CONSTITUTION OF MALAWI

ARRANGEMENT OF SECTIONS

   SECTION

   1.   Short title

   2.   Repeal of the 1966 Constitution

   3.   The Constitution of the Republic of Malawi

20 of 1994
31 of 1994
6 of 1995
7 of 1995
1 of 1997
38 of 1998
11 of 1999
4 of 2001
8 of 2001
13 of 2001
4 of 2004
8 of 2010
11 of 2010
25 of 2012
15 of 2017

An Act to adopt and enact the Constitution of the Republic of Malawi

[18TH MAY 1994]

1.   Short title

   This Act may be cited as the Republic of Malawi (Constitution) Act.

2.   Repeal of the 1966 Constitution

   The Republic of Malawi (Constitution) Act, 1966, and the Constitution enacted thereunder and amended from time to time are hereby repealed.

3.   The Constitution of the Republic of Malawi

   The Constitution set out hereunder shall be the Constitution of the Republic of Malawi and which shall come into force in accordance with the provisions thereof.

ARRANGEMENT OF SECTIONS

   SECTION

CHAPTER I
THE REPUBLIC OF MALAWI

   1.   Malawi a sovereign state

   2.   The national flag, etc.

   3.   The national territory

   4.   Protection of the people of Malawi under this Constitution

   5.   Supremacy of this Constitution

   6.   Authority to govern, universal and equal suffrage

   7.   The separate status, function and duty of the executive

   8.   The separate status, function and duty of the legislature

   9.   The separate status, function and duty of the judiciary

CHAPTER II
APPLICATION AND INTERPRETATION

   10.   Application of this Constitution

   11.   Interpretation

CHAPTER III
FUNDAMENTAL PRINCIPLES

   12.   Constitutional principles

   13.   Principles of national policy

   14.   Application of the principles of national policy

CHAPTER IV
HUMAN RIGHTS

   15.   Protection of human rights and freedoms

   16.   The right to life

   17.   Genocide

   18.   Liberty

   19.   Human dignity and personal freedoms

   20.   Equality

   21.   Privacy

   22.   Family and marriage

   23.   Rights of children

   24.   Rights of women

   25.   Education

   26.   Culture and language

   27.   Slavery, servitude and forced labour

   28.   Property

   29.   Economic activity

   30.   Right to development

   31.   Labour

   32.   Freedom of association

   33.   Freedom of conscience

   34.   Freedom of opinion

   35.   Freedom of expression

   36.   Freedom of the press

   37.   Access to information

   38.   Freedom of assembly

   39.   Freedom of movement and residence

   40.   Political rights

   41.   Access to justice and legal remedies

   42.   Arrest, detention and fair trial

   43.   Administrative justice

   44.   Limitations on rights

   45.   Derogation and public emergency

   46.   Enforcement

CHAPTER V
CITIZENSHIP

   47.   Citizenship

CHAPTER VI
THE LEGISLATURE

   48.   Parliament

   49.   Definitions

   50.   Quorum

   51.   Qualifications of members of Parliament

   52.   Oath of allegiance

   53.   The Speaker and Deputy Speakers

   54.   Casting vote

   55.   The Clerk

   56.   The right to regulate procedure

   57.   Money Bills

   58.   Subsidiary legislation

   59.   Sessions, meetings and sittings

   60.   Privileges and immunities

   61.   Member’s interests

   62.   Composition of the National Assembly

   63.   Vacancies in the National Assembly

   64.   Recall of members [Repealed by Act No. 6 of 1995]

   65.   Crossing the floor

   66.   Functions and powers of the National Assembly

   67.   Dissolution of the National Assembly

   68.   Composition of the Senate [Repealed by Act No. 4 of 2001]

   69.   Vacancies in the Senate [Repealed by Act No. 4 of 2001]

   70.   Functions and powers of the Senate [Repealed by Act No. 4 of 2001]

   71.   Scrutiny by the Senate [Repealed by Act No. 4 of 2001]

   72.   Dissolution of the Senate [Repealed by Act No. 4 of 2001]

   73.   Presidential assent

   74.   The coming into force of laws

CHAPTER VII
ELECTIONS

   75.   The Electoral Commission

   76.   Powers and functions

   77.   The franchise

CHAPTER VIII
THE EXECUTIVE

   78.   The President

   79.   The Vice-President

   80.   Election of the President and the First Vice-President

   81.   Oath of office

   82.   Remuneration

   83.   Tenure of office

   84.   Death or resignation of the Vice-President

