CHAPTER 16:01
IMMUNITIES AND PRIVILEGES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
STATE IMMUNITY

   3.   General immunity from jurisdiction

   4.   Submission to jurisdiction

   5.   Commercial transactions

   6.   Contracts of employment

   7.   Personal injuries and damage to property

   8.   Ownership, possession and use of property

   9.   Patents, trade marks, etc.

   10.   Membership of corporate bodies

   11.   Arbitration

   12.   Proceedings against ships used for commercial purposes

   13.   Duties and rates

   14.   Service of process and default judgments

   15.   Other procedural privileges

   16.   States entitled to immunities and privileges

   17.   Heads of State

   18.   Excluded matters

   19.   Evidence by certificate

PART III
DIPLOMATIC IMMUNITIES AND PRIVILEGES

   20.   Application of Convention on Diplomatic Relations

PART IV
CONSULAR IMMUNITIES AND PRIVILEGES

   21.   Application of Convention or Consular Relations

   22.   Agreements to accord immunities and privileges

   23.   Commonwealth representatives

PART V
INTERNATIONAL ORGANIZATIONS, ETC.

   24.   Immunities and privileges of certain international organizations and persons connected therewith

   25.   Representatives of sovereign governments at international conferences

   26.   External agencies which provide cooperation or co-assistance

   27.   Modifications with respect to the United Nations Organization

   28.   Reciprocal treatment

PART VI
GENERAL PROVISIONS

   29.   Restriction and extension of privileges, immunities or powers

   30.   Admiralty jurisdiction of High Court

   31.   Special provisions relating to customs duty

   32.   Evidence

   33.   Oaths and notarial acts

      First Schedule

      Articles of Vienna convention on Diplomatic Relations having the Force of Law in Malawi

      Second Schedule

      Articles on Vienna convention on Consular Relations having the Force of Law in Malawi

      Third Schedule

      Provisions for giving Effect to other Agreements

      Fourth Schedule

      Organizations

      Fifth Schedule

      Immunities and Privileges of an Organization and Officers thereof

16 of 1984
G.N. 78/1986
70/1996
102/1996
17/1999
14/2001
11/2002
28/2003
29/2003
27/2007
31/2007

An Act to determine the extent of the immunity of foreign states from the jurisdiction of the courts of Malawi; to provide for diplomatic and consular privileges and immunities by giving effect to certain international conventions and otherwise and for privileges and immunities of international organizations; and for connected purposes

[17TH APRIL 1984]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Immunities and Privileges Act.

2.   Interpretation

   (1) In this Act—

   “commercial purposes” means purposes of any commercial transaction as defined in section 5 (3);

   “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions and any person in the service of the government of a Commonwealth country performing any such functions;

   “consular post” means any consulate-general, consulate, vice-consulate or consular agency;

   “diplomatic agent” has the meaning assigned to it in Article 1 in the First Schedule.

   (2) In the Articles set out in the First and Second Schedules—

   “agent of the receiving State” or “authorities of the receiving State” shall be construed as including a police officer and any person exercising a power of entry into or upon premises under any written law;

   “grave crime” shall be construed as meaning any offence which, on first conviction, is punishable with imprisonment for a term which may extend to five years or with a more severe sentence;

   “national of the receiving State” shall be construed as meaning a citizen of Malawi.

PART II
STATE IMMUNITY

3.   General immunity from jurisdiction

   (1) A State is immune from the jurisdiction of the courts of Malawi except as provided in this Part of this Act.

   (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

4.   Submission to jurisdiction

   (1) A State is not immune as respects proceedings in respect of which it has submitted to the jursidiction of the courts of Malawi.

   (2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in an agreement that it is to be governed by the law of Malawi is not to be regarded as a submission.

   (3) A State is deemed to have submitted—

   (a)   if it has instituted the proceedings; or

   (b)   subject to subsection (4), if it has intervened or taken any step in the proceedings.

   (4) Subsection 3 (b) does not apply to intervention or any step taken for the purpose only of—

   (a)   claiming immunity; or

   (b)   asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.

   (5) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim.

   (6) The head of a State’s diplomatic mission in Malawi, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of or with the authority of a State shall be deemed to have authority to submit on its behalf in proceedings arising out of contract.

