CHAPTER 45:01
EXCHANGE CONTROL

ARRANGEMENT OF SECTIONS

   SECTION

   1.   Short title

   2.   Interpretation

   3.   Regulations

   4.   Evidence and presumption

   5.   Financial provision

   6.   Application to the Government

17 of 1984
G.N. 84/1984
79/1985

An Act to provide for exchange control and for matters incidental thereto, and to repeal the Exchange Control Act.

[1ST NOVEMBER 1984]

1.   Short title

   This Act may be cited as the Exchange Control Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

   “bullion” means gold and includes any metal or coins declared under subsection (2) to be bullion for the purposes of this Act;

   “currency” includes coins, currency notes, drafts, travellers’ cheques, letters of credit, bills of exchange and promissory notes;

   “foreign currency” means any currency that is not, or is payable or expressed otherwise than in, Malawi currency;

   “foreign exchange means” foreign currency and foreign securities;

   “foreign securities” includes—

   (a)   any securities the principal of or interest from which is repayable or payable in any country other than Malawi or in a foreign currency;

   (b)   any securities in respect of which the funds necessary for the repayment of the principal or the payment of the interest are provided from any country other than Malawi;

   (c)   any securities that are registered outside Malawi;

   (d)   any security, debt or right which may be prescribed under section 3 for the purposes of this definition;

   “gold” means gold coin or gold bullion;

   “Malawi currency” means any currency that is, or is payable or expressed in currency that is, legal tender in Malawi;

   “the Regulations” means regulations made under section 3;

   “securities” includes stocks, shares, bonds, debentures, debenture stock, unsecured notes transferable or negotiable deposits, treasury bills, units or sub-units of a unit trust and policies of life or endowment assurance, and also includes deposit receipts in respect of the deposit of any such securities and documents of title to any such securities.

   (2) The Minister may, by Order published in the Gazette, declare any metal or coins to be bullion for the purposes of the definition of that word in subsection (1).

3.   Regulations

   (1) The Minister may make regulations for the purpose of the control of foreign exchange, bullion and Malawi currency.

   (2) In particular and without limiting the generality of sub-section (1), the Regulations may relate to—

   (a)   the powers, rights, duties and responsibilities of authorized dealers in bullion or foreign exchange and the rates at which they may enter into transactions in foreign exchange or bullion;

   (b)   the buying, selling, borrowing, lending or exchange of foreign currency or bullion;

   (c)   any dealing or transaction having the effect of a purchase, sale, borrowing, loan, or exchange of foreign currency or bullion;

   (d)   the taking of or sending out of Malawi, Malawi Currency, foreign currency or bullion;

   (e)   transactions in Malawi Currency with or on behalf of persons resident outside Malawi;

   (f)   a requirement that any person who has power to sell, or to procure the sale of, any foreign currency or bullion, shall sell or procure the sale of the currency or bullion in accordance with the Regulations;

   (g)   the taking, sending, transmission or transfer out of Malawi of securities prescribed in the Regulations, and other dealings with or transactions in securities so prescribed;

   (h)   the imposition by the Minister of restrictions and conditions on authorized dealers in bullion or foreign exchange;

   (i)   the imposition of any prohibition, restriction, or requirement on the import or export of moveable property;

   (j)   the appointment of persons to perform any prescribed functions for the purposes of the Regulations.

   (3) The Regulations may—

   (a)   regulate or prohibit the carrying on of any dealings or transactions or the doing of any act;

   (b)   constitute offences and prescribe penalties therefor, in the case of an individual, not exceeding a fine of K100,000 and imprisonment for five years, and in the case of a body corporate a fine without limit;

   (c)   provide for the prosecution and punishment of the officers of bodies corporate convicted of an offence against the Regulations;

   (d)   empower a court to order the forfeiture of Malawi Currency, foreign currency, securities, bullion or goods in respect of which an offence has been committed against the Regulations;

   (e)   empower a court to order the sale to, or the vesting in, the Administrator General, of Malawi currency, foreign currency, securities, bullion or property, retained, obtained or dealt with in contravention of the Regulations.

   (4) The Regulations may create offences with respect to acts done, or dealings or transactions carried out, in or outside Malawi or partly in and partly outside Malawi.

   (5) The power under this section to make the Regulations may be exercised—

   (a)   either in relation to all cases to which the power extends, or in relation to all of those cases subject to specified exceptions, or in relation to any specified case or class of case; and

   (b)   so as to make, as respects the cases in relation to which it is exercised,—

      (i)   the same provision for all those cases, or different provisions as respects the same case or class of case for different purposes; or

      (ii)   any such provision either unconditionally or subject to any specified condition.

