CHAPTER 1:04
PUBLIC OFFICERS (DECLARATION OF ASSETS, LIABILITIES AND BUSINESS INTERESTS)

ARRANGEMENT OF SECTIONS

SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
OBJECTIVE AND GUIDING PRINCIPLES OF ETHICAL CONDUCT

   3.   Objective of the Act

   4.   Principles of ethical conduct

   5.   Duty to submit declarations under the Act

PART III
OFFICE OF THE DIRECTOR OF PUBLIC OFFICERS' DECLARATIONS

   6.   Establishment of the Office of the Director of Public Officers' Declarations

   7.   Appointment of the Director and the Deputy Director

   8.   Removal from office of the Director and the Deputy Director

   9.   Acting Director

   10.   Appointment of other officers and staff

   11.   Functions of the Director

   12.   Powers of the Director

   13.   Monitoring Committee to monitor functions and powers of the Director

PART IV
CONTENTS OF DECLARATIONS, PROCEDURE AND PUBLIC ACCESS TO DECLARATIONS

   14.   Submission of declarations

   15.   Information to be specified in declarations

   16.   Retention of declarations

   17.   Public access to declarations

PART V
GENERAL

   18.   Offences

   19.   Disqualification from public office and reference for investigation

   20.   Whistleblowers

   21.   Penalties for disclosing identity of whistleblowers

   22.   False information by whistleblowers

   23.   Expenditure in connexion with the function of the office of the Director

   24.   Regulations

   25.   Transitional provisions

      SCHEDULES

22 of 2013
G.N. 24/2014

An Act to make provision for the declaration of assets, liabilities and business interests by certain public officers and for connected matters

[1ST JULY, 2014]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Public Officers (Declaration of Assets, Liabilities and Business Interests) Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   "agent" means any person who acts for, or on behalf of, or in the name of, a public officer, and includes a trustee, an administrator or an executor;

   "assets" means holdings of value, whether tangible or intangible, movable or immovable, including cash, property, goods, savings, investments, equipment, as well as other quantities possibly having no market value, pre-paid expenses, or goodwill;

   "business interests" means participation with any individual in a commercial enterprise or venture, or participation in any association, institution, organization or entity, whether of a commercial nature or otherwise, regardless of whether a pecuniary benefit or other assets are derived from such participation;

   "close associate" means any person, whether related or unrelated by blood or marriage, who holds or will hold any financial interest, or any power, for or on behalf of a public officer;

   "declaration" means a declaration of assets, liabilities and business interests in accordance with this Act;

   "liabilities" means a present obligation of the public officer, his or her spouse or member of his or her immediate family arising from past events the settlement of which is expected to result in an outflow from the public officer, his or her spouse or member of his or her immediate family, of resources embodying tangible or intangible benefits;

   "member of immediate family", in relation to a public officer, includes the public officer's spouse, any biological or adoptive child who is below the age of eighteen or any biological or adoptive child whose means of support is wholly or partially from a public officer, irrespective of age;

   "Monitoring Committee" means the Monitoring Committee of Parliament established under section 213 (4) of the Constitution;

   "Public Appointments Committee" means the Public Appointments Committee of Parliament established under section 56 (7) of the Constitution;

   "public officer" means any person who is a member of, or an employee of, the Government, a statutory body or any other body appointed by the Government, whether his or her membership or his or her employment is temporary, whole or part-time, paid or unpaid.

PART II
OBJECTIVE AND GUIDING PRINCIPLES OF ETHICAL CONDUCT

3.   Objective of the Act

   The objective of the Act is to promote public confidence in the public service, including in the offices of public and elected officials.

4.   Principles of ethical conduct

   (1) The guiding principles of the Act are integrity, honesty, accountability, responsibility, fairness, transparency, rule of law, professionalism and impartiality of public officers.

   (2) In furtherance of the guiding principles of this Act, every public officer shall—

   (a)   not use his or her office for personal enrichment or to improperly enrich others;

   (b)   to the best of his or her ability, avoid being in a position in which his or her personal interests conflict with his or her public duties;

   (c)   avoid any activity that is inconsistent with his or her public functions;

   (d)   not misuse or misappropriate public property entrusted to his or her care;

   (e)   not be permitted to concurrently receive remuneration for the performance of his or her duties as a public officer and remuneration for the performance of private employment or of business or entrepreneurial activities, unless he or she makes a full disclosure of all outside employment, business interests or entrepreneurial activities:

   Provided that no actual or potential conflict exists between the public officer's official duties and his or her outside employment, business interest or entrepreneurial activity.