5.   Commercial transactions

   (1) A State is not immune as respects proceedings relating to—

   (a)   a commercial transaction entered into by the State; or

   (b)   an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in Malawi.

   (2) Subsection (1) does not apply if the parties to the dispute are States or have otherwise agreed in writing.

   (3) In subsection (1) “commercial transaction” means—

   (a)   any contract for the supply of goods and services;

   (b)   any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of such transaction or of any other financial obligation; and

   (c)   any other transaction or activity of a commercial, industrial, financial, professional or other similar character into which a State enters or in which it engages otherwise than in the exercise of sovereign authority,

but does not include a contract of employment between a State and an individual.

6.   Contracts of employment

   (1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual if—

   (a)   the contract was entered into in Malawi of the work is to be performed wholly or partly in Malawi; and

   (b)   at the time when the contract was entered into the individual was a citizen of Malawi or was ordinarily resident in Malawi; and

   (c)   at the time when the proceedings are brought the individual is not a citizen of the State concerned.

   (2) Subsection (1) does not apply if the parties to the contract have otherwise agreed in writing unless the law of Malawi requires the proceedings to be brought in Malawi.

7.   Personal injuries and damage to property

   A State is not immune as respects proceedings relating to—

   (a)   the death or injury of any person; or

   (b)   damage to or loss of tangible property, caused by an act or omission in Malawi.

8.   Ownership, possession and use of property

   A State is not immune as respects proceedings relating to—

   (a)   any interest of the State in, or its possession or use of immoveable property in Malawi;

   (b)   any obligation of the State arising out of its interest in, or its possession or use of, such property; or

   (c)   any interest of the State in moveable or immoveable property, being an interest arising by way of succession, gift or bona vacantia.

9.   Patents, trade-marks, etc.

    A State is not immune as respects proceedings relating to—

   (a)   any patent, trade-mark, design or plant breeder’s right belonging to the State and registered or protected in Malawi or for which the State has applied in Malawi; or

   (b)   an alleged infringement by the State in Malawi of any patent, trade-mark, design, plant breeder’s right or copyright; or

   (c)   the right to use a trade or business name in Malawi.

10.   Membership of corporate bodies

   (1) A State is not immune as respects proceedings relating to its membership of a body corporate, an unincorporated body or a partnership which—

   (a)   has members other than States; and

   (b)   is incorporated or constituted under the law of Malawi or is controlled from or has its principal place of business in Malawi,

being proceedings arising between the State and the body or its other members or, as the case may be, between the State and the other partners.

   (2) This section does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question.

11.   Arbitration

   (1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of Malawi which relate to the arbitration.

   (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States.

12.   Proceedings against ships used for commercial purposes

   (1) A State is not immune as respects—

   (a)   an action in rem against a ship belonging to that State;or

   (b)   an action in personam for enforcing a claim in connexion with such a ship,

if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.

   (2) A State is not immune as respects—

   (a)   an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or

   (b)   an action in personam for enforcing a claim in connexion with such a cargo if the ship carrying it was then in use or intended for use for commercial purposes.

   (3) References in this section to a ship or cargo belonging to a State include references to a ship or cargo in its possession or control or in which it claims an interest; and subject to subsection (2) subsection (1) applies to property other than a ship as it applies to a ship.

13.   Duties and rates

   A State is not immune as respects proceedings relating to its liability for—

   (a)   any duty of customs or excise;or

   (b)   rates in respect of premises occupied by it for commercial purposes.

14.   Service of process and default judgments

   (1) Any process or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Ministry of External Affairs to the Ministry of Foreign Affairs of that State and service shall be deemed to have been effected when the process or other document is received at that State’s Ministry.

   (2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the process or document is received at the State’s Ministry.

   (3) A State which appears in proceedings cannot thereafter raise any objection on the ground that subsection (1) has not been complied with in the case of those proceedings.

   (4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) has been complied with and that the time for entering an appearance as extended by subsection (2) has expired.

   (5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Ministry of External Affairs to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at that State’s Ministry.

   (6) Subsection (1) does not prevent the service of a process or other document in any manner to which the State has agreed and subsections (2) and (4) do not apply where service is effected in any such manner.

