malawi

NOTES

Drafting of the Constitution

This Constitution was drafted by the Constitutional Subcommittee of the National Consultative Council (NCC) between January and May 1994. Parts were amended in plenary sessions of the NCC in April and May 1994.

The completed draft was approved by the NCC and subsequently enacted by Parliament sitting in an emergency session on 16 May 1994.

Application

The Constitution provisionally came into force on 18 May 1994. In accordance with the terms of Chapter XXIII there will be a one- year period during which it will be reviewed by the Constitution Committee, and amended or replaced in accordance with its terms.

The Current Version

This version of the constitution replaces the draft Constitution previously available on the Internet. This version was electronically scanned at the University of Cambridge and checked against the official version which appears in the Malawi Gazette. Queries may be addressed to jhb10@phx.cam.ac.uk .

Errors

While there should be few if any discrepancies between this version and that printed in the Malawi Gazette, no warranties can be made as to the complete accuracy of a text of this size.

A modest number of non-substantive errors in the original have been detected and the Solicitor General's Office is compiling a list of all such errors notified to it. All such errors have intentionally been left in this text in order to faithfully reproduce the version which appears in the Gazette. The Internet version will be amended when correcting legislation has been passed.

Communication

Observations and representations on matters of substance or form may be sent to the Solicitor General who will forward them to the Constitution Subcommittee. The address is:


Solicitor General

Ministry of Justice

Private Bag 333

Lilongwe 3

Malawi

Tel: -265-782411

Fax: -265-782176

Malawi Gazette

Copies of the Malawi Gazette containing the Constitution are inexpensive (K1.- each locally) and may be obtained from the Government Printer:


Box 37

Zomba

Malawi

Tel: -265-523155

Fax: -265-522301

Requests for copies may also be made to local Malawi High Commissions or Embassies.




(Published 16th May, 1994)



Act

No. 20 of 1994



I assent



H. Kamuzu Banda



President



16th May, 1994

ARRANGEMENT OF SECTIONS


Section

    1. Short title

    2. Repeal of the 1966 Constitution

    3. The Constitution of the Republic of Malawi

An Act to adopt and enact the Constitution of the Republic of Malawi ENACTED by the Parliament of Malawi as follows--

Short title
1. This Act may be cited as the Republic of Malawi (Constitution) Act, 1994.

Repeal of the 1966 Constitution
2. The Republic of Malawi (Constitution) Act, 1966, and the Constitution enacted thereunder and amended from time to time are hereby repealed.

The Constitution of the Republic of Malawi
3. The Constitution set out hereunder shall be the Constitution of the Republic of Malawi and which shall come into force in accordance with the provisions thereof.

CONSTITUTION OF THE REPUBLIC OF MALAWI

ARRANGEMENT OF SECTIONS

Section CHAPTER I THE REPUBLIC OF MALAWI 1. Malawi a sovereign state 2. The national flag, etc. 3. The national territory 4. Protection of the people of Malawi under this Constitution 5. Supremacy of this Constitution 6. Universal and equal suffrage 7. The separate status, functions and duty of the executive 8. The separate status, function and duty of the legislature 9. The separate status, function and duty of the judiciary

CHAPTER II APPLICATION AND INTERPRETATION 10. Application of this Constitution 11. Interpretation

CHAPTER III FUNDAMENTAL PRINCIPLES 12. Constitutional principles 13. Principles of national policy 14. Application of the principles of national policy

CHAPTER IV HUMAN RIGHTS 15. Protection of human rights and freedoms 16. The right to life 17. Genocide 18. Liberty 19. Human dignity and personal freedom 20. Equality 21. Privacy 22. Family and marriage 23. Rights of children 24. Rights of women 25. Education 26. Culture and language 27. Slavery, servitude and forced labour 28. Property 29. Economic activity 30. Right to development 31. Labour 32. Freedom of association 33. Religion and belief 34. Freedom of opinion 35. Freedom of expression 36. Freedom of the press 37. Access to information 38. Freedom of assembly 39. Freedom of movement and residence 40. Political rights 41. Access to justice and legal remedies 42. Arrest, detention and fair trial 43. Administrative justice 44. Limitations on rights 45. Derogation and public emergency 46. Enforcement