5.   Duty to submit declarations under the Act

   A public officer listed in the First Schedule to the Act (in this Act otherwise referred to as the "listed public officer") shall submit declarations in accordance with this Act.

PART III
OFFICE OF THE DIRECTOR OF PUBLIC OFFICERS' DECLARATIONS

6.   Establishment of office of the Director of Public Officers' Declarations

   (1) There is hereby established the Office of the Director of Public Officers' Declarations (in this Act otherwise referred to as the "Director") which shall be a public office.

   (2) The Director shall be responsible for the administration of this Act.

   (3) The Director shall perform his or her functions independent of any person or authority, but shall otherwise be accountable to Parliament.

7.   Appointment of the Director and Deputy Director

   (1) The Director shall be appointed by the Public Appointments Committee.

   (2) The Public Appointments Committee shall call for nominations from the public for appointment to the office of the Director by way of a public advertisement placed by the Clerk to the National Assembly, and the successful candidate shall be appointed in accordance with the requirements of this section.

   (3) No person shall qualify for appointment as the Director unless that person has a record of high integrity, and possesses suitable qualifications and training necessary for effective performance of the duties of that office.

   (4) The terms and conditions of service of the Director shall be determined by the Public Appointments Committee.

   (5) The Director shall, subject to section 8, hold office for a period of three years and shall be eligible for reappointment for one additional term of three years.

   (6) There shall be a Deputy Director of Public Officers' Declarations (in this Act otherwise referred to as the "Deputy Director") who shall be appointed by the Public Appointments Committee and who shall perform such functions and duties as may be assigned to him by the Director, from time to time.

   (7) The Public Appointments Committee shall call of nominations from the public for appointment to the office of a public advertisement place by the Clerk to the National Assembly, and the successful candidate shall be appointed in accordance with the requirements of this section.

   (8) No person shall qualify for appointment as Deputy Director unless that person has record of high integrity, and possesses suitable qualifications and training necessary for effective performance of that office.

   (9) The terms and conditions of service of the Deputy Director shall be determined by the Public Appointments Committee.

   (10) The Deputy Director shall—

   (a)   subject to section 8, hold office for a period of three years, and shall be eligible for reappointment for one additional term of three years; and

   (b)   qualify for appointment as Director.

8.   Removal from office of the Director and Deputy Director

   (1) A person holding the office of the Director or the Deputy Director may be removed from office by the Public Appointments Committee—

   (a)   where had that person not been the Director or the Deputy Director, that person would have been disqualified from being appointed;

   (b)   for gross misconduct; or

   (c)   for inability to perform the functions of his or her office.

   (2) The President may, where it is considered desirable in the public interest so to do, and with the confirmation by the Public Appointments Committee, suspend the Director or Deputy Director pending investigations to determine whether or not the Director or Deputy Director may be removed from office under subsection (1).

9.   Acting Director

   If the offices of Director and Deputy Director are vacant, or the Director and the Deputy Director are absent from duty or unable for any other reason to perform the functions of their office, the President shall appoint, subject to confirmation by the Public Appointments Committee, another duly qualified person to act as Director during such vacancy or temporary absence:

   Provided that where the period of such vacancy or temporary absence has exceeded twenty-one days, the President shall, within fourteen days thereafter, furnish to the Public Appointments Committee the reasons why the vacancy in both or either of the two offices cannot be substantively filled with immediate effect, and an estimate of the time within which the vacancy shall be filled, being not longer than three months from the expiry of the period of twenty-one days herein referred to.

10.   Appointment of other officers and staff

   In addition to the Director and the Deputy Director there shall be appointed in the public service, such other officers subordinate to the Director as may be required for the proper performance of the functions of the Director, but the appointment of individual officers under this section shall not require the confirmation of the Public Appointments Committee.

11.   Functions of the Director

   (1) The Director shall be responsible for the enforcement, regulation and monitoring of declarations, and other related matters in accordance with this Act.