4.   Evidence and presumption

   (1) Any document purporting to be an authority, permission, direction, notice or other instrument made or issued by or on behalf of any person in pursuance of any provision of this Act or the Regulations, and purporting to be signed by or on behalf of any such person, shall be received in evidence and shall, until the contrary is proved, be deemed to be such an instrument so made or issued and signed.

   (2) Any person charged with any act or omission which is an offence under this Act or the Regulations if done or omitted to be done without an exemption, permission or other authorization, shall be presumed to have done or to have omitted to do such act without such exemption, permission or other authorization, as the case may be, unless it is proved that he was in possession of such exemption, permission or other authorization, as the case may be, when he performed or omitted to perform the act in question.

5.   Financial provision

   Any expense incurred under or by virtue of this Act or the Regulations by the Government or any department thereof shall be paid out of moneys provided for the purpose by Parliament.

6.   Application to the Government

   This Act and the Regulations bind the Government and apply to transactions by a Ministry or a department or other person acting on behalf of the Government, and the Minister shall not, by virtue of any contract made by them or on their behalf in relation to any bullion, currency or securities, be under any obligation to grant any permission or exemption under the Regulations.

SUBSIDIARY LEGISLATION

EXCHANGE CONTROL REGULATIONS

ARRANGEMENT OF REGULATIONS

REGULATION

PART I
PRELIMINARY

   1.   Citation

   2.   Interpretation

   3.   Authorized dealers

   4.   Directions

   5.   Exemptions

   6.   Power to obtain information

PART II
BULLION

   7.   Application of Part

   8.   Transfer of bullion out of Malawi

   9.   Limitation on purchase of bullion, etc.

PART III
MONETARY CONTROL

   10.   Dealings in foreign currency

   11.   Transfer of foreign currency out of Malawi

   12.   Transfer of Malawi currency out of Malawi

PART IV
CONTROL OF CERTAIN PAYMENTS, ETC.

   13.   Exception

   14.   Control of certain payments in Malawi

   15.   Control of certain payments outside Malawi

   16.   Control of certain transactions

   17.   Certain loans prohibited

PART V
SECURITIES AND FOREIGN SECURITIES CONTROL

   18.   Issue, etc., of securities

   19.   Taking, etc., securities out of Malawi

   20.   Foreign securities

PART VI
COMPANIES

   21.   Interpretation

   22.   Forein companies

   23.   Transfer of control of body corporate

   24.   Loans to bodies corporate

PART VII
MISCELLANEOUS

   25.   Possession of foreign currency prohibited

   26.   Blocked accounts

   27.   Travellers

   28.   Residents leaving Malawi

   29.   Payments for export of moveable property, etc.

   30.   Provisions relating to the import of moveable property

PART VIII
LEGAL PROVISIONS AND OFFENCES

   31.   Legal proceedings

   32.   Contracts, etc.

   33.   False statements

   34.   Evasion of Regulations

   35.   Restrictions on disclosure of information

   36.   Forfeiture, etc.

   37.   Offences by body corporate

   38.   Forms

G.N. 89/1984
79/1985
86/1986
26/1987
50/1993

EXCHANGE CONTROL REGULATIONS

under s. 3

PART I
PRELIMINARY

1.   Citation

   These Regulations may be cited as the Exchange Control Regulations.

2.   Interpretation

   (1) In these Regulations—

   “authorized dealer”, in relation to any particular regulation, means a person appointed pursuant to regulation 4 for the purpose of that particular regulation;

   “the Bank” means the Reserve Bank of Malawi established under section 3 of the Reserve Bank of Malawi Act.

   (2) For the purposes of these Regulations, a personal representative of a deceased person shall, unless the Minister otherwise directs, be treated as resident where the deceased person was resident at the time of his death so far as relates to any matter in which the personal representative is concerned solely in that capacity.

   (3) Notwithstanding any rule to the contrary, the Minister may give directions declaring that for all or any of the purposes of these Regulations a person is to be treated as resident or not resident in Malawi or any other territory, and the person shall be treated for the purposes of these Regulations as being so resident or, as the case may be, not so resident.

   (4) Any permission under these Regulations—

   (a)   may be either general or specific;

   (b)   may be revoked or varied by the person giving the permission;

   (c)   may be absolute or conditional;

   (d)   may be limited to expire on a specified date, unless renewed; and

   (e)   shall be published in such a way as, in the opinion of the person giving the permission, to give any person entitled to the benefit of it an adequate opportunity of getting to know of it, unless in his opinion publication is not necessary for that purpose.

   (5) Where the doing of an act by any person who has a particular attribute or stands in a specified relation to any property is prohibited by these Regulations, the doing of that act by two or more persons is likewise prohibited notwithstanding that only one or some of those persons have that attribute or stand in that relationship.