CHAPTER V CITIZENSHIP 47. Citizenship CHAPTER VI THE LEGISLATURE 48. Parliament 49. Definitions 50. Quorum 51. Qualifications of members of Parliament 52. Oath of allegiance 53. The Speaker 54. Casting vote 55. The Clerk 56. The right to regulate procedure 57. Money Bills 58. Subsidiary legislation 59. Sessions and sittings 60. Privileges and immunities 61. Member's interests 62. Composition of the National Assembly 63. Vacancies in the National Assembly 64. Recall of members 65. Crossing the floor 66. Functions and powers of the National Assembly 67. Dissolution of Parliament 68. Composition of the Senate 69. Vacancies in the Senate 70. Functions and powers of the Senate 71. Scrutiny by the Senate 72. Dissolution of the Senate 73. Presidential assent 74. The coming into force of laws

CHAPTER VII ELECTIONS 75. The Electoral Commission 76. Powers and functions 77. The franchise CHAPTER VIII THE EXECUTIVE 78. The President 79. The Vice-President 80. Election of the President and the Vice-President 81. Oath of office 82. Remuneration 83. Term of office 84. Death or resignation of the Vice-President 85. Vacancy of office of President and Vice-President 86. Removal from office 87. Incapacity 88. Responsibilities of the President 89. Powers and duties of the President 90. Confirmation of decisions, etc., of the President 91. Immunity 92. Cabinet 93. Government departments 94. Appointment of Ministers and Deputy Ministers 95. Confirmation of appointments of Ministers or Deputy Ministers 96. Duties and functions of the Cabinet 97. Ministerial accountability 98. The Attorney General 99. The Director of Public Prosecutions 100. Delegation of powers to prosecute 101. Appointment of the Director of Public Prosecutions 102. Removal of the Director of Public Prosecutions

CHAPTER IX THE JUDICATURE 103. The independence and jurisdiction of the courts and the judiciary 104. The Supreme Court 105. Composition of the Supreme Court of Appeal 106. Acting Justices of Appeal 107. Relief from duties 108. The High Court 109. Composition of the High Court 110. Subordinate courts 111. Appointment of the Judiciary 112. Qualification of Judicial officers 113. Vacancy 114. Remuneration 115. Judicial oath 116. The Judicial Service Commission 117. Composition 118. Powers of the Judicial Service Commission 119. Tenure of judges

CHAPTER X THE OMBUDSMAN 120. The Office of the Ombudsman 121. Independence of the Ombudsman 122. Appointment of the Ombudsman 123. Functions and powers 124. Powers of investigation 125. Privileges and immunities of the Ombudsman 126. Remedies 127. Reports of the Ombudsman 128. Removal from office

CHAPTER XI HUMAN RIGHTS COMMISSION 129. Establishment of the Human Rights Commission 130. Powers 131. Composition CHAPTER XII LAW COMMISSION 132. Establishment of the Law Commission 133. Composition 134. Removal of the Law Commissioner, etc. 135. Powers and functions of the Law Commission 136. Independence of the Law Commission

CHAPTER XIII NATIONAL COMPENSATION FUND 137. The National Compensation Tribunal 138. Exclusive original jurisdiction 139. Composition 140. Procedure 141. Protection of third party rights 142. Jurisdiction of ordinary courts 143. Power to waive statutory limitations 144. National Compensation Fund 145. Winding up of the National Compensation Fund CHAPTER XIV LOCAL GOVERNMENT 146. Functions of local government authorities 147. Composition of local government authorities 148. Jurisdiction of local government authorities 149. National Local Government Finance Committee, its establishment, powers and functions 150. Duty to provide adequate exercises for local government functions 151. Composition of the National Local Government Finance Committee