   (7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem, and subsection (1) shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction

15.   Other procedural privileges

   (1) Subject to subsections (2) and (3)—

   (a)   relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and

   (b)   the property of a State shall not be subject to any process for the enforcement of a judgment or an arbitration award or, in an action in rem, for its arrest, detention or sale.

   (2) Subsection (1) does not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection.

   (3) Subsection (1) (b) shall not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes.

16.   States entitled to immunities and privileges

   (1) The immunities and privileges conferred by this Part apply to any foreign or Commonwealth State other than Malawi; and references to a State include references to—

   (a)   the sovereign or other head of that State in his public capacity;

   (b)   the government of that State; and

   (c)   any department of that government,

but not to any entity (hereinafter referred to as a “separate entity") which is distinct from the executive organs of the government of the State and capable of suing or being sued.

   (2) A separate entity is immune from the jurisdiction of the courts of Malawi if, and only if—

   (a)   the proceedings relate to anything done by it in the exercise of sovereign authority; and

   (b)   the circumstances are such that a State would have been so immune.

   (3) If a separate entity (not being a State’s central bank or other monetary authority) submits to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity by virtue of subsection (2), section 15 shall apply to it in respect of those proceedings as if references to a State were references to that entity.

   (4) Property of a State’s central bank or other monetary authority shall not be regarded for the purposes of section 15 (3) as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity section 15 (1) and (2) shall apply to it as if references to a State were references to the bank or authority.

   (5) This section applies to a territory forming a constituent part of a federal State as if such territory were a separate entity of that State.

17.   Heads of State

   (1) Subject to this section and to any necessary modifications, Part III shall apply to—

   (a)   a sovereign or other head of State;

   (b)   members of his family forming part of his household; and

   (c)   his private servants,

as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.

   (2) The immunities and privileges conferred by virtue of subsection (1) (a) and (b) shall not be subject to the restrictions by reference to nationality or residence mentioned in Article 37 (1) or 38 in the First Schedule.

   (3) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by the other relevant sections of this Part and is without prejudice to the application of those sections to any such sovereign or head of State in his public capacity.

18.   Excluded matters

   (1) This Part of the Act does not affect any immunity or privilege conferred by Part III or Part IV; and—

   (a)   section 6 does not apply to proceedings concerning the employment of the members of a mission within the meaning of Article 1 of the Convention in the First Schedule or of the members of a consular post within the meaning of Article 1 of the Convention in the Second Schedule:

   (b)   section 8 (1) does not apply to proceedings concerning a State’s title to or its possession of property used for the purposes of diplomatic mission.

   (2) This Part does not apply to criminal proceedings.

19.   Evidence by certificate

   A certificate by or on behalf of the Minister of External Affairs shall be conclusive evidence on any question—

   (a)   whether any country is a State for the purposes of this Part;

   (b)   whether any territory is a constituent part of a federal State for those same purposes;

   (c)   as to the person or persons to be regarded for the purposes of this Part as the head or government of a State;

   (d)   whether, and if so when, a document has been served or received as mentioned in section 14 (1) or (5).

PART III
DIPLOMATIC IMMUNITIES AND PRIVILEGES

20.   Application of Convention on Diplomatic Relations

   (1) Subject to section 29 (2), the Articles set out in the First Schedule (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) have the force of law in Malawi and shall for that purpose be construed in accordance with subsections (2) to (5).

   (2) For the purposes of Article 32 a waiver by the head of the mission of any State or any person for the time being performing his functions shall be deemed to be a waiver by that State.

   (3) Articles 35, 36 and 40 shall be construed as granting any immunity or privilege which they require to be granted.

   (4) The references in Articles 37 and 38 to the extent to which any immunities and privileges are admitted by the receiving State and to additional immunities and privileges which may be granted by the receiving State shall be construed as referring respectively to the extent to which any immunities or privileges are specified by the Minister by order and to any additional immunities and privileges which may be so specified.

   (5) In its application to the immunity granted by paragraphs 2, 3 and 4 of Article 37 the expression “permanent resident” in Article 38 shall be deemed to extend to any individual other than one who is resident in Malawi solely for the purpose of performing the duties of his office for a mission.