3.   Authorized dealers

   The Minister may appoint any person to be an authorized dealer for the purposes of any regulation, and may revoke or vary any such appointment.

4.   Directions

   The Minister may give—

   (a)   general directions indicating the considerations to which authorized dealers or the Bank should have particular regard in carrying out functions under these Regulations; or

   (b)   specific directions to an authorized dealer or the Bank with respect to the carrying out of any of those functions,

and an authorized dealer and the Bank shall comply with any such direction so given.

5.   Exemptions

   (1) The Minister may, by Order published in the Gazette, exempt from the operation of any regulation any act or transaction, or any class of acts or transactions, either unconditionally or subject to such conditions as are specified in the Order.

   (2) The Minister may, by Order published in the Gazette, vary or revoke any Order made under subregulation (1).

6.   Power to obtain information

   (1) The Minister may, by notice in writing to any person, require that person to furnish within the period specified in the notice such information as the Minister requires with respect to any act, transaction, matter or thing to which any provision of these Regulations applies, and to produce books, documents or other records, relating to it, in his custody or under his control.

PART II
BULLION

7.   Application of Part

   (1) In this regulation, “wrought gold” means gold and gold alloys which, on sight, appear to have been worked or manufactured for professional or trade purposes.

   (2) This Part does not apply to wrought gold unless it is worked or manufactured in contravention of these Regulations.

8.   Transfer of bullion out of Malawi

   (1) Subject to subregulation (2), a person who takes or sends, or attempts to take or send, bullion out of Malawi is guilty of an offence and liable to a fine of K25,000 and to imprisonment for three years.

   (2) The Minister may give permission to a person to take or send bullion out of Malawi and, if he does so, subregulation (1) does not apply in relation to a thing done or transaction entered into in accordance with the permission.

9.   Limitation on purchase of bullion, etc.

   (1) Subject to subregulation (2), a person, other than the Bank or an authorized dealer—

   (a)   who buys or otherwise obtains bullion from any person; or

   (b)   resident in Malawi who outside Malawi buys or otherwise obtains bullion from any person, is guilty of an offence and liable to a fine of K25,000 and to imprisonment for three years.

   (2) A person may buy bullion for the purpose of its being worked or used by him in connexion with his profession or trade if the bullion is purchased from—

   (a)   the Bank;

   (b)   an authorized dealer; or

   (c)   a person resident outside Malawi,

with the consent of the Minister.

   (3) A person who, in Malawi, works or uses in manufacture any bullion, not being bullion lawfully in his possession for the purposes of being worked or used by him in connexion with his profession or trade, is guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years.

PART III
MONETARY CONTROL

10.   Dealings in foreign currency

   (1) Subject to subregulation (3), a person, other than the Bank, who except with the permission of the Minister, in Malawi—

   (a)   buys or borrows any foreign currency from a person other than the Bank;

   (b)   sells or lends any foreign currency to a person other than the Bank; or

   (c)   exchanges any foreign currency with a person other than the Bank,

is guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years.

   (2) Subject to subregulation (3), a person, other than the Bank, who except with the permission of the Minister is a party to a transaction having the effect of a transaction prohibited by subregulation (1) is guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years.

   (3) The Minister may give permission to an authorized dealer to do anything in relation to or be a party to any transaction referred to in subregulation (1) or (2), and if permission is so given then, in relation to the thing done or transaction entered into in accordance with the permission, subregulation (1) or, as the case may be, subregulation (2) does not apply.

   (4) Where foreign currency is made available to any person by the Bank or by an authorized dealer for use for a specified purpose or subject to any condition, then if that person—

   (a)   uses the foreign currency otherwise than for that purpose; or

   (b)   as the case may be, fails or refuses to comply with those conditions,

he is guilty of an offence and liable to a fine of K5,000 and to imprisonment for two years.

11.   Transfer of foreign currency out of Malawi

   (1) Subject to subregulations (2), (3) and (4), a person, other than the Bank, who takes or sends, or attempts to take or send, any foreign currency out of Malawi is guilty of an offence and liable to a fine of K25,000 and to imprisonment for three years.

   (2) Where, pursuant to regulation 10, foreign exchange is made available to any person, subregulation (1) does not apply in relation to the taking or sending, or the attempted taking or sending, out of Malawi of that currency, but without prejudice to the operation of regulation 10 (4).

   (3) Subregulation (1) does not apply in relation to a person—

   (a)   who is not resident in Malawi; and

   (b)   who takes or sends, or attempts to take or send, out of Malawi an amount of foreign exchange which is not in excess of the amount of foreign currency brought or sent by him into Malawi.

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