CHAPTER XV THE POLICE 152. The Malawi Police Force 153. Powers and functions of the Police 154. The Inspector General of Police 155. The Police Service Commission 156. Power to delegate 157. Composition 158. Political independence of the Malawi Police Force

CHAPTER XVI THE DEFENCE FORCES 159. The Defence Forces of Malawi 160. Constitutional position of the Defence Forces of Malawi 161. Responsibility for the Defence Forces of Malawi 162. The Defence and Security Committee of the National Assembly CHAPTER XVII PRISONS 163. The Malawi Prison Service 164. The Chief Commissioner for Prisons 165. Power to delegate 166. Appointment of the Chief Commissioner for Prisons 167. The Prison Service Commission 168. Composition of the Prison Service Commission 169. The Inspectorate of Prisons 170. Composition of the Inspectorate of Prisons

CHAPTER XVIII THE STATE REVENUE 171. Revenue 172. The Consolidated Fund 173. Withdrawal of money from the Consolidated Fund 174. Expenditure charged on the Consolidated Fund 175. Annual estimates 176. Appropriation Bills 177. Supplementary appropriations 178. Authorization of expenditure in advance of appropriation 179. Contingency Fund 180. Raising of loans by the Government 181. Special funds and trust moneys 182. The Development Fund 183. Protected expenditure 184. Auditor General

CHAPTER XIX THE RESERVE BANK OF MALAWI 185. The Reserve Bank of Malawi CHAPTER XX CIVIL SERVICE 186. The Civil Service Commission 187. Powers of the Civil Service Commission 188. Delegation 189. Offices to which this Chapter does not apply 190. The appointment of Diplomatic staff 191. Appointment of members of the Civil Service Commission 192. Vacancy 193. Independence of the Civil Service 194. Appointments of boards, etc., and appointment and removal of public officers

CHAPTER XXI AMENDMENT OF THIS CONSTITUTION 195. Power to amend 196. Restrictions on amendments 197. Amendments by Parliament CHAPTER XXII TRANSITIONAL PROVISIONS 198. Republic, etc. to be constituted in accordance with this Constitution 199. Status of this Constitution 100. Saving of laws in force 201. Elections to the National Assembly 202. Elections to the office of President 203. Saving of judicial power 204. Pending legal actions 205. Judgements and sentences pending execution 206. Existing appointments 207. Vesting of lands, etc., in the Republic 208. Savings of rights of the Government in property 209. Continuation of rights of persons in property 210. Constitutional position pending establishment of the Senate 211. International law

CHAPTER XXIII MISCELLANEOUS 212. Commencement of this Constitution 213. Short title of this Constitution 214. Definition

Schedule CONSTITUTION OF THE REPUBLIC OF MALAWI

THE PEOPLE OF MALAWI--

recognizing the sanctity of human life and the unity of all mankind;

guided by their private consciences and collective wisdom;

seeking to guarantee the welfare and development of all the people of Malawi, national harmony and peaceful international relations;

desirous of creating a constitutional order in the Republic of Malawi based on the need for an open, democratic and accountable government:

HEREBY adopt the following as the Constitution of the Republic of Malawi.

CHAPTER I

THE REPUBLIC OF MALAWI

Malawi a sovereign state

1. The Republic of Malawi is a sovereign State with rights and obligations under the Law of Nations.

The national flag, etc.

2. Malawi shall have a National Flag, a National Coat of Arms, a National Anthem and a Public Seal.

The national territory

3. The national territory of the Republic of Malawi shall consist of all the territory, including airspace, waters and islands which comprised the territory of Malawi before the commencement of this Constitution, and shall include any territory lawfully acquired thereafter by adjustment of boundaries or otherwise.

Protection of the people of Malawi under this Constitution

4. This Constitution shall bind all executive, legislative and judicial organs of the State at all levels of Government and all the peoples of Malawi are entitled to the equal protection of this Constitution, and laws made under it.