   85.   Vacancy of office of President and Vice-President

   86.   Removal from office

   87.   Incapacity

   88.   Responsibilities of the President

   88A.   Prevention of conflicts of interest of the President and Cabinet

   89.   Powers and duties of the President

   90.   Confirmation of decisions, etc., of the President

   91.   Immunity

   92.   Cabinet

   93.   Government departments

   94.   Appointment of Ministers and Deputy Ministers

   95.   Confirmation of appointments of Ministers or Deputy Ministers

   96.   Duties and functions of the Cabinet

   97.   Ministerial accountability

   98.   The Attorney General

   99.   The Director of Public Prosecutions

   100.   Delegation of powers to prosecute

   101.   Appointment of the Director of Public Prosecutions

   102.   Removal of the Director of Public Prosecutions

CHAPTER IX
THE JUDICATURE

   103.   The independence and jurisdiction of the courts and the Judiciary

   104.   The Supreme Court

   105.   Composition of the Supreme Court of Appeal

   106.   Acting Justices of Appeal

   107.   Relief from duties

   108.   The High Court

   109.   Composition of the High Court

   110.   Subordinate courts

   111.   Appointment of the Judiciary

   112.   Qualification of Judicial officers

   113.   Vacancy

   114.   Remuneration

   115.   Judicial oath

   116.   The Judicial Service Commission

   117.   Composition

   118.   Powers of the Judicial Service Commission

   119.   Tenure of judges

CHAPTER X
THE OMBUDSMAN

   120.   The Office of the Ombudsman

   121.   Independence of the Ombudsman

   122.   Appointment of the Ombudsman

   123.   Functions and powers

   124.   Powers of investigation

   125.   Privileges and immunities of the Ombudsman

   126.   Remedies

   127.   Reports of the Ombudsman

   128.   Removal from office

CHAPTER XI
HUMAN RIGHTS COMMISSION

   129.   Establishment of the Human Rights Commission

   130.   Powers

   131.   Composition

CHAPTER XII
LAW COMMISSION

   132.   Establishment of the Law Commission

   133.   Composition

   134.   Removal of the Law Commissioner, etc.

   135.   Powers and functions of the Law Commission

   136.   Independence of the Law Commission

CHAPTER XIII
NATIONAL COMPENSATION FUND

   137.   The National Compensation Tribunal

   138.   Exclusive original jurisdiction

   139.   Composition

   140.   Procedure

   141.   Protection of third party rights

   142.   Jurisdiction of the ordinary courts

   143.   Power to waive statutory limitations

   144.   National Compensation Fund

   145.   Winding-up of the National Compensation Fund

CHAPTER XIV
LOCAL GOVERNMENT

   146.   Functions of local government authorities

   147.   Composition of local government authorities

   148.   Jurisdiction of local government authorities

   149.   National Local Government Finance Committee, its establishment, powers and functions

   150.   Duty to provide adequate resources for local government functions

   151.   Composition of the National Local Government Finance Committee

CHAPTER XV
THE POLICE

   152.   The Malawi Police Service

   153.   Powers and functions of the Police

   154.   The Inspector General of Police

   155.   The Police Service Commission

   156.   Power to delegate

   157.   Composition

   158.   Political independence of the Malawi Police Service

CHAPTER XVI
THE DEFFENCE FORCE

   159.   The Defence Force of Malawi

   160.   Constitutional position of the Defence Force of Malawi

   161.   Responsibility for the Defence Force of Malawi

   162.   The Defence and Security Committee of the National Assembly

CHAPTER XVII
PRISONS

   163.   The Malawi Prisons Service

   164.   The Chief Commissioner for Prisons

   165.   Power to delegate

   166.   Appointment of the Chief Commissioner for Prisons

   167.   The Prisons Service Commission

   168.   Composition of the Prisons Service Commission

   169.   The Inspectorate of Prisons

   170.   Composition of the Inspectorate of Prisons

CHAPTER XVIII
FINANCE

   171.   Revenue

   172.   The Consolidated Fund

   173.   Withdrawal of money from the Consolidated Fund

   174.   Expenditure charged on the Consolidated Fund

   175.   Annual estimates

   176.   Appropriation Bills

   177.   Supplementary appropriations

