ARRANGEMENT OF SECTIONS
1. Short title
MEMBERSHIP OF THE COMMISSION
3. Number of appointed members
4. Procedure for nominating appointed members
5. Tenure of appointed members
6. Chairman of the Commission
9. Co-opted persons
COMPETENCE AND RESPONSIBILITIES OF THE COMMISSION
10. Provisions in furtherance of the Constitution
11. Commission, an independent national institution
12. Competence and powers
13. Duties and functions
15. Methods of operation
HEARINGS, INVESTIGATIONS AND REMEDIES
17. Procedure for hearings
18. Conduct of investigations
19. Entry and search of premises and attachment or removal of articles
20. Entry and search warrant
21. Order of attachment and removal
24. Chairmen of committee
27. Regular supervision
28. Executive Secretary
29. Duties of the Executive Secretary
30. Other staff
31. Attendance of meetings by staff
32. Funding of the Commission
33. Accounting and audit
34. Impartiality and independence
35. Disclosure of interest
36. Oath of office
37. Annual reports to Parliament
27 of 1998
21 of 2016
An Act to make provision relating to the status and functioning of the Human Rights Commission established under Chapter XI of the Constitution and to provide for matters ancillary thereto or connected therewith
[11TH AUGUST 1998]
This Act may be cited as the Human Rights Commission Act.
In this Act, unless the context otherwise requires—
“appointed members” means members of the Commission appointed under section 131 (1) (c) of the Constitution, being those other than the Law Commissioner and the Ombudsman;
“Commission” means the Human Rights Commission established under Chapter XI of the Constitution:
“Executive Secretary” means the officer of the Commission appointed under section 28;
“human rights” means human rights guaranteed by or under the Constitution or any other law in force in Malawi, including international law;
“premises” includes land, any building or structure, any vehicle, conveyance, ship, boat, vessel, aircraft or container;
MEMBERSHIP OF THE COMMISSION
The number of other members of the Commission appointed under section 131 (1) (c) of the Constitution (in this Act referred to as “appointed members”) shall not exceed seven at any one time unless the President, on the recommendation of the Commission, by Order published in the Gazette, prescribes a greater number of appointed members.
(1) The procedure for nominating appointed members shall involve first the issuing of a public advertisement, signed jointly by the Law Commissioner and the Ombudsman, directed to the organizations described in section 131 (1) (c) of the Constitution, being those which both the Law Commissioner and the Ombudsman, in their absolute discretion, consider to be reputable organizations representative of Malawian society and that are wholly or largely concerned with the promotion of rights and fundamental freedoms guaranteed by the Constitution.
(2) The advertisement under subsection (1) shall invite all appropriate organizations to nominate up to two persons who are independent, non-partisan and of high integrity and standing from within or outside the organization for appointment as member or members of the Commission, and to do so within thirty days of the date of the publication of the advertisement and in writing addressed to the Commission, giving the full name and address of any person so nominated and his curriculum vitae.
(3) The Law Commissioner and the Ombudsman shall—
(a) jointly assess the reputation of the nominating organizations and may, for that purpose, seek other or further information pertaining to any nominated person from the person himself or any other person or source before recommending who among the nominated persons shall be formally appointed by the President as members of the Commission;
(b) according to their assessment under paragraph (a), keep a list of reserved names of nominated persons to be appointed to fill any casual vacancy for the remainder of the term of a member who vacates office before the expiry of the term prescribed in section 5 (1).
(4) A list of the names of nominating organizations, the names of the persons nominated and the names of the persons formally appointed by the President and the resultant membership of the Commission shall be published in the Gazette.
(1) Appointed members of the Commission shall hold office for a term of three years, and shall be eligible for re-appointment.
(2) when making recommendations for appointment after the expiry of the three-year term, the Law Commissioner and the Ombudsman shall have regard to the need to maintain a reasonable degree of continuity on the membership of the Commission, so that at least half of the appointed members shall be reappointed for the next term of office.
(3) A casual vacancy in the office of an appointed member shall occur if the member—
(a) is removed from office under section 131 (3) of the Constitution;
(b) dies; or
(c) resigns his office in accordance with subsection (4).
(4) An appointed member may at any time resign his office by giving one month notice addressed to the Law Commissioner and the Ombudsman who shall jointly transmit such notice to the President.
