CHAPTER 9:02
PRISONS

ARRANGEMENT OF SECTIONS

   SECTION

PRELIMINARY

   1.   Short title

   2.   Interpretation

PART I
ESTABLISHMENT OF PRISONS

   3.   Establishment of prisons

   4.   Temporary prisons

PART II
CONSTITUTION AND ADMINISTRATION

   5.   Establishment of service

   6.   Application of Act to serving prison officers

   7.   Commissioner of Prisons and prison officers

   8.   Officers

   9.   Appointment of prison officers

   10.   Liberty to resign

   11.   Payments due to prison officers and other persons employed in prisons leaving the prison service may be set off

   12.   Minister may appoint committee of inquiry

PART III
POWERS AND DUTIES OF PRISON OFFICERS

   13.   General powers and duties of Commissioner

   14.   Officer in charge of a prison to supervise and control prison

   15.   Powers and duties of prison officers

   16.   Prison officers' always liable for duty

   17.   Prison officers and prohibited activities

   18.   Punishment by subordinate officers

   19.   Use of weapons by prison officers

   20.   Prison officers' power of arrest

   21.   Prison officers' visits to cells

   22.   Power to take photographs and fingerprints of prisoners

   23.   Immunity for act done under authority of warrant

   24.   Proof of signature not required

PART IV
APPOINTMENT AND DUTIES OF MEDICAL OFFICERS

   25.   Medical officers

   26.   Duties of medical officers

   27.   Medical inspection

   28.   Observation of prisoners charged with a capital offence

   29.   Examination of prisoners in solitary confinement or in hospital

   30.   Officer in charge empowered to order prisoner to be examined

   31.   Death of a prisoner

   32.   Notification of death of prisoner

PART V
VISITING JUSTICES, OFFICIAL VISITORS, MINISTERS OF RELIGION AND PRISONERS' AID SOCIETIES

   33.   Judges may visit prisons

   34.   Ministers to be visiting justices

   35.   Magistrates to be visiting justices in own areas

   36.   Powers of visiting justices

   37.   Visiting justice to record visit in prescribed book

   38.   Appointment of official visitors

   39.   Duties of official visitors

   40.   Official visitor to record visit in prescribed book

   41.   Ministers of religion may visit prison

   42.   Visits of probation officers and representatives of prisoners' aid society

PART VI
DISCIPLINE OF PRISON OFFICERS

   43.   Offences against discipline by prison officers

   44.   Prison officer to have power to arrest

   45.   Confinement of arrested prison officer

   46.   Power to try junior prison officers

   47.   Power to try subordinate prison officers

   48.   Procedure after award of punishment

   49.   Stoppages of pay

   50.   Power to summon witnesses

   51.   Offence against discipline may be tried by a magistrate

   52.   Interdiction

   53.   Dismissal upon fine or imprisonment

   54.   Pay not to accrue during absence without leave or imprisonment

PART VII
DESERTION OR INCITING

   55.   Desertion

   56.   Deserter may be apprehended by prison or police officer

   57.   Penalty for inciting prison officer to desert

   58.   Penalty for mutiny or sedition

PART VIII
ADMISSION AND CONFINEMENT OF PRISONERS

   59.   Admission of prisoners

   60.   Admission of infant child with female prisoner

   61.   Particulars of prisoner to be recorded

   62.   Search of prisoners

   63.   Money and other effects of prisoners to be kept in custody of the officer in charge

PART IX
SEGREGATION AND CLASSIFICATION OF PRISONERS

   64.   Separation of prisoners

PART X
CUSTODY AND REMOVAL OF PRISONERS

   65.   Prisoners in lawful custody of officer in charge

   66.   Production of prisoners in court

   67.   Prisoners under police escort

   68.   Statements to police officers

   69.   Prisoners and criminal investigations

   70.   Removal of prisoners from one prison to another

   71.   Certain prisoners may be restrained

   72.   Mentally disordered or defective prisoners

   73.   Removal of sick prisoners to hospital

   74.   Serving sentence while in hospital

PART XI
LABOUR OF PRISONERS

   75.   Employment of convicted prisoners

   76.   Employment of unconvicted prisoners

PART XII
MAINTENANCE

   77.   Maintenance of unconvicted prisoners from private sources

   78.   Food, etc., not to be transferred to other prisoners

   79.   Food, clothing and bedding for unconvicted prisoners

PART XIII
PROHIBITED ARTICLES AND AREAS

   80.   Power to search

   81.   Penalty for introduction or removal of prohibited articles into and from prison and for unauthorized communication with prisoners

   82.   Power of arrest

   83.   Unauthorized communications

   84.   Offences in respect of prisons and prisoners

   85.   Removal of certain offenders

   86.   Unlawful possession of articles supplied to prison officers

   87.   Offences in connexion with uniforms and decorations

   88.   Notice to be displayed stating offences in respect of prisons and prisoners

PART XIV
DISCIPLINE OF PRISONERS

   89.   Prison offences

   90.   Trial of prison offences

   91.   Punishments for prison offences heard and determined before a magistrate's court

   92.   Punishments for prison offences heard and determined within a prison

   93.   Special provisions relating to the punishments of solitary confinement with penal diet and of reduced diet

PART XV
ESCAPING

   94.   Assisting prisoner to escape, etc.

   95.   Harbouring prisoners

PART XVI
CORPORAL PUNISHMENT

   96.   Prison offences for which corporal punishment may be awarded

   97.   Certain prisoners not liable to corporal punishment

   98.   Number of strokes to be specified

   99.   Corporal punishment; confirmation

   100.   Type of cane and method of infliction

   101.   Medical officer and officer in charge to be present while corporal punishment is being inflicted

   102.   Sentence of corporal punishment may be stayed

   103.   Corporal punishment not to be inflicted by instalments

PART XVII
PRISONERS UNDER SENTENCE OF DEATH

   104.   Confinement of condemned prisoner

   105.   Persons who may have access to condemned prisoner

   106.   Attendance at execution by officials

PART XVIII
REMISSION OF SENTENCE

   107.   Remission

   108.   Remission on special grounds

PART XIX
TRANSITIONAL PROVISIONS RELATING TO A PRISONER IN RELATION TO WHOM A LICENCE TO BE AT LARGE WAS IN FORCE AT THE DATE OF COMMENCEMENT OF THE PRISONS AMENDMENT ACT, 1962