   178.   Authorization of expenditure in advance of appropriation

   179.   Contingency Fund

   180.   Raising of loans by the Government

   181.   Special funds and trust moneys

   182.   The Development Fund

   183.   The Protected Expenditure Fund

   184.   Auditor General

CHAPTER XIX
THE RESERVE BANK OF MALAWI

   185.   The Reserve Bank of Malawi

CHAPTER XX
CIVIL SERVICE

   186.   The Civil Service Commission

   187.   Powers of the Civil Service Commission

   188.   Delegation

   189.   Offices to which this Chapter does not apply

   190.   The appointment of diplomatic staff

   191.   Appointment of members of the Civil Service Commission

   192.   Vacancy

   193.   Independence of the Civil Service

   194.   Appointments of boards, etc., and appointment and removal of public officers

CHAPTER XXI
AMENDMENT OF THIS CONSTITUTION

   195.   Power to amend

   196.   Restrictions on amendments

   197.   Amendments by Parliament

CHAPTER XXII
TRANSITIONAL PROVISIONS

   198.   Republic, etc., to be constituted in accordance with this Constitution

   199.   Status of this Constitution

   200.   Saving of laws in force

   201.   Elections to the National Assembly

   202.   Elections to the office of President

   203.   Saving of judicial power

   204.   Pending legal actions

   205.   Judgments and sentences pending execution

   206.   Existing appointments

   207.   Vesting lands, etc., in the Republic

   208.   Savings of rights of the Government in property

   209.   Continuation of rights of persons in property

   210.   Constitutional position pending establishment of the Senate [Repealed by Act No. 4 of 2001]

   211.   International law

CHAPTER XXIII
MISCELLANEOUS

   212.   Coming into force of this Constitution

   213.   Disclosure of assets by holders of certain offices

   214.   Short title of this Constitution

   215.   Definition

      Schedule

THE PEOPLE OF MALAWI—

   recognizing the sanctity of human life and the unity of all mankind;

   guided by their private consciences and collective wisdom;

   seeking to guarantee the welfare and development of all the people of Malawi, national harmony and peaceful international relations;

   desirous of creating a constitutional order in the Republic of Malawi based on the need for an open, democratic and accountable government:

   HEREBY adopt the following as the Constitution of the Republic of Malawi.

CHAPTER I
THE REPUBLIC OF MALAWI

1.   Malawi a sovereign state

   The Republic of Malawi is a sovereign State with rights and obligations under the Law of Nations.

2.   The national flag, etc.

   Malawi shall have a National Flag, a National Coat of Arms, a National Anthem and a Public Seal.

3.   The national territory

   The national territory of the Republic of Malawi shall consist of all the territory, including airspace, waters and islands which comprised the territory of Malawi before the commencement of this Constitution, and shall include any territory lawfully acquired thereafter by adjustment of boundaries or otherwise.

4.   Protection of the people of Malawi under this constitution

   This Constitution shall bind all executive, legislative and judicial organs of the State at all levels of Government and all the peoples of Malawi are entitled to the equal protection of this Constitution, and laws made under it.

5.   Supremacy of this Constitution

   Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.

6.   Authority to govern, universal and equal suffrage

   Save as otherwise provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament.

7.   The separate status, function and duty of the executive

   The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution.

8.   The separate status, function and duty of the legislature

   The legislature shall be responsible for the enactment of laws and shall ensure that its deliberations reflect the interests of all the people of Malawi and that the values expressed or implied in this Constitution are furthered by the laws enacted.

9.   The separate status, function and duty of the judiciary

   The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.

CHAPTER II
APPLICATION AND INTERPRETATION

10.   Application of this Constitution

   (1) In the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority.