(5) A casual vacancy on the membership of the Commission shall be filled by the appointment of a person on the list of reserved names of nominated persons kept pursuant to section 4 (4).
(6) A person appointed to fill a casual vacancy shall serve for the remainder of the term of office but no person shall be so appointed where the remainder of the term of office is a period of less than six months.
(1) There shall be a Chairman of the Commission who shall be elected by the Commission from among the appointed members at a meeting of the Commission attended by all members.
(2) Subject to subsection (3), the Chairman shall hold office as such until the expiry of his term of office as member of the Commission.
(3) The Chairman may be removed from office as such by the Commission for good cause and upon the unanimous decision of the rest of the members of the Commission.
Members of the Commission shall be paid such honorarium for membership and such allowances when discharging their duties as the Commission shall reasonably determine, subject to the approval of the Public Appointments Committee of Parliament.
(1) The Commission may establish such number of its own committees as it considers necessary for the performance of its functions and may assign to such committees any of its functions without prejudice to the power of the Commission itself to perform the function.
(2) The composition of every committee of the Commission shall include one or more members of the Commission and may include persons who are not members of the Commission but shall not include members of staff of the Commission.
(3) Subject to any general or special directions of the Commission, every committee shall have power to determine its own procedure.
(1) The Commission may invite or engage any person or persons to assist with the conduct of any inquiry or investigation before the Commission.
(2) The Commission or a committee of the Commission may invite any person, on account of his special knowledge or expertize, for any duration of time to take part in its deliberations at any meeting but such person shall not be entitled to vote at such meetings.
COMPETENCE AND RESPONSIBILITIES OF THE COMMISSION
The provisions of this Part are in furtherance of, and without prejudice to, the generality of the mandate, powers and functions of the Commission conferred by the Constitution.
All authorities (including all organs of the Government) bodies and persons shall recognize the status of the Commission as a national institution independent of the authority or direction of any other body or person.
The Commission shall be competent in every respect to protect and promote human rights in Malawi in the broadest sense possible and to investigate violations of human rights on its own motion or upon complaints received from any person, class of persons or body.
(1) The duties and functions of the Commission shall be—
(a) to act as a source of human rights information for the Government and the people of Malawi;
(b) to assist in educating the public on, and promoting awareness and respect for, human rights;
(c) to promote more particularly the human rights of vulnerable groups, such as children, illiterate persons, persons with disabilities and the elderly;
(d) to consider, deliberate upon, and make recommendations regarding any human rights issues, on its own volition or as may be referred to it by the Government;
(e) to study the status and effect of legislation, judicial decisions and administrative provisions for the protection and promotion of human rights and to prepare reports on such matters and submit the reports, with such recommendations or observations as the Commission considers appropriate, to the authorities concerned or to any other appropriate authorities;
(f) to perform any other function which the Government may assign to the Commission in connection with the duties of Malawi under those international agreements in the field of human rights to which Malawi is a party, without derogation from the fact that the Government shall remain primarily responsible for performing such functions.
(2) The Commission shall keep the President fully informed on matters concerning the general conduct of the affairs of the Commission.
The Commission shall have the following responsibilities—
(a) to submit to the President, Parliament or any other competent authority, on an advisory basis, either at the request of the President, Parliament or such other authority or on its own volition, its opinions, recommendations, proposals or reports on any matters concerning the protection and promotion of human rights;
(b) to examine any legislation, judicial decisions or administrative provisions in force as well as Bills and administrative proposals and make recommendations as it considers appropriate in order to ensure that such legislation, judicial decisions, administrative provisions, Bills and administrative proposals conform to the fundamental principles of human rights;
(c) where necessary, to recommend the adoption of new legislation or administrative provisions, or the repeal, replacement or amendment of legislation or administrative provisions in force and relating to human rights;
(d) to comment publicly or as it sees fit on any general or specific situation of violation of human rights and to recommend initiatives or measures to put an end to such situation;
(e) to promote ratification by Malawi of any international human rights instruments;
(f) to promote the harmonization of national legislation and practices with international human rights instruments to which Malawi is a party and to promote and monitor their effective implementation;
(g) to contribute to the reports which Malawi is required to submit pursuant to treaty obligations and, where necessary, express its opinions on the subject matter but always with due regard to its status as an independent national institution;
(h) to cooperate with agencies of the United Nations, the Organization of African Unity, the Commonwealth and other multilateral or regional institutions and national institutions of other countries which are competent in the area of protection and promotion of human rights;
(i) to assist in the formulation of programmes for the teaching of, and research in, human rights and, where appropriate, to take part in their execution in institutions and other bodies, including in schools, universities and professional circles; and
(j) to publicize human rights with the aim of increasing public awareness.