   109.   Transitional provisions

PART XX
RELEASE ON LICENCE OF PRISONERS UNDERGOING IMPRISONMENT FOR LIFE

   110.   Release on licence of prisoners undergoing imprisonment for life

PART XXI
REPORT ON LONG-TERM PRISONERS

   111.   Report on long-term prisoners

PART XXII
DISCHARGE OF PRISONERS

   112.   Officer in charge to be responsible for discharge of prisoners

   113.   Day of discharge of prisoners

   114.   Travelling expenses of prisoners on discharge

PART XXIII
MISCELLANEOUS

   115.   List of prisoners detained to be delivered to High Court

   116.   Rewards for apprehension of escaped prisoners

   117.   Commutation of death sentence to sentence of imprisonment

   118.   Detention of prisoners from other countries

   119.   Removal of prisoners outside Malawi

   120.   Minister may grant permission to be absent from prison

PART XXIV
REGULATIONS AND TRANSITIONAL

   121.   Power to make regulations

   122.   Transitional

       Schedule

9 of 1955 (F)
8 of 1957 (F)
42 of 1959 (F)
24 of 1962 (F)
37 of 1967
30 of 1991
33 of 1993
G.N. 213/1960F
219/1963

An Act to provide for the establishment of Prisons within Malawi, for a Prison Service, for the discipline of Prison Officers, for the management and control of Prisons and Prisoners lodged therein, and for matters incidental thereto

[23RD APRIL 1956]

PRELIMINARY

1.   Short title

   This Act may be cited as the Prisons Act.

2.   Interpretation

   In this Act, unless inconsistent with the context—

   “convicted prisoner” means any prisoner under sentence of a court or court-martial;

   “junior officers” means a prison officer of one of the ranks of junior officers set out in the Schedule;

   “mechanical restraint” means restraint by the use of handcuffs, leg irons, straight jacket, or any other form of restraint approved by the Minister;

   “medical officer” means a medical officer appointed or nominated under section 25;

   “officer in charge” means the person appointed to be in charge of a prison under section 9;

   “official visitor” means a person appointed as such under section 38;

   “penal diet” means a punishment diet prescribed as a penal diet;

   “prison” means any building or place declared to be a prison and includes a temporary prison established under section 4;

   “prison officer” means any officer of the prison service and includes any officer seconded to such service;

   “prisoner” means any person, whether convicted or not, under detention in any prison;

   “prohibited article” means any article which is not issued to any prisoner by authority of the officer in charge, with the approval of the Commissioner, or in accordance with this Act;

   “reduced diet” means a punishment diet prescribed as a reduced diet;

   “senior officer” means a prison officer of one of the ranks of senior officers set out in the Schedule;

   “subordinate officer” means a prison officer of one of the ranks of subordinate officers set out in the Schedule and includes any person temporarily employed under section 73 (5);

   “the service” means the prison service established under this Act;

   “unconvicted prisoner” means any person, not being a convicted prisoner, duly committed to custody under a writ, warrant, or order of any court, or any order of detention issued by any person authorized thereto by any Malawi law, or by order of a court-martial;

   “visiting justice” means a visiting justice appointed under sections 34 and 35;

   “weapon” means any firearm, baton, tear smoke, or such other instrument as may be prescribed;

   “young prisoner” means a prisoner under the apparent age of 19 years and may, at the discretion of an officer in charge, include a prisoner whose apparent age does not exceed 20 years.

PART I
ESTABLISHMENT OF PRISONS

3.   Establishment of prisons

   The Minister may declare any building or place in Malawi to be a prison under this Act, and may declare that any such prison shall cease to be a prison.

4.   Temporary prisons

   Such provision shall be made as the Commissioner may direct for the shelter and safe custody in temporary prisons of such number of prisoners as the Commissioner may determine, and every such temporary prison shall be deemed to be a prison for the purpose of this Act.

PART II
CONSTITUTION AND ADMINISTRATION

5.   Establishment of service

   There shall be established in Malawi a prison service.

6.   Application of Act to serving prison officers

   All the provisions of this Act shall extend to all persons who, immediately before the date of commencement of this section, were serving as members of any prison service or department established under the Prisons Ordinance, 1945 (now repealed) as if such persons had been appointed under this Act, and service under any such legislation, for the purposes of this Act, shall be deemed to be service under this Act.

7.   Commissioner of prisons and prison officers

   There shall be a Commissioner of Prisons, hereinafter referred to as the Commissioner, who shall, subject to any general or special directions of the Minister, be responsible for the administration of this Act, and such prison officers as may be necessary for the administration of the prison service.

8.   Officers

   The service shall consist of the ranks set out in the Schedule and that Schedule may be varied by the Minister by notice published in the Gazette.

9.   Appointment of prison officers

   (1) The Commissioner shall appoint prison officers to be officers in-charge.

   (2) In any place where there is a prison but no prison officer has been appointed as officer in-charge thereof, such prison shall be in the charge of such person as the Minister may appoint and the person so appointed shall, in matters relating to the prison and prisoners, be subject to the orders and directions of the Commissioner and shall, subject to any express limitation which may have been imposed on him by the Commissioner, be deemed to be the officer in-charge of the prison and shall have all the powers conferred by this Act upon an officer in-charge.

10.   Liberty to resign

   (1) Unless expressly permitted to do so by the Commissioner, no prison officer shall be at liberty to resign from the service except as may be provided by regulations.