   (2) In the application and formulation of any Act of Parliament and in the application and development of the common law and customary law, the relevant organs of State shall have due regard to the principles and provisions of this Constitution.

11.   Interpretation

   (1) Appropriate principles of interpretation of this Constitution shall be developed and employed by the courts to reflect the unique character and supreme status of this Constitution.

   (2) In interpreting the provisions of this Constitution a court of law shall—

   (a)   promote the values which underlie an open and democratic society;

   (b)   take full account of the provisions of Chapter III and Chapter IV; and

   (c)   where applicable, have regard to current norms of public international law and comparable foreign case law.

   (3) Where a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution.

   (4) Any law that ousts or purports to oust the jurisdiction of the courts to entertain matters pertaining to this Constitution shall be invalid.

CHAPTER III
FUNDAMENTAL PRINCIPLES

12.   Constitutional principles

   (1) This Constitution is founded upon the following underlying principles—

   (a)   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;

   (b)   all persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi;

   (c)   the authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice;

   (d)   the inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect 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;

   (e)   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; and

   (f)   all institutions and persons shall observe and uphold this Constitution and the rule of law and no institution or person shall stand above the law.

   (2) Every individual shall have duties towards other individuals, his or her family and society, the State and other legally recognized communities and the international community and these duties shall include the duty to respect his or her fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance; and in recognition of these duties, individual rights and freedoms shall be exercised with due regard for the rights of others, collective security, morality and the common interest.

13.   Principles of national policy

   The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals—

   (a)   Gender Equality

      To obtain gender equality through—

      (i)   full participation of women in all spheres of Malawian society on the basis of equal opportunities with men;

      (ii)   the implementation of the principles of nondiscrimination and such other measures as may be required; and

      (iii)   the implementation of policies to address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation and rights to property.

   (b)   Nutrition

      To achieve adequate nutrition for all in order to promote good health and self-sufficiency.

   (c)   Health

      To provide adequate health care, commensurate with the health needs of Malawian society and international standards of health care.

   (d)   The Environment

      To manage the environment responsibly in order to—

      (i)   prevent the degradation of the environment;

      (ii)   provide a healthy living and working environment for the people of Malawi;

      (iii)   accord full recognition to the rights of future generations by means of environmental protection and the sustainable development of natural resources; and

      (iv)   conserve and enhance the biological diversity of Malawi.

   (e)   Rural Life

      To enhance the quality of life in rural communities and to recognize rural standards of living as a key indicator of the success of Government policies.

   (f)   Education

      To provide adequate resources to the education sector and devise programmes in order to—

      (i)   eliminate illiteracy in Malawi;

      (ii)   make primary education compulsory and free to all citizens of Malawi;

      (iii)   offer greater access to higher learning and continuing education; and

      (iv)   promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance.

   (g)   Persons with Disabilities

      To enhance the dignity and quality of life of persons with disabilities by providing—

      (i)   adequate and suitable access to public places;

      (ii)   fair opportunities in employment; and

      (iii)   the fullest possible participation in all spheres of Malawian society.

   (h)   Children

      To encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.

   (i)   The Family

      To recognize and protect the family as a fundamental and vital social unit.

   (j)   The Elderly

      To respect and support the elderly through the provision of community services and to encourage participation in the life of the community.

   (k)   International Relations

      To govern in accordance with the law of nations and the rule of law and actively support the further development thereof in regional and international affairs.

   (l)   Peaceful Settlement of Disputes

      To strive to adopt mechanisms by which differences are settled through negotiation, good offices, mediation, conciliation and arbitration.

   (m)   Administration of Justice

      To promote law and order and respect for society through civic education, by honest practices in Government, adequate resourcing, and the humane application and enforcement of laws and policing standards.

   (n)   Economic Management

      To achieve a sensible balance between the creation and distribution of wealth through the nurturing of a market economy and long-term investment in health, education, economic and social development programmes.

   (o)   Public Trust and Good Governance

      To introduce measures which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and visibility will strengthen confidence in public institutions.

14.   Application of the principles of national policy

   The principles of national policy contained in this Chapter shall be directory in nature but courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.