   (2) Without limiting the generality of subsection (1), the functions of the Director shall be to—

   (a)   receive declarations from listed public officers;

   (b)   verify declarations submitted by listed public officers;

   (c)   recommend to the Minister the development of rules and regulations necessary for the proper implementation of this Act;

   (d)   ensure accessibility of this Act by the general public;

   (e)   generally advise public officers concerning their obligations under this Act;

   (f)   provide technical assistance to listed public officers on the correct method of filing declarations;

   (g)   annually publicize in the Gazette

      (i)   the names of listed public officers who have complied with this Act;

      (ii)   the names of listed public officers who have not complied with this Act; and

      (iii)   a summary of declarations filed by each listed public officer;

   (h)   provide, annually, an assessment report of compliance by public officers with the provisions of this Act to the Minister who shall lay the report before the National Assembly;

   (i)   enforce listed public officers' compliance with this Act by referring non-compliance with this Act to relevant employment authorities with recommendations for appropriate sanctions;

   (j)   upon verification of declarations, report any evidence or reasonable suspicion of criminal activity by a listed public officer to the Director of Public Prosecutions, the Police, or the Director of the Anti-Corruption Bureau, as the case may be; and

   (k)   report any elected public officer, Minister or any other listed public officer who, in the opinion of the Director, may properly be dealt with by the Monitoring Committee, to the Monitoring Committee, if such listed public officer fails to comply with the provisions of this Act.

12.   Powers of the Director

   For the performance of his functions under this Act, the Director may—

   (a)   institute an inquiry into alleged or suspected non-compliance with this Act;

   (b)   notwithstanding section 6 of the Taxation Act, order the production of any information, documents, or the giving of testimony, from any public officer, government agency, private company or any person, relating to the declarations filed by a listed public officer;

   (c)   require a listed public officer to amend, within thirty days, any declaration that is procedurally or substantively defective; and

   (d)   perform such other acts as are reasonably necessary or required for the exercise of his or her functions.

13.   Monitoring Committee to monitor functions and powers of the Director

   (1) The Monitoring Committee shall be responsible for monitoring the functions and powers of the Director.

   (2) In the exercise of its functions, the Monitoring Committee shall—

   (a)   receive annual declarations reports prepared by the Director;

   (b)   confirm that all listed public officers are in full compliance with the requirements of this Act; and

   (c)   take any appropriate action to enforce the compliance of this Act by listed public officers.

PART IV
CONTENT OF DECLARATIONS, PROCEDURE AND PUBLIC ACCESS TO DECLARATIONS

14.   Submission of declarations

   (1) Every listed public officer shall, no later than three months after assuming his or her duties as a listed public officer, submit his or her declaration to the Director.

   (2) A declaration specified in subsection (1) shall be in the form set out in the Second Schedule.

   (3) A listed public officer shall submit to the Director—

   (a)   an annual declaration update return within thirty days after the commencement of each fiscal year;

   (b)   a declaration three months before expiry of period of service, unless a declaration specified in subsection (1), and (3) (a) was filed within three months prior to the termination date.

   (4) The declarations specified in subsection (3) shall be in the form set out in the Third Schedule.

   (5) Where a contract of service is terminated without notice by either party, the Director may order that a declaration be submitted within thirty days from the date of termination, unless the declaration specified in subsections (1), and (3) (a) was filed within three months prior to the termination date.

   (6) A listed public officer shall submit his or her signed declaration forms directly to the Director and retain a copy for his or her personal records.

   (7) A listed public officer who is in the employment of the office of the Director shall, in accordance with the Act, submit his or her declarations to the office of the Speaker of Parliament.

15.   Information to be specified in declarations

   (1) In the declaration, a listed public officer shall specify—

   (a)   his or her name, surname, and place of residence, and details of members of his or her immediate family;

   (b)   his or her office or position as a public officer;

   (c)   the date of election, appointment or selection to the public office;

   (d)   information on previous public offices held before submission of the declaration;

   (e)   assets, including information on—

      (i)   any asset in which he or she or any member of his or her immediate family has a full or part ownership interest, and the description of the asset, its location, the date of acquisition, the amount paid for the asset, the current valuation of the asset, and where possible, the contact details of the person or entity where the asset was acquired;

      (ii)   any asset which he or she or any member of his or her immediate family has sold, relinquished or otherwise transferred within twenty-four months prior to the date of filing the declaration, and the description of the asset, the date the asset was sold, relinquished or transferred, the value of the asset at the time of sale, relinquishment or transfer, and the consideration received in exchange;

      (iii)   any other asset which he or she or any member of his or her immediate family has financed, or owns in any other name than his or her own name and the description of the asset, its location, the date of acquisition, the amount paid for the asset, the current valuation of the asset, and the name or names in which the asset is held or owned;