   (2) Any member of the service whose period of service expires during a state of war, insurrection, disturbance of the public peace, or other emergency or apprehended emergency, may be retained and his services prolonged for such period as the Minister may direct.

   (3) If any prison officer withdraws himself from his official duties in contravention of this section, he shall be liable to a fine of K100.00 and to imprisonment for three months.

11.   Payments due to prison officers and other persons employed in prisons leaving the prison service may be set off

   A sum due to a prison officer or other person employed in prisons or to his estate by way of salary, refund of pension contributions, pension or any other benefit whatsoever may be set off against a sum payable to the Government by the prison officer or other person employed in prisons on or at the time of his retirement, resignation, loss of office, death, discharge or other termination of service, as the case may be.

12.   Minister may appoint committee of inquiry

   The Minister may, whenever he deems it necessary or desirable, appoint a committee of two or more persons of whom—

   (a)   one shall be the Commissioner; and

   (b)   the other or others shall be an officer or officers of the Public Service,to enquire into and report to him on the conduct, management or administration of any prison or any matter connected therewith or incidental thereto.

PART III
POWERS AND DUTIES OF PRISON OFFICERS

13.   General powers and duties of Commissioner

    The Commissioner shall, subject to any orders or directions of the Minister, have the administrative command, superintendence, control, and direction of prisons and prison officers, and, for the exercise of these powers, may issue standing orders relating thereto. Notwithstanding the General Interpretation Act, standing orders issued in terms of this section need not be published in the Gazette.

14.   Officer in charge of a prison to supervise and control prison

   Every officer in-charge shall supervise and control all matters in connexion with the prison to which he is appointed and shall be responsible to the Commissioner for the conduct and treatment of prison officers and prisoners under his control and for the due observance by prison officers and prisoners of this Act.

15.   Powers and duties of prison officers

   Every prison officer shall exercise such powers and perform such duties as may be assigned to him in accordance with this Act and shall obey all lawful directions in respect of the execution of his office which he may receive from any officer senior to him in the service.

16.   Prison officers always available for duty

   Every prison officer shall be deemed to be available for duty at all times and may at any time be detailed for duty in any part of Malawi.

17.   Prison officers and prohibited activities

   (1) No prison officer shall be concerned in any employment other than the duties assigned to him in accordance with this Act.

   (2) No prison officer shall accept any bribe, fee, gratuity, or reward from, or, without the permission of the Commissioner, have any business dealings with, prisoners, visitors to prisoners, persons he knows to be ex-prisoners, or friends of prisoners or ex-prisoners.

   (3) Except with the written consent of the Minister and in accordance with such directions as the Minister may give, no prison officer shall commit any act which is prescribed as being an act constituting active participation in politics.

18.   Punishment by subordinate officers

   No subordinate officer shall punish a prisoner unless lawfully ordered so to do by the Commissioner or by an officer in charge.

19.   Use of weapons by prison officers

   (1) Subject to this section, a prison officer may use a weapon against—

   (a)   a prisoner who is—

      (i)   escaping or attempting to escape; or

      (ii)   engaged in a combined outbreak or in an attempt to force, break open or scale the outside door, gate, fence or enclosure wall of the prison; or

      (iii)   using violence to him or another prison officer or other person; and

   (b)   a person who—

      (i)   whilst assisting a prisoner to escape, is using violence to him or another prison officer or other person; or

      (ii)   is engaged in a combined break-in or in an attempt to force, break open or scale the outside door, gate, fence or enclosure wall of the prison or an inside door, gate, fence or wall of the prison; or

      (iii)   whilst so engaged, is using violence to him or another prison officer or other person.

   (2) Resort shall not be had to the use of a weapon—

   (a)   as in subsection (1) (a) (i) is authorized, unless—

      (i)   the prison officer has reasonable grounds to believe that he cannot otherwise prevent the escape; and

      (ii)   the prison officer gives a warning to the prisoner that he is about to use the weapon against him; and

      (iii)   the warning given by the prison officer is unheeded;

   (b)   as in subsection (1) (a) (iii), (1) (b) (i) and (1) (b) (iii) is authorized unless the prison officer has reasonable grounds to believe that he or the other prison officer or other person, as the case may be, is in danger of suffering grievous bodily harm.

   (3) No prison officer shall in the presence of a prison officer senior to himself make use of a weapon as in subsection (1) is authorized, except on the orders of the senior prison officer.

   (4) The use of weapons in pursuance of this section shall be, as far as possible, to disable and not to kill.

20.   Prison officers' power of arrest

   For the purpose of apprehending any person who may have escaped from lawful custody, every prison officer shall have the power to arrest such person and to convey him to a prison.

21.   Prison officers' visits to cells

   (1) No prison officer shall, except in the case of sickness or emergency, enter a prison cell or ward at night unless accompanied by another prison officer.

   (2) No male prison officer shall enter a cell in which female prisoners are confined, unless accompanied by a female prison officer.

22.   Power to take photographs and fingerprints of prisoners

   An officer in charge may cause statistics as to height, weight, and measurements, photographs, fingerprints, handprints, and footprints of any prisoner to be taken by any person whom he may designate for such purpose, and shall make such records as the Commissioner may determine.

23.   Immunity for act done under authority of warrant

   Where the defence to any suit instituted against a prison officer is that the act complained of was done in obedience to a warrant purporting to be issued by a judge or a magistrate, the court shall, upon production of the warrant containing the signature of the judge or the magistrate, and upon proof that the act complained of was done in obedience to such warrant, enter judgment in favour of such prison officer.

24.   Proof of signature not required

   No proof of the signature of such judge or magistrate as is mentioned in section 23 shall be required unless the court has reason to doubt the genuineness thereof, and, where such signature is proved not to be genuine, judgment shall nevertheless be given in favour of such prison officer, if it be proved that, at the time the act complained of was committed, he believed on reasonable grounds that such signature was genuine.