CHAPTER IV
HUMAN RIGHTS

15.   Protection of human rights and freedoms

   (1) The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature, judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.

   (2) Any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of the Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights.

16.   The right to life

   Every person has the right to life and no person shall be arbitrarily deprived of his or her life:

   Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.

17.   Genocide

   Acts of genocide are prohibited and shall be prevented and punished.

18.   Liberty

   Every person has the right to personal liberty.

19.   Human dignity and personal freedoms

   (1) The dignity of all persons shall be inviolable.

   (2) In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.

   (3) No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.

   (4) No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State.

   (5) No person shall be subjected to medical or scientific experimentation without his or her consent.

   (6) Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be—

   (a)   detained without trial;

   (b)   detained solely by reason of his or her political or other opinions; or

   (c)   imprisoned for inability to fulfill contractual obligations.

20.   Equality

   (1) Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.

   (2) Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.

21.   Privacy

   Every person shall have the right to personal privacy, which shall include the right not to be subject to—

   (a)   searches of his or her person, home or property;

   (b)   the seizure of private possessions; or

   (c)   interference with private communications, including mail and all forms of telecommunications.

22.   Family and marriage

   (1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

   (2) Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.

   (3) All men and women have the right to marry and found a family.

   (4) No person shall be forced to enter into marriage.

   (5) Subsections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.

   (6) No person over the age of eighteen years shall be prevented from entering into marriage.

   (7) [Repealed by 15 of 2017.]

   (8) [Repealed by 15 of 2017.]

23.   Rights of children

   (1) All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them.

   (2) All children shall have the right to a given name and a family name and the right to a nationality.

   (3) Children have the right to know, and to be raised by, their parents.

   (4) All children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance.

   (5) Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to—

   (a)   be hazardous;

   (b)   interfere with their education; or

   (c)   be harmful to their health or to their physical, mental or spiritual or social development.

   (6) A child shall be a person under the age of eighteen years.

24.   Rights of women

   (1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right—

   (a)   to be accorded the same rights as men in civil law, including equal capacity—

      (i)   to enter into contracts;

      (ii)   to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;

      (iii)   to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and

      (iv)   to acquire and retain citizenship and nationality.

   (b)   on the dissolution of marriage, howsoever entered into—

      (i)   to a fair disposition of property that is held jointly with a husband; and

      (ii)   to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.

   (2) Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as—

   (a)   sexual abuse, harassment and violence;

   (b)   discrimination in work, business and public affairs; and

   (c)   deprivation of property, including property obtained by inheritance.

25.   Education

   (1) All persons are entitled to education.

   (2) Primary education shall consist of at least five years of education.

   (3) Private schools and other private institutions of higher learning shall be permissible, provided that—

   (a)   such schools or institutions are registered with a State department in accordance with the law;

   (b)   the standards maintained by such schools or institutions are not inferior to official standards in State schools.

26.   Culture and language

   Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

27.   Slavery, servitude and forced labour

   (1) No person shall be held in slavery or servitude.

   (2) Slavery and the slave trade are prohibited.

   (3) No person shall be subject to forced labour.

   (4) No person shall be subject to tied labour that amounts to servitude.

28.   Property

   (1) Every person shall be able to acquire property alone or in association with others.

   (2) No person shall be arbitrarily deprived of property.

29.   Economic activity

   Every person shall have the right freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi.

30.   Right to development

   (1) All persons and peoples have a right to development Right to and therefore to the enjoyment of economic, social, cultural and political development and women, children and persons with disabilities in particular shall be given special consideration in the application of this right.

   (2) The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.

   (3) The State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities.

   (4) The State has a responsibility to respect the right to development and to justify its policies in accordance with this responsibility.

31.   Labour

   (1) Every person shall have the right to fair and safe labour practices and to fair remuneration.

   (2) All persons shall have the right to form and join trade unions or not to form or join trade unions.

   (3) Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.

   (4) The State shall take measures to ensure the right to withdraw labour.

32.   Freedom of association

   (1) Every person shall have the right to freedom of association, which shall include the freedom to form associations.

   (2) No person may be compelled to belong to an association.

33.   Freedom of conscience

   Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.