PART IV
CONSULAR IMMUNITIES AND PRIVILEGES

21.   Application of Convention on Consular Relations

   (1) Subject to sections 22 (2) and 29 (2), the Articles set out in the Second Schedule (being Articles of the Vienna Convention on Consular Relations signed in 1963) have the force of law in Malawi and shall for that purpose be construed in accordance with subsections (2) to (9).

   (2) The reference in paragraph 2 of Article 17 to any privileges and immunities accorded by customary international law or by international agreements shall be construed as a reference to any immunities and privileges conferred under Part V.

   (3) The references in Article 44 to matters connected with the exercise of the functions of members of a consular post shall be construed as matters connected with the exercise of consular functions by consular officers or consular employees.

   (4) For the purposes of Article 45 and that Article as applied by Article 58, a waiver shall be deemed to have been expressed by a State if it has been expressed by the head, or any person for the time being performing the functions of head, of the diplomatic mission of that State or, if there is no such mission, of the consular post concerned.

   (5) Articles 50, 51, 52, 54, 62 and 67 shall be construed as granting any immunity or privilege which they require to be granted.

   (6) The reference in Article 57 to the immunities and privileges provided in Chapter II shall be construed as references to those provided in section II of that Chapter.

   (7) The reference in Article 70 to the rules of international law concerning diplomatic relations shall be construed as a reference to Part III of, and of the First Schedule to, this Act.

   (8) The reference in Article 71 to additional immunities and privileges which may be granted by the receiving State or to immunities and privileges so far as these are granted by the receiving State shall be construed as referring to such immunities and privileges as may be specified by the Minister by order.

   (9) In its application to the immunity granted by Article 49 the expression “permanent resident” in Article 71 shall be deemed to extend to any individual other than one who is resident in Malawi solely for the purpose of performing his duties for a consular post.

22.   Agreements to accord immunities and privileges

   (1) Where any agreement made, whether before or after the commencement of this Act, between Malawi and any other State provides for according to consular posts and persons connected with them immunities and privileges not accorded to them by this Act, the Minister may, by order, exercise with respect to the consular posts of that State and persons connected with them the powers specified in the Third Schedule so far as may be necessary to give effect to that Agreement.

   (2) Where any agreement made, whether before or after the commencement of this Act, between Malawi and any other State provides for according to consular posts and persons connected with them some but not all of the immunities and privileges accorded to them by this Act, the Minister may, by order, provide for excluding with respect to consular posts of that State and persons connected with them any of the immunities and privileges which are not provided for by that agreement.

23.   Commonwealth representatives

   (1) The Minister may, by order, confer—

   (a)   on persons in the service of the government of a Commonwealth country who hold such offices or classes of offices which appear to the Minister to involve the performance of duties substantially corresponding to those which, in the case of foreign sovereign power, would be performed by a consular officer;

   (b)   on a person for the time being recognized by the Government as the chief representative of any State or province of a Commonwealth country (in this section referred to as a state representative);

   (c)   on members of the staff of any such person as is mentioned in paragraph (a) or (b),

any immunities or privileges which are conferred by or may be conferred under this Part, and any such order may provide for extending, in relation to premises, official archives, communications, documents and personal property of persons on whom any immunities and privileges are or may be conferred under this subsection, and in relation to any fees and charges levied by them Articles 31, 32, 33, 35, 39 and 51 in the Second Schedule.

   (2) An order under subsection (1) may exclude from any immunities and privileges conferred by it any persons who are permanently resident in Malawi, or who are citizens of Malawi, or any class of such persons.

   (3) Notwithstanding anything in this section—

   (a)   a person for the time being recognized by the Government as the chief representative in Malawi of a Commonwealth country may waive any immunity conferred under this section on a person in the service of the government of the country which he represents;

   (b)   a state representative may waive any immunity conferred by subsection (1) on himself or a member of his staff.

PART V
INTERNATIONAL ORGANIZATIONS, ETC.

24.   Immunities and privileges of certain international organizations and persons connected therewith

   (1) The Minister may, by order—

   (a)   provide that any organization specified in the Fourth Schedule (hereinafter referred to as the organization) shall, to such extent as may be specified in the order, have the immunities and privileges set out in Part I of the Fifth Schedule, and shall also have the legal capacities of a body corporate;

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