PART IV
APPOINTMENT AND DUTIES OF MEDICAL OFFICERS

25.   Medical officers

   (1) The Minister may appoint as medical officer of a prison any medical practitioner who is registered as such in accordance with the law and where" no such medical practitioner is available, may also appoint as medical officer of a prison any person who is licensed in terms of section 15 of the Medical Practitioners and Dentists Registration Act.

   (2) In default of any appointment in terms of subsection (1), a Government medical officer resident at the place where such prison is situated and nominated for such duty by the Secretary for Health shall be a medical officer for such prison.

26.   Duties of medical officers

   Subject to section 14, the medical officer shall have the general care of the health of prisoners and shall visit the prison daily where practicable or when called upon by the officer in charge. He shall report to the officer in charge any circumstances connected with the prison or the treatment of prisoners which at any time appear to him to require consideration on medical or health grounds.

27.   Medical inspection

   (1) The medical officer shall, where practicable, ensure that every prisoner is medically examined on admission to and before discharge from a prison, and shall perform such other duties as may be prescribed, and shall ensure that a record is kept of the state of health of every prisoner.

   (2) Until he has been examined by the medical officer, every prisoner on admission shall, so far as possible, be kept apart from other prisoners.

28.   Observation of prisoners charged with a capital offence

   The medical officer shall observe the mental condition of all prisoners under sentence of death or charged with a capital offence and, for this purpose, shall personally examine all such prisoners on every day on which he visits the prison, and shall furnish reports on such prisoners to the officer in charge in such form and at such times as may be prescribed.

29.   Examination of prisoners in solitary confinement or in hospital

   The medical officer shall ensure that every prisoner under sentence of death, or charged with a capital offence, or in solitary confinement, or in hospital, is medically examined every day on which the medical officer visits the prison.

30.   Officer in charge empowered to order prisoner to be examined

   Every officer in charge may order any prisoner to submit himself to medical examination as often as such officer thinks necessary.

31.   Death of a prisoner

   The medical officer shall, on the death of any prisoner otherwise than by lawful execution, record in a register to be kept for such purpose the following particulars, so far as they can be ascertained—

   (a)   the day on which the deceased was sentenced;

   (b)   the day on which he was admitted to prison;

   (c)   the day on which he first complained of illness, or was observed to be ill;

   (d)   the labour, if any, on which he was engaged on that day;

   (e)   the scale of his diet on that day;Death of a prisoner

   (f)   the day on which he was admitted to hospital;

   (g)   the day on which the medical officer or his subordinate was first informed of the illness;

   (h)   the nature of the disease;

   (i)   when the deceased was last seen before death by the medical officer or his subordinate;

   (j)   when the prisoner died and, in cases where a postmortem examination is made, an account of the appearance after death, together with any special remarks that may appear to the medical officer to be required; and

   (k)   his opinion as to the cause of death.

32.   Notification of death of prisoner

   Upon the death of a prisoner, the officer in charge shall at once notify a magistrate or coroner and the medical officer of the prison and shall arrange for compliance with the law relating to inquests.

PART V
VISITING JUSTICES, OFFICIAL VISITORS, MINISTERS OF RELIGION AND PRISONERS' AID SOCIETIES

33.   Judges may visit prisons

   Judges of the High Court may visit and inspect any prison at any time and, while so doing, may inquire into any complaint or request made by a prisoner.

34.   Ministers to be visiting justices

   Ministers of Malawi Government shall be visiting justices of all prisons in Malawi.

35.   Magistrates to be visiting justices in own areas Powers of visiting justices

   Magistrates shall be visiting justices of the prisons situated in the area in which they normally exercise jurisdiction.

36.   Powers of visiting justices

   (1) Any visiting justice may at any time visit a prison in respect of which he is a visiting justice, and may—

   (a)   call for all books, papers, and records relating to the management and discipline of the prison;

   (b)   visit every part of the prison and see every prisoner in confinement;

   (c)   inspect and test the quality and quantity of prisoners' food;

   (d)   ascertain, so far as possible, that the standing orders and regulations are observed;

   (e)   inquire into any complaint or request made by a prisoner.

   (2) A visiting justice who is a magistrate—

   (a)   may, if requested by the Commissioner or the officer in charge, hear and determine a charge under section 90 (1) (b); and

   (b)   for the exercise of such powers, may summon witnesses and administer oaths.

37.   Visiting justice to record visit in prescribed book

   On completion of each visit, a visiting justice shall enter in a book to be kept for such purpose such remarks, suggestions, or recommendations for the information of the Commissioner as he may deem fit

38.   Appointment of official visitors

   The Minister may appoint official visitors to any prison.

39.   Duties of official visitors

   An official visitor shall—

   (a)   at least once in every two months visit the prison to which he is appointed between such hours as may be prescribed;

   (b)   visit all parts of the prison and see every prisoner in confinement, save that female official visitors may visit only those parts of each prison set aside for the detention of female prisoners;

   (c)   inspect and test the quality and quantity of prisoners' food;

   (d)   ascertain, so far as possible, that the standing orders and regulations are observed; and

   (e)   inquire into any complaint or request made by a prisoner.

40.   Official visitors to record visit in prescribed book

   On completion of each visit, an official visitor shall enter in a book to be kept for such purpose such remarks, suggestions, or recommendations for the information of the Commissioner as he may deem fit.

41.   Ministers of religion may visit prison

   Ministers of religion, or other accredited representatives of any religious body recognized by the Minister whose visits are approved by the Commissioner, may at such hours and in such places as may be prescribed or as the officer in charge may permit—

   (a)   be admitted to the prison to visit prisoners who may be desirous of their services; and

   (b)   be permitted to hold religious services.