34.   Freedom of opinion

   Every person shall have the right to freedom of opinion, including the right to hold, receive and impart opinions without interference.

35.   Freedom of expression

   Every person shall have the right to freedom of expression.

36.   Freedom of the press

   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.

37.   Access to information

   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 or her rights.

38.   Freedom of Assembly

   Every person shall have the right to assemble and demonstrate with others peacefully and unarmed.

39.   Freedom of movement and residence

   (1) Every person shall have the right of freedom of movement and residence within the borders of Malawi.

   (2) Every person shall have the right to leave the Republic and to return to it.

40.   Political rights

   (1) Subject to this Constitution, every person shall have the right—

   (a)   to form, to join, to participate in the activities of, and to recruit members for, a political party;

   (b)   to campaign for a political party or cause;

   (c)   to participate in peaceful political activity intended to influence the composition and policies of the Government; and

   (d)   freely to make political choices.

   (2) The State shall, provide funds so as to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency.

   (3) Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office.

41.   Access to justice and legal remedies

   (1) Every person shall have a right to recognition as a person before the law.

   (2) Every person shall have the right of access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues.

   (3) Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.

42.   Arrest, detention and fair trial

   (1) Every person who is detained, including every sentenced prisoner, shall have the right—

   (a)   to be informed of the reason for his or her detention promptly, and in a language which he or she understands;

   (b)   to be held under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;

   (c)   to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State;

   (d)   to be given the means and opportunity to communicate with, and to be visited by, his or her spouse, partner, next-of-kin, relative, religious counsellor and a medical practitioner of his or her choice;

   (e)   to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and

   (f)   to be released if such detention is unlawful.

   (2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right—

   (a)   promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement;

   (b)   as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be released;

   (c)   not to be compelled to make a confession or admission which could be used in evidence against him or her;

   (d)   save in exceptional circumstances, to be segregated from convicted persons and to be subject to separate treatment appropriate to his or her status as an unconvicted person;

   (e)   to be released from detention, with or without bail unless the interests of justice require otherwise;

   (f)   as an accused person, to a fair trial, which shall include the right—

      (i)   to public trial before an independent and impartial court of law within a reasonable time after having been charged;

      (ii)   to be informed with sufficient particularity of the charge;

      (iii)   to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;

      (iv)   to adduce and challenge evidence, and not to be a compellable witness against himself or herself;

      (v)   to be represented by a legal practitioner of his or her choice or, where it is required in the interests of justice, to be provided with legal representation at the expense of the State, and to be informed of these rights;

      (vi)   not to be convicted of an offence in respect of any act or omission which was not an offence at the time when the act was committed or omitted to be done, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;

      (vii)   not to be prosecuted again for a criminal act or omission of which he or she has previously been convicted or acquitted, save upon the order of a superior court in the course of an appeal or review proceedings relating to that conviction or acquittal;

      (viii)   to have recourse by way of appeal or review to a higher court than the court of first instance;

      (ix)   to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands; and

      (x)   to be sentenced within a reasonable time after conviction;

   (g)   in addition, if that person is a person under the age of eighteen years, to treatment consistent with the special needs of children, which shall include the right—

      (i)   not to be sentenced to life imprisonment without possibility of release;

         (ii)   to be imprisoned only as a last resort and for the shortest period of time consistent with justice and protection of the public;

      (iii)   to be separated from adults when imprisoned, unless it is considered to be in his or her best interest not to do so, and to maintain contact with his or her family through correspondence and visits;

      (iv)   to be treated in a manner consistent with the promotion of his or her sense of dignity and worth, which reinforces respect for the rights and freedoms of others;

      (v)   to be treated in a manner which takes into account his or her age and the desirability of promoting his or her reintegration into society to assume a constructive role;

      (vi)   to be dealt with in a form of legal proceedings that reflects the vulnerability of children while fully respecting human rights and legal safeguards; and

   (h)   in addition, if that person is a person with a disability, in recognition of his or her particular vulnerability, to be held, wherever possible, in separate accommodation.

43.   Administrative justice

   Every person shall have the right to—

   (a)   lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and

   (b)   be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected.