The Commission shall—
(a) freely and without any hinderance whatsoever consider any questions falling within its competence;
(b) hear any person and obtain any information or any other evidence necessary for assessing situations falling within its competence;
(c) subject to the provisions of Part IV, carry out investigations and conduct searches in connexion with matters that are before it or generally in connexion with its powers, duties and functions;
(d) exercise unhindered authority to visit prisons or any place of detention of persons including police cells, with or without notice;
(e) develop work relationships with non-governmental organizations devoted to protecting and promoting human rights, including those organizations which promote economic and social development or which protect and promote the interest of vulnerable groups such as children, illiterate persons, persons with disabilities and the elderly;
(f) maintain consultation with other independent national institutions or bodies, such as the Law Commission, the Ombudsman and the Inspectorate of Prisons, in order to foster common policies, practices and approaches and to promote cooperation in relation to the handling of matters in cases of overlapping jurisdiction;
(g) progressively operate at the national, regional, district and other levels so as to enhance its outreach in the Republic; and
(h) to do or perform such other acts or things as are reasonably required for the exercise of its powers and the performance of its duties and functions.
HEARINGS, INVESTIGATIONS AND REMEDIES
(1) The Commission may hear and consider complaints and petitions within its competence brought before it by individuals or groups of individuals.
(2) Complaints may be brought before the Commission on behalf of individuals or groups of individuals by the individuals themselves, legal practitioners, their representatives, third parties, non-governmental organizations, professional associations or any other representative organizations having an appropriate interest in the matter.
The Commission shall have power to determine its own procedure for the conduct of hearings of matters brought before it but may otherwise be guided by such procedures as may be prescribed by regulations made under this Act
(1) For the purposes of conducting investigations necessary for the exercise of its powers and performance of its duties and functions, the Commission shall have powers—
(a) through a member of the Commission or any member of its staff designated in writing by a member of the Commission or by the Commission either generally or specially to require from any person such particulars and information as may be reasonably necessary in connexion with any investigation;
(b) to require any person by notice in writing under the hand of a member of the Commission to appear before it at a time and place specified in such notice and to produce to it all articles or documents in the possession or custody or under the control of any such person and which may be necessary in connexion with that investigation:Provided that—
(i) such notice shall contain the reasons why the presence of such person is required and why any such article or document should be produced;
(ii) when appearing and being examined before the Commission, such person may be assisted by a legal practitioner and shall be entitled to peruse or examine the articles and documents to refresh his memory;
(c) through a member of the Commission, to administer an oath to, or take an affirmation from, any person referred to in paragraph (b), or any person present at the place referred to in paragraph (b), irrespective of whether or not such person has been required under that paragraph to appear before it, and question him under such oath or affirmation in connexion with any matter which may be necessary in connexion with that investigation.
(2) A notice under subsection (1) shall not be effectively served unless it is delivered by—
(a) a member of the Commission;
(b) a member of the staff of the Commission;
(c) a police officer or any other person, authorized in that behalf by the Commission in relation to an investigation.
(3) Any person questioned under subsection (1) shall—
(a) be competent and compellable to answer all questions put to him regarding any fact or matter connected with the investigation;
(b) be competent and compellable to produce to the Commission any article or document in his possession or custody or under his control which may be necessary in connexion with that investigation.
(4) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law shall apply in relation to the questioning of a person under subsection (1).
(5) If it appears to the Commission during the course of an investigation that any person is being implicated in the matter being investigated, the Commission shall aford such person an opportunity to be heard in connexion therewith by way of the giving of evidence or the making of submissions and such person or his legal representative shall be entitled, through the Commission, to question other witnesses, determined by the Commission, who have appeared before the Commission pursuant to this section.
(6) The Commission may direct that any person or category of persons or all persons the presence of whom, in the opinion of the Commission, is not desirable shall not be present at the proceedings or any part thereof during, or in the course of, an investigation.
(7) The Commission may in its sole discretion conduct open or closed hearings during its investigation of any matter.
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