42.   Visits of probation officers and representatives of prisoners' aid society

   A probation officer appointed as such under any law, or a representative of a prisoners' aid society who has obtained the written permission of the Commissioner, may be admitted to any prison at times to be arranged by the officer in charge.

PART VI
DISCIPLINE OF PRISON OFFICERS

43.   Offences against discipline by prison officers

   (1) Any prison officer, other than the Commissioner who—

      (i)   uses traitorous or disloyal words regarding the President;

      (ii)   is disrespectful in word, act, or demeanour to an officer senior to him in the service;

      (iii)   disobeys any lawful order including any standing order issued by the Commissioner in terms of section 13;

      (iv)   contravenes or fails or neglects to comply with any provision of regulations with which it is his duty to comply;

      (v)   renders himself unfit for duty through drink or by the use of drugs;

      (vi)   habitually uses to excess intoxicating beverages or habit-forming drugs;

      (vii)   absents himself without leave or overstays his leave;

      (viii)   sleeps at his post, or leaves it before being lawfully relieved, except in fresh pursuit of any offender whom it is his duty to apprehend;

      (ix)   being under arrest or confinement, leaves or escapes from his arrest or confinement before he is set at liberty by proper authority;

      (x)   neglects or refuses to assist in the apprehension of any prison officer or prisoner whom it is his duty to arrest;

      (xi)   by his neglect or default—

         (A)   allows; or

         (B)   contributes to,

the escape of any prisoner;

      (xii)   offers or uses unwarranted personal violence to any person in his custody;

      (xiii)   shows cowardice in the course of his duty;

      (xiv)   uses any weapon without just cause or order;

      (xv)   without cause, fails to appear or appears late at any parade or duty appointed by an officer senior to him in the service;

      (xvi)   pawns, sells, loses by neglect, makes away with, wilfully spoils or fails to report any damage to any arms, ammunition, accoutrements, clothing, any medal or decoration granted to him for service or good conduct, or any other public property;

      (xvii)   steals or destroys any property belonging or issued to a prison or prisoner;

      (xviii)   is slovenly, inattentive, uncivil, or quarrelsome;

      (xix)   without due authority, discloses or conveys any information concerning any investigation or matter relating to the service;

      (xx)   malingers or feigns or wilfully produces any disease or infirmity or fails to report any disease or accident;

      (xxi)   is guilty of misconduct or disobeys, whether in hospital or otherwise, any orders, by means of which misconduct or disobedience he produces or aggravates any disease or infirmity or delays its cure;

      (xxii)   incurs debt without any reasonable prospect, or intention, of paying the same, or, having incurred any debt, makes no reasonable effort to pay the same;

      (xxiii)   without proper authority, demands from any person any article, carriage, or porterage;

      (xxiv)   resists an escort whose duty it is to apprehend him or to have him in charge;

      (xxv)   breaks out of, or leaves without lawful excuse, warders' lines, camp, or quarters;

      (xxvi)   makes or signs any false report or statement in any official record or document, knowing or having reasonable ground to believe that the same is false;

      (xxvii)   refuses or, by culpable neglect, omits to make or send a report or return which it is his duty to make or send;

   (xxviii)   knowingly makes a false accusation against any other prison officer or prisoner, or wilfully suppresses any material facts, or makes or joins in making any anonymous complaint;

      (xxix)   is unduly familiar with prisoners;

      (xxx)   assists or connives with any prisoner in having or obtaining any prohibited article;

      (xxxi)   with intent to cause any breach of this Act, holds correspondence or any intercourse with persons who have been discharged from prison or with their relatives or friends;

      (xxxii)   being called upon by the Commissioner (duly authorized thereto by the Minister) to furnish a full and true statement of his financial position, fails to do so;

   (xxxiii)   contravenes section 17, 18, 19 or 21;

   (xxxiv)   is guilty of any neglect of duty; or

   (xxxv)   is guilty of any other act, conduct, disorder, or neglect of duty to the prejudice of good order or discipline,shall be guilty of an offence against discipline.

   (3) Nothing in this section shall be construed to exempt any prison officer from being proceeded against for any offence against any other law, so however that no such officer shall be punished twice for the same act or omission.

44.   Prison officer to have power to arrest

   Any prison officer may arrest without warrant any prison officer, not being an officer of his own or of senior rank or grade, whom he suspects on reasonable grounds of having committed an offence under section 43. A prison officer effecting an arrest under this section shall forthwith bring the accused before the officer in charge, who shall cause the case to be heard without undue delay and may order the remand of the accused in custody for so long as may reasonably be necessary.

45.   Confinement of arrested prison officer

   Until such time as his case is heard in accordance with this Act, any prison officer arrested under this Act may be confined in any prison quarters allocated for prison or guardroom purposes, or, if no other suitable quarters are available, in any prison quarters set apart for the detention of prisoners awaiting trial.

46.   Power to try junior prison officers

   (1) The Commissioner, or a senior officer authorized by the Commissioner, may inquire into any alleged offence against discipline by a prison officer who shall be present at such inquiry and thereupon, if satisfied that such offence has been committed, the offender may be punished by—

   (a)   admonition;

   (b)   reprimand;

   (c)   severe reprimand;

   (d)   stoppage of pay where there has been absence without leave, or loss by negligence of or injury to public property;

   (e)   fine not exceeding a month's pay;

   (f)   reduction in rank;

   (g)   dismissal, subject to any regulation;

   (h)   the punishment set out in paragraph (a) or (b) and the punishment set out in paragraph (d);

   (i)   any two or more of the punishments set out in paragraphs (c) to (g) inclusive:

   Provided that, in the case of dismissal, the only further punishments which may be imposed shall be those set out in paragraphs (d) and (e).

   (2) Every punishment awarded or recommendation made by a senior officer under subsection (1) shall be subject to confirmation by the Commissioner, and any such punishment shall remain in abeyance until the Commissioner has signified his decision thereon.