Supremacy of this Constitution

5. Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.

Universal and equal suffrage

6. Save as otherwise provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament.

The separate status, function and duty of the executive

7. The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution.

The separate status, function and duty of the legislature

8. The legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the values explicit or implicit in this Constitution.

The separate status, function and duty of the judiciary

9. The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.

CHAPTER II

APPLICATION AND INTERPRETATION

Application of this Constitution

10.--(1) In the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority.

(2) In the application and formulation of any Act of Parliament and in the application and development of the common law and customary law, the relevant organs of State shall have due regard to the principles and provisions of this Constitution.

Interpretation

11.--(1) Appropriate principles of interpretation of this Constitution shall be developed and employed by the courts to reflect the unique character and supreme status of this Constitution.

(2) In interpreting the provisions of this Constitution a court of law shall--

(a) promote the values which underlie an open and democratic society;

(b) take full account of the provisions of Chapter III and Chapter IV; and

(3) Where a court of law declares an act of executive or a law to be invalid, that court may apply such interpretation of that act or law as is consistent with this Constitution.

(4) Any law that ousts or purports to oust the jurisdiction of the courts to entertain matters pertaining to this Constitution shall be invalid.

CHAPTER III

FUNDAMENTAL PRINCIPLES

Constitutional principles

12. This Constitution is founded upon the following underlying principles--

(i) All legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests.

(ii) All persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi.

(iii) The authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.

(iv) The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.

(v) As all persons have equal status before the law, the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society.

(vi) All institutions and persons shall observe and uphold the Constitution and the rule of law and no institution or person shall stand above the law.

Principles of national policy

13. The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals--

(a) Gender Equality To obtain gender equality for women with men through--

(i) full participation of women in all spheres of Malawians society on the basis of equality with men;

(ii) the implementation of the principles of non-discrimination and such other measures as may be required; and

(iii) the implementation of policies to address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation and rights to property.

(b) Nutrition To achieve adequate nutrition for all in order to promote good health and self-sufficiency.

To provide adequate health care, commensurate with the health needs of Malawian society and international standards of health care.

(d) The Environment

To manage the environment responsibly in order to--

(i) prevent the degradation of the environment;

(ii) provide a healthy living and working environment for the people of Malawi;

(iii) accord full recognition to the rights of future generations by means of environmental protection and the sustainable development of natural resources; and

(iv) conserve and enhance the biological diversity of Malawi.

(e) Rural Life

To enhance the quality of life in rural communities and to recognize rural standards of living as a key indicator of the success of Government policies.

(f) Education

To provide adequate resources to the education sector and devise programmes in order to--

(i) eliminate illiteracy in Malawi;

(ii) make primary education compulsory and free to all citizens of Malawi;

(iii) offer greater access to higher learning and continuing education; and

(iv) promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance.

(g) The Disabled

To support the disabled through--

(i) greater access to public places;

(ii) fair opportunities in employment; and

(iii) the fullest possible participation in all spheres of Malawian society.

(h) Children

To encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.

(i) The Family

To recognize and protect the family as a fundamental and vital social unit.

(j) The Elderly

To respect and support the elderly through the provision of community services and to encourage participation in the life of the community.

(k) International Relations

To govern in accordance with the law of nations and the rule law and actively support the further development thereof in regional and international affairs.

(l) Peaceful Settlement of Disputes To strive to adopt mechanisms by which differences are settled through negotiation, good offices, mediation, conciliation and arbitration.

(m) Administration of Justice To promote law and order and respect for society through civic education, by honest practices in Government, adequate resourcing, and the humane application and enforcement of laws and policing standards.

(n) Economic Management To achieve a sensible balance between the creation and distribution of wealth through the nurturing of a market economy and long- term investment in health, education, economic and social development programmes.

(o) Public Trust and Good Governance

To introduce measures which will guarantee accountability transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions.