      (iv)   income which he or she or any member of his or her immediate family received within the past twelve months, and the source, amount, date and explanation of such income;

      (v)   any bank account, wherever located, held in his or her name or held jointly with any member of his or her immediate family, close associate, agent or business partner, and the name of the account holder, the name of the banking institution, the type of account, the account number, and the balance of the account; and

      (vi)   shares in any company, any government stocks, bonds, treasury bills, any life insurance policy or related schemes held in his or her name or held jointly with any member of his or her immediate family, agent or business partner, and a description of the location and value of such shares, stocks, bonds, treasury bills, life insurance policy or related assets;

   (f)   liabilities and debts which he or she owes or which any member of his or her immediate family owes, and the name and address of the individual or entity to which the debt or the liability is owed, the amount and nature of the debt or liability, and the date and circumstances under which it was incurred;

   (g)   business interests, including information on any commercial or entrepreneurial activity in which he or she or any member of his or her immediate family has engaged in the last twenty-four months, and the nature, location and dates of the commercial or entrepreneurial activity; and

   (h)   the date on which the declaration is submitted and his or her signature.

16.   Retention of declarations

   (1) The Director shall keep declarations submitted under this Act for a period of seven years after the person ceases to be a listed public officer.

   (2) Notwithstanding subsection (1), the Director may, where there is an investigation, keep the declaration which is the subject matter of the investigation for a longer period than seven years.

17.   Public access to declarations

   (1)   The declarations made under this Act shall be treated as public information and may be accessible to members of the public upon application to the Director in the form set out in the Fourth Schedule.

   (2) The Director may, if there are reasonable grounds taking into account the objectives of this Act, refuse access to declarations.

   (3) Where the Director refuses access to declarations, he shall, within fourteen days from receipt of the application, notify the requesting party in writing stating grounds for his refusal.

   (4) The application to access declarations under this section shall be confidential unless the applicant—

   (a)   upon accessing the declarations, misuses or otherwise abuses the information; or

   (b)   upon being refused access to the declarations, applies for a judicial review of the decision of the Director.

PART V
GENERAL

18.   Offences

   (1) A listed public officer who, without reasonable cause, fails to submit the required declaration within the time determined by this Act shall, subject to the Constitution and any other written law, be liable to be dismissed from the public office.

   (2) A listed public officer who files a declaration which the public officer knows or believes to be inaccurate or misleading, or does not believe to be true, commits an offence and shall be liable on conviction to a fine of K500,000 and imprisonment for two years and shall, subject to the Constitution and any other written law, be dismissed from the public office.

   (3) The Director may, notwithstanding any penalty imposed under this section, order the listed public officer to submit the required declaration.

   (4) Any person who, upon accessing declarations submitted by a listed public officer under section 17, misuses or otherwise abuses the information commits an offence and shall be liable on conviction to a fine of K500,000 and imprisonment for two years, without prejudice to any other legal remedy available to the injured person.

19.   Disqualification from public office and reference for investigation

   (1) In addition to the penalties prescribed under section 18, every listed public officer, who without reasonable cause, fails to submit a declaration or who knowingly submits an inaccurate or misleading declaration, shall—

   (a)   in the case of failure to submit a declaration, be disqualified from holding a public office for a period of three years;

   (b)   in the case of submitting an inaccurate or misleading declaration and upon conviction, be disqualified from holding any public office for a period of seven years; and

   (c)   be referred to the Director of Public Prosecutions, the Police or the Director of the Anti-Corruption Bureau for further investigation.

   (2) If, after further investigation and prosecution, a listed public officer who is disqualified from holding a public office under subsection (1) (a), is convicted of an offence, the three-year disqualification period shall be substituted for a seven-year disqualification period.

20.   Whistleblowers

   (1) Any person who reasonably believes or suspects that a listed public officer has submitted a false or inaccurate declaration or has otherwise not complied with this Act, (in this part otherwise referred to as a "whistleblower") may report the violation to the Director.

   (2) No information relating to a whistleblower shall be admitted in evidence in any administrative, civil or criminal proceeding, and no person shall be obliged or permitted to disclose the name or address of such whistleblower, or state any matter which might lead to his discovery.

   (3) If any documents, records or files which are in evidence or liable to inspection in any administrative, civil or criminal proceeding contain any entry in which the whistleblower is named or described or which might lead to his or her discovery, the Director or the court before which the proceeding is heard shall cause all such passages to be deleted so far as is necessary to protect the whistleblower from discovery.