47.   Power to try subordinate prison officers

   (1) The Commissioner, a senior officer or officer in charge may inquire into any alleged offence against discipline by a prison officer subordinate to him who shall be present at such inquiry and thereupon, if satisfied that such offence has been committed, the offender may be punished by—

   (a)   admonition;

   (b)   reprimand;

   (c)   severe reprimand;

   (d)   confinement to lines or extra duty for a period not exceeding seven days, or both such confinement and such extra duty;

   (e)   fine not exceeding one-half of a month's pay;

   (f)   forfeiture of one or more efficiency badges;

   (g)   stoppage of pay where there has been absence without leave, or loss by neglect of or injury to public property;

   (h)   reduction in rank;

   (i)   dismissal, subject to any regulation;

   (j)   the punishment set out in paragraph (a) or (b) and the punishment set out in paragraph (g);

   (k)   any two or more of the punishments set out in paragraphs (c) to (i) inclusive:

   Provided that, in the case of dismissal, the only further punishments which may be imposed shall be those set out in paragraphs (e) to (g) inclusive.

   (2) Any sentence of a fine exceeding twenty shillings, reduction in rank, forfeiture of efficiency badges, or dismissal awarded by a senior officer or officer in charge under subsection (1) shall be subject to confirmation by the Commissioner, and any such punishment shall remain in abeyance until the Commissioner has signified his decision thereon.

48.   Procedure after award of punishment

   (1) The Commissioner may enhance, vary, or remit any punishment referred to him for confirmation under section 46 or 47 and may cancel any recommendation made thereunder.

   (2) An appeal against any decision of the Commissioner relating to any punishment awarded or recommendation made under section 46, 47 or section 51 (2) shall lie to the Minister, who may vary, or remit any such punishment and may act upon any such recommendation as he deems fit. No appeal shall lie under this subsection unless notice of intention to appeal has been given to the Commissioner within fourteen days of his decision being conveyed to the prison officer concerned.

   (3) No decision by the Minister or Commissioner in terms of this section shall be made to the prejudice of the prison officer concerned unless such officer has had an opportunity of making representations in writing on his own behalf to the Minister or Commissioner, as the case may be.

49.   Stoppages of pay

   Any stoppage of pay exceeding one-half of the offender's monthly pay imposed by an officer in charge shall be subject to confirmation by the Commissioner and all stoppages of pay shall be recovered from the offender's pay due or thereafter accruing, and so much only of his pay shall be stopped as shall leave him a residue of at least one-half of his monthly pay.

50.   Power to summon witnesses

   (1) Any prison officer empowered to make an inquiry under sections 46 and 47 may, subject to the general or special approval of the Commissioner, summon and examine witnesses on oath, may require the production of any document which in his opinion is relevant to such inquiry, may from time to time adjourn any such inquiry and, for the purposes of this section, may administer oaths.

   (2) Any person summoned as a witness under subsection (1) who fails to attend at the time and place mentioned in the summons or, when required so to do by the prison officer holding the inquiry, fails to attend any adjourned hearing, refuses to take the oath or to answer any question lawfully put to him shall on conviction in a magistrate's court be liable to a fine not exceeding five pounds, or to imprisonment for a period not exceeding one month:

   Provided that no witness shall be obliged to answer any question which may tend to incriminate him or render him liable to any forfeiture or penalty.

   (3) Any person other than a prisoner summoned as a witness under subsection (1) shall be entitled to be paid such allowances and expenses as are normally allowed to such a witness when giving evidence before a magistrate's court.

51.   Offence against discipline may be tried by a magistrate

   (1) In any case where it appears to the Commissioner, the senior officer or the officer in charge who is inquiring into an alleged offence against section 43 that the offence alleged to have been committed would not, by reason of its gravity or by reason of previous offences or for any other reason, be adequately punished by any of the punishments provided in sections 46 and 47 the Commissioner or such officer, as the case may be, shall, without recording a finding, stay the proceedings and, if the case is being investigated by a senior officer or the officer in charge, such officer shall transmit the proceedings to the Commissioner. Where any proceedings have been stayed by the Commissioner or by a senior officer or the officer in charge the Commissioner may order the accused to be taken before a magistrate's court to be dealt with in accordance with subsection (3).

   (2) Where a case has been stayed and transmitted to the Commissioner, the Commissioner may, in lieu of ordering the accused to be dealt with by a magistrate's court, himself hear and determine the case, or direct the case to be dealt with by the senior officer or the officer in charge who transmitted it or by any other officer.

   (3) Where an accused person is taken before a magistrate's court under subsection (1), he shall be liable for any of the offences mentioned in section 43 to a fine not exceeding three months' pay, and to imprisonment for six months.

52.   Interdiction

   (1) The Commissioner may, at any time, in the interests of discipline or public interest, interdict from duty any prison officer if disciplinary or criminal proceedings are being instituted against him.

   (2) Any prison officer interdicted in terms of subsection (1) shall receive such portion of his pay, being not less than one half, as the Commissioner shall determine.

   (3) If such prison officer is not dismissed from the service, he shall receive for the period of his interdiction—

   (a)   in the case of acquittal, his full pay;

   (b)   in any other case, such proportion of his pay as the Commissioner may decide.

   An appeal shall lie to the Minister from any decision of the Commissioner under paragraph (b) and such appeal shall be made and may be dealt with, mutatis mutandis, in accordance with section 48 (2).

   (4) A prison officer shall not by reason of being interdicted from office cease to be a prison officer. During the term of such interdiction, the powers, functions, and privileges vested in him as a prison officer shall be in abeyance, but he shall continue subject to the same responsibilities, discipline, and penalties, and to the same authorities, as if he had not been interdicted.

53.   Dismissal upon fine or imprisonment

   The Minister may, on the recommendation of the Commissioner, dismiss from the service any junior or subordinate officer sentenced by a court to a fine or imprisonment in respect of any offence against any law.