44.   Limitations on rights

   (1) No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.

   (2) Laws prescribing restrictions or limitations shall not negate the essential content of the right or freedom in question, and shall be of general application.

   (3) Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law.

   (4) Wherever it is stated in this Constitution that a person has the right to the services of a legal practitioner or medical practitioner of his or her own choice, that right shall be without limitation, save where the State is obliged to provide such services of a legal practitioner or medical practitioner, in which case an Act of Parliament may prescribe that the choice of the legal practitioner or medical practitioner should be limited to those in Governmentservice or employment.

45.   Derogation and public emergency

   (1) No derogation from rights contained in this Chapter shall be permissible save to the extent provided for by this section and no such derogation shall be made unless there has been a declaration of a state of emergency within the meaning of this section.

   (2) There shall be no derogation with regard to—

   (a)   the right to life;

   (b)   the prohibition of torture and cruel, inhuman or degrading treatment or punishment;

   (c)   the prohibition of genocide;

   (d)   the prohibition of slavery, the slave trade and slave-like practices;

   (e)   the prohibition of imprisonment for failure to meet contractual obligations;

   (f)   the prohibition on retrospective criminalization and the retrospective imposition of greater penalties for criminal acts;

   (g)   the right to equality and recognition before the law;

   (h)   the right to freedom of conscience, belief, thought and religion and to academic freedom; or

   (i)   the right to habeas corpus.

   (3) The President may declare a state of emergency—

   (a)   only to the extent that it is provided for in this section;

   (b)   only with the approval of the Defence and Security Committee of the National Assembly;

   (c)   only in times of war, threat of war, civil war or widespread natural disaster;

   (d)   only with regard to the specific location where that emergency exists, and that any declaration of a state of emergency shall be publicly announced; and

   (e)   only after the state of emergency has been publicly announced.

   (4) Derogation from the rights contained in this Chapter, other than the rights listed in subsection (2), shall be permissible during a state of emergency within the meaning of this section and to the extent that—

   (a)   such derogation is consistent with the obligations of Malawi under international law; and

   (b)   in the case of—

      (i)   war or threat of war, it is strictly required to prevent the lives of defensive combatants and civilians as well as legitimate military objectives from being placed in direct jeopardy; or

      (ii)   a widespread natural disaster, it is strictly required for the protection and relief of those people and facilities whether in or outside the disaster area.

   (5) The declaration of a state of emergency and any action taken in consequence thereof shall be in force for a period of not more than twenty-one days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members.

   (6) The High Court shall be competent to hear applications challenging the validity of a declaration of a state of emergency, any extension thereof, and any action taken, including any regulation enacted, under such declaration.

   (7) Where a person is detained under a state of emergency such detention shall be subject to the following conditions—

   (a)   an adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible and in any case not later than fortyeight hours of detention;

   (b)   the name of every detainee and a reference to the measures in terms of which he or she is being detained shall be published in the Gazette within five days of his or her detention;

   (c)   when rights entrenched in section 19 (6) (a) or section 42 (2) (b) have been suspended—

      (i)   the detention of a person shall, as soon as it is reasonably possible but not later than ten days after his or her detention, be reviewed by a court, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order;

      (ii)   a detainee shall at any stage after the expiry of a period of five days after a review under subparagraph (i) be entitled to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order;

   (d)   the State shall for the purpose of a review referred to in paragraph (c) submit written reasons to justify the detention or further detention of the detainee to the court, and shall furnish the detainee with such reasons not later than two days before the review.

   (8) If a court finds the grounds for the detention of a person to be unjustified or illegal it shall order his or her release and that person shall not be detained again on the same grounds unless the State shows good cause to a court prior to such re-detention.

   (9) Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.

46.   Enforcement

   (1) Save in so far as it may be authorized to do so by this Constitution, the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of Government shall not take any action, which abolishes or abridges the rights and freedoms enshrined in this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.

   (2) Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled—

   (a)   to make application to a competent court to enforce or protect such a right or freedom; and

   (b)   to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.

   (3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated.

   (4) A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.

   (5) The law shall prescribe criminal penalties for violations of those non-derogable rights listed in section 44 (1).

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