   (4) If the Director or any court, after full inquiry into the case, determines that the whistleblower provided information to the Director which he or she knew or believed to be false, or did not believe to be true, the Director or court may permit an inquiry and may require full disclosure concerning the whistleblower.

   (5) Any person who, knowing that a whistleblower has informed the Director of an alleged or suspected violation of this Act or other offence connected therewith, does any action to punish or victimize the whistleblower in any way commits an offence and shall be liable on conviction to a fine of K500,000 and to imprisonment for two years.

21.   Penalties for disclosing identity of whistleblowers

   Any person who discloses the identity of a whistleblower commits an offence and shall be liable on conviction to a fine of K500,000 and to imprisonment for two years.

22.   False information by whistleblowers

   Any whistleblower who provides the Director with information which he or she knows or believes to be false, or does not believe to be true, commits an offence and shall be liable on conviction to a fine of K500,000 and to imprisonment for two years.

23.   Expenditure in connexion with the function of the office of the Director

   The expenditure in connexion with the office of the Director and the exercise of the powers of the Director, and the performance of the duties and functions of the Director, shall be paid from moneys appropriated for that purpose by Parliament.

24.   Regulations

   The Minister may, on the recommendation of the Director, and by notice in the Gazette, make regulations for the better carrying out of the provisions of this Act.

25.   Transitional provisions

   At the commencement of this Act, any person serving as a listed public officer shall be required to submit a declaration in the prescribed form within the time set by the Director.

FIRST SCHEDULE

PUBLIC OFFICERS REQUIRED TO MAKE DECLARATIONS

PART A
POLITICAL AND ELECTED OFFICIALS

   1. President

   2. Vice President

   3. Speaker and Deputy Speakers of the National Assembly

   4. Cabinet Minister

   5. Members of Parliament

   6. Leader and Treasurer of a political party represented in Parliament

   7. Mayor and Councillors of City Councils

   8. Councillors of District and Town Councils

PART B
SENIOR PUBLIC OFFICERS

   9. Chief Justice

   10. Attorney General

   11. Secretary to the Cabinet

   12. Deputy Secretary to the Cabinet

   13. Judges of the High Court of Malawi and Justices of Appeal of the Supreme Court of Appeal

   14. Solicitor General

   15. Law Commissioner

   16. Ombudsman

   17. High Court and Supreme Court of Appeal Registrar

   18. Director of Public Prosecutions

   19. Director and Deputy Director of the Anti-Corruption Bureau

   20. Director of the Office of Public Officers' Declarations

   21. Inspector General of Police and senior officers of the rank of Superintendent and above

   22. Chancellor and Vice Chancellor of a public University

   23. Registrar of a public University and Finance Officers

   24. Commissioner and Deputy Commissioner of Prisons and officers in charge of prison stations

   25. Chief Immigration Officer

   26. Auditor General

   27. Director of Public Procurement and Deputy Director of Public Procurement

   28. Commissioner General and Deputy Commissioner General of the Malawi Revenue Authority

   29. District Commissioners and Assistant District Commissioners

   30. Army Commander, Deputy Army Commander and senior officer of the rank of Major and above

   31. Administrator General

   32. Registrar General

   33. Principal Secretaries and their Deputies

   34. Chairperson, Board Members, Chief Executive and Deputy Chief Executive of a public body, parastatal, constitutional bodies and all other statutory bodies set up by an Act of Parliament

   35. Governor, Deputy Governor, Director and Manager of the Reserve Bank of Malawi

   36. Chief Executive, Deputy Chief Executive of City, District and Town Councils

   37. Senior public officers of the grade equivalent to Director and Heads of Department

PART C
OTHER OFFICERS

   38. Judicial officers

   39. Procurement officers

   40. Officers in the Road Traffic Department

   41. Officers of the Malawi Revenue Authority

   42. Immigration officers

   43. State Advocates, Legal Aid Advocates and all public prosecutors

   44. Police Traffic Officers and investigative officers

   45. Advisor to the President and Vice President

   46. Advisor to a Cabinet Minister

   47. Accounting personnel

   48. Officers of the Anti-Corruption Bureau

   49. Officers of the Office of Director of Public Procurement

SECOND SCHEDULE

DECLARATION OF ASSETS, LIABILITIES AND BUSINESS INTERESTS INITIAL DECLARATION FORM

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