54.   Pay not to accrue during absence without leave or imprisonment

   Unless the Commissioner otherwise orders, no pay shall accrue to any prison officer in respect of any day during which he is absent from duty without leave or is undergoing any sentence of imprisonment.

PART VII
DESERTION OR INCITING

55.   Desertion

   Any prison officer who absents himself from duty without reasonable cause for a period exceeding twenty-one days shall be deemed to be a deserter and shall be liable to a fine of £100 and to imprisonment for two years.

56.   Deserter may be apprehended by prison or police officer

   Any prison officer or police officer who has reason to believe that any prison officer has deserted from the service may apprehend him and—

   (a)   take him forthwith to a police station and lay a charge against him; or

   (b)   if there is no police station in the vicinity, take such person forthwith before a magistrate with a view to obtaining a warrant for his arrest.

57.   Penalty for inciting prison officer to desert

   Any person who by any means, directly or indirectly, procures or persuades, or attempts to procure or persuade, any officer of the service to desert, or who aids, abets or is accessory to the desertion of any officer of the service, or who, having reason to believe that any person is a deserter, harbours such deserter, or aids him in concealing himself or assists in his rescue, shall be liable to a fine of £50 and to imprisonment for six months.

58.   Penalty for mutiny or sedition

   Any prison officer who mutinies and any prison officer or other person who, directly or indirectly, instigates, commands, counsels, or solicits any mutiny or sedition amongst any prison officers or prisoners or disobedience to any lawful command given by any prison officer, or who attempts to seduce any prison officer from his allegiance or duty, shall be liable to a fine of £100 and to imprisonment for two years, and in addition to any such punishment shall be liable to a sentence of corporal punishment in accordance with section 98.

PART VIII
ADMISSION AND CONFINEMENT OF PRISONERS

59.   Admission of prisoners

   (1) No person shall be admitted into a prison unless accompanied by—

   (a)   a remand warrant, order of detention, warrant of conviction or of committal under the hand of any person authorized to sign or countersign such warrant or order under any law;

   (b)   an order of a court martial;

   (c)   a written requisition of an immigration officer issued in terms of the Immigration Act; or

   (d)   an order in writing signed by a member of a police force of or above such rank as may be prescribed.

   (2) An order issued under subsection (1) (d) shall be valid only for such period as is necessary to obtain a warrant or order referred to in subsection (1) (a) and for no longer.

   (3) The officer in charge shall satisfy himself before the admission of a prisoner that such prisoner is the person named in the requisition or in the warrant or order of detention accompanying him, and that such requisition, warrant, or order bears the signature of the proper authority lawfully authorized to issue it, and that it is in all other respects in order.

   (4) The officer in charge shall not refuse to accept any prisoner merely on the ground that there is an error on the face of any requisition, warrant or order of detention accompanying such prisoner, but shall take steps as soon as practicable to have such error corrected.

60.   Admission of infant child with female prisoner

   Subject to such conditions as may be specified by the Commissioner any unweaned infant child of a female prisoner may be received into prison with its mother and may be supplied with clothing and necessaries at the public expense:

   Provided that, when such child has been weaned, the officer in charge, on being satisfied that there are relatives or friends of the child able and willing to support it, shall cause such child to be handed over to such relatives or friends, or, if he is not so satisfied, shall hand such child over to the care of such welfare authority as may be approved for the purpose by the Commissioner.

61.   Particulars of prisoner to be recorded

   Upon the admission to prison of any person, the officer in charge shall cause to be recorded such particulars regarding such person as may be prescribed.

62.   Search of prisoners

   Every prisoner, male or female, shall be searched on admission, and at such time subsequently as may be prescribed by a prison officer of his or her own sex, but not in the presence of a person of the opposite sex, and all prohibited articles taken from him.

63.   Money and other effects of prisoners to be kept in custody of the officer in charge

   (1) All money, clothes, or other effects brought into a prison by any prisoner, or sent to a prison for his use, which he is not permitted to retain shall be placed in the custody of the officer in charge, who shall keep an inventory of the same, and all such money, clothes, or other effects shall be returned to such prisoner when he is released or discharged.

   (2) Where any clothes of such prisoner are so old, worn-out, or dirty as to be unsuitable for further use, the officer in charge may order the same to be destroyed, and in such case, on the release or discharge of such prisoner, the officer in charge may, at the public expense, provide him with suitable clothing.

   (3) The officer in charge may refuse to take into prison any property of a prisoner which by reason of its bulk, nature, or excessive quantity cannot be conveniently stored in the prison.

PART IX
SEGREGATION AND CLASSIFICATION OF PRISONERS

64.   Separation of prisoners

   (1) Male and female prisoners shall be kept apart and confined in separate parts of the prison in such manner as to prevent their communicating the one sex with the other.

   (2) Subject to subsection (1), prisoners of each sex shall be divided into the following classes—

   (a)   unconvicted prisoners;

   (b)   convicted prisoners;

   (c)   young prisoners;

   (d)   adults;

   (e)   first offenders;

   (f)   prisoners with previous convictions;

   (g)   prisoners suspected or certified as being of unsound mind;

   (h)   such other classes as the Commissioner may determine; and, so far as the prison accommodation renders it practicable, each such class shall be kept apart from the other classes.

PART X
CUSTODY AND REMOVAL OF PRISONERS

65.   Prisoners in lawful custody of officer in charge

   Every person confined in a prison shall be in the lawful custody of the officer in charge thereof and, subject to this Act, shall remain in such lawful custody and be subject to prison discipline and to this Act during the whole period of his imprisonment, whether he is or is not within the precincts of a prison.

