a reasonable suspicion, anything which is necessary to the conduct of the proceedings or tending to throw light on the question of whether or not the person is an undesirable person, is in any building, ship, aircraft, vehicle, box, receptacle or place, such judge or magistrate may by warrant (called a search warrant) authorize a police officer, or other person therein named, to search the building, ship, aircraft, vehicle, box, receptacle or place (which shall be named or described in the warrant) for any such thing, and if any thing searched for be found, to seize it and carry it before the judge or magistrate who is to take or consider evidence in accordance with section 7.

   (4) Sections 114 and 115 of the Criminal Procedure and Evidence Code shall apply to search warrants issued under subsection (3) and any magistrate issuing a search warrant under that subsection shall be deemed to have jurisdiction throughout Malawi. When any thing is seized and brought before a judge or magistrate, it may be detained until the conclusion of the investigation, reasonable care being taken for its preservation and, after the order of the Minister is known, it shall be returned to the person in whose possession it was found, or otherwise dealt with as the Minister may direct or, in default of such direction, as the judge or magistrate shall direct.

   (5) Notwithstanding section 71 of the Criminal Procedure and Evidence Code, the Attorney General may request the judge or magistrate to direct that any proceedings under this Act in respect of a person charged with being an undesirable person, or any part of such proceedings shall be held in camera; and, if the Attorney General shall certify to the judge or magistrate that it is in his opinion desirable in the public interest that the proceedings, or such part thereof as the Attorney General may specify, shall be held in camera, the public generally or any particular person or class of persons specified by the Attorney General shall not have access to, or be or remain in, any room or building in which such proceedings are held during such proceedings or part thereof.

7.   Powers of judges or magistrates

   (1) At the time appointed in the notice served under section 6, or as soon as practicable thereafter, or at any adjournment of the hearing, the judge or magistrate shall take or consider such evidence upon oath or, subject to subsection (3), upon affidavit as is tendered in support of the allegations contained in the notice, and where the evidence is on affidavit, the person charged shall be informed of the general nature of such evidence, and where the evidence of witnesses is taken orally at the hearing, the witnesses may be cross-examined by the person charged or his legal practitioner, and the person charged may on his own behalf call such witnesses and tender such other evidence as may be relevant upon the question at issue.

   (2) The judge or magistrate, after considering the evidence adduced before him and making any further investigations which he may consider to be desirable, shall make a report to the Minister setting out his findings of fact and his conclusions on any questions of law involved, and, if he thinks fit, making a recommendation as to the issue in the case of any order or orders under this Act.

   (3) Notwithstanding subsection (1), a judge or magistrate may, before permitting evidence to be given on affidavit, require production, by the party tendering such evidence, of a certificate signed by the Director of Public Prosecutions that it is, in his opinion, necessary that the evidence be given on affidavit, and upon production of any such certificate the evidence on affidavit shall be received.

   (4) A judge or magistrate in taking or considering evidence under this section shall not be bound by any rules of evidence which may pertain to civil or criminal proceedings, but any witness who objects to answering any question on the ground that it will tend to incriminate him shall not be required to answer the question nor be liable to any penalty for refusing so to answer.

8.   Detention in custody pending decision

   Where a judge, magistrate or a court recommends the making of a restriction order or security order on the grounds that the person charged is an undesirable person or a convicted person, the person charged may, if the judge, magistrate or court, as the case may be, shall so order, be detained in such manner as the judge, magistrate or court may direct pending the decision of the Minister for a period not exceeding twenty-eight days, and shall be deemed to be in lawful custody while so detained.

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