66.   Production of prisoners in court

   (1) Where it appears to the High Court or any magistrate's court that the attendance before such court of a person who is a prisoner is necessary for the purpose of obtaining evidence in any proceeding before such court, the judge or magistrate, as the case may be, may issue an order directed to the officer in charge of the prison where the prisoner is serving a sentence, requiring him to produce the prisoner at the time and place specified in the order, and such officer in charge shall arrange for compliance with such order.

   (2) The court before which any person is produced in accordance with an order issued in terms of subsection (1) may give such directions as to the costs of compliance with the order as such court may deem fit.

67.   Prisoners under police escort

   (1) Prisoners on remand or committed for trial, who are required to attend any court, may be taken for that purpose into police custody at the prison to which they have been committed, and shall remain under police supervision and guard until returned to the prison or discharged by the court.

   (2) Where on the removal of any prisoner from any prison the number of prison officers is insufficient to provide escort for such prisoner, the officer in charge of the prison from which the prisoner is to be removed may, with the general or special permission of the Commissioner of Police in Malawi, deliver the prisoner to any member of the police force who may be detained for such duty.

   (3) While a prisoner is in the custody of a member of a police force in accordance with this Act, he shall be deemed to be in lawful custody, and escape from the custody of such member of a police force shall be deemed to be escape from lawful custody.

68.   Statements to police officers

   (1) Subject to subsection (2), a member of a police force, with the approval of the officer in charge of a prison and on production of an order in writing from a member of a police force of or above such rank as may be prescribed, may, in the sight and hearing of a prison officer, interview within a prison any prisoner for purposes connected with the investigation of any offence whatsoever.

   (2) If the officer in charge is satisfied that a prisoner is willing to be interviewed by members of a police force out of the sight and hearing of a prison officer, then the officer in charge may permit that prisoner to be interviewed by not less than two members of a police force within the prison and out of the sight and hearing of a prison officer.

69.   Prisoners and criminal investigations

   (1) If a commissioned officer of a police force certifies verbally or in writing that a prisoner is required at a police station or any other place in the interests of justice or in connexion with the investigation of a crime, whether committed or alleged to have been committed by such prisoner or by some other person and whether or not such prisoner is detained in connexion with such crime, the officer in charge in whose custody such prisoner is may release, remove, or permit the removal of such prisoner from prison in accordance with this section.

   (2) An officer in charge may release any unconvicted prisoner into police custody for such period as he considers necessary for the purposes mentioned in subsection (1).

   (3) An officer in charge may remove or permit the removal of a convicted prisoner from prison in the custody of a prison officer, and in any interview between the police and such prisoner such prison officer shall remain in sight of the prisoner.

   (4) Subject to the general or specific directions of the Commissioner, an officer in charge may release any convicted prisoner into police custody for such period as he considers necessary for the purposes mentioned in subsection (1).

70.   Removal of prisoners from one prison to another

   The Commissioner may, by any general or special order, direct that any prisoner shall be removed to any prison other than that in which he is confined or to which he has been committed.

71.   Certain prisoners may be restrained

   Whenever the officer in charge considers it necessary for the safe custody of any prisoner that he should be confined by means of mechanical restraint, he may so confine him but in accordance with such regulations as may be prescribed.

72.   Mentally disordered or defective prisoners

   (1) Any convicted prisoner adjudged according to any law to be a mentally disordered or defective person shall remain in the place named in the order providing for his detention as such until such prisoner has been discharged in accordance with such law, whereupon the Minister shall, if such prisoner has not completed the sentence in respect of which he was committed, order that he be delivered into the custody of the officer in charge of a prison for the completion of such sentence. In cases where the prisoner has completed the sentence in respect of which he was committed, he shall forthwith be released.

   (2) If any prisoner mentioned in subsection (1) was sentenced to death before being adjudged to be a mentally disordered or defective person and such sentence has not, at the time when he is certified to be of sound mind, been commuted to a term of imprisonment, then the Minister shall report the matter to the President.

73.   Removal of sick prisoners to hospital

   (1) In the case of the serious illness of a prisoner, the officer in charge, on the advice of the medical officer, may make an order for the removal of such prisoner to a hospital. In cases of emergency, or in the absence of the medical officer, such removal may be ordered by the officer in charge.

   (2) So long as any prisoner who has been removed to any hospital under this section remains therein, he shall be deemed to be in lawful custody. The medical authority in charge of the hospital shall on admission of such prisoner, and at the end of every month while such prisoner remains in hospital, transmit to the officer in charge of the prison whence he came a certificate signed by him, stating his opinion as to the necessity for such prisoner to remain in the hospital and, when possible, stating the period for which such prisoner should so remain.

   (3) When, in the opinion of the medical authority in charge of any hospital, it is no longer necessary that any prisoner should remain therein, he shall transmit to the officer in charge of the prison whence such prisoner came a certificate stating that such necessity has ceased, and thereupon such officer in charge shall cause such prisoner to be brought to the prison, if he is still liable to be confined therein.

   (4) Every reasonable precaution shall be taken by the medical and other officers of any hospital to prevent the escape of any prisoner at any time under treatment therein, and it shall be lawful for such officers to take such measures for preventing the escape of any such prisoner as are reasonably necessary:

   Provided that the medical authority in charge of any such hospital may refuse to take or permit any action authorized under this section, if, in his opinion, such action would be prejudicial to the health of such prisoner or impracticable for any good and sufficient reason.

   (5) Where, on account of the gravity of the offence for which any prisoner is in custody, or for any other reason, an officer in charge considers it to be desirable to take special measures for the security of such prisoner while he is undergoing treatment in hospital, it shall be lawful for him, by order in writing, to give such prisoner into the custody of fit and proper persons, being not less than two in number and willing to undertake such duty, one of whom at least shall always be with such prisoner by day and night, and such persons are hereby vested with authority to do all things reasonably necessary to prevent such prisoner from escaping and shall be answerable for his safe custody until such time as he is handed over to an officer in charge on his discharge from hospital, or until such time as his sentence expires, whichever may first occur.

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