Application of the principles of national policy

14. The principles of national policy contained in this Chapter shall be directory in nature but courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.

CHAPTER IV

HUMAN RIGHTS

Protection of human rights and freedoms

15.--(1) The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature and judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.

(2) Any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievance in respect of those rights.

The right to life

16. Every person has the right to life and no person shall be arbitrarily deprived of his or her life:

Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.

Genocide

17. Acts of genocide are prohibited and shall be prevented and punished.

Liberty

18. Every person has the right to personal liberty.

Human dignity and personal freedoms*

19.--(1) The dignity of all persons shall be inviolable.

(2) In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.

(3) No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.

(4) No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State.

(5) No person shall be subjected to medical or scientific experimentation without his or her consent.

(6) Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be--

(a) detained without trial;

(b) detained solely by reason of his or her political or other opinions; or

Equality

20.--(1) Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.

(2) Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.

Privacy

21.--(1) Every person shall have the right to personal privacy, which shall include the right not to be subject to--

(a) searches of his or her person, home or property;

(b) the seizure of private possessions; or

Family and marriage

22.--(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.

(3) All men and women have the right to marry and found a family.

(4) No person shall be forced to enter into marriage.

(5) Sub-sections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.

(6) No person over the age of eighteen years shall be prevented from entering into marriage.

(7) For persons between the age of fifteen and eighteen years a marriage shall only be entered into with the consent of their parents or guardians.

(8) The State shall actually discourage marriage between persons where either of them is under the age of fifteen years.

Rights of children

23.--(1) All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law.

(2) All children shall have the right to a given name and a family name and the right to a nationality.

(3) Children have the right to know, and to be raised by, their parents.

(4) Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to--

(a) be hazardous;

(b) interfere with their education; or

(5) For purposes of this section, children shall be persons under sixteen years of age.

Rights of women

24.--(1) Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right--

(a) to be accorded the same rights as men in civil law, including equal capacity--

(i) to enter into contracts;

(ii) to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;

(iii) to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and

(iv) to acquire and retain citizenship and nationality.

(b) on the dissolution of marriage--

(i) to a fair disposition of property that is held jointly with a husband; and

(ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.

(2) Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as--

(a) sexual abuse, harassment and violence;

(b) discrimination in work, business and public affairs; and

Education

25.--(1) All persons are entitled to education.

(2) Primary education shall consist of at least five years of education.

(3) Private schools and other private institutions of higher learning shall be permissible, provided that--

(a) such schools or institutions are registered with a State department in accordance with the law;

(b) the standards maintained by such schools or institutions are not inferior to official standards in State schools.

Culture and language

26. Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

Slavery, servitude and forced labour 27.--(1) No person shall be held in slavery or servitude.

(2) Slavery and the slave trade are prohibited.

(3) No person shall be subject to forced labour.

(4) No person shall be subject to tied labour that amounts to servitude.

Property

28.--(1) Every person shall be able to acquire property alone or in association with others.

(2) No person shall be arbitrarily deprived of property.

Economic activity

29. Every person shall have the right freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi.

Right to development

30.--(1) All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and the disabled in particular shall be given special consideration in the application of this right.

(2) The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.

(3) The State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities.

(4) The State has a responsibility to respect the right to development and to justify its policies in accordance with this responsibility.

Labour

31.--(1) Every person shall have the right to fair and safe labour practices and to fair remuneration.

(2) All persons shall have the right to form and join trade unions or not to form or join trade unions.

(3) Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.

(4) The State shall take measures to ensure the right to withdraw labour.

Freedom of association

32.-(1) Every person shall have the right to freedom of association, which shall include the freedom to form associations.

(2) No person may be compelled to belong to an association.

Freedom of conscience

33. Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.

Freedom of opinion

34. Every person shall have the right to freedom of opinion, including the right to hold opinions without interference to hold receive and impart opinions.

Freedom of expression 35. Every person shall have the right to freedom of expression.

Freedom of the press

36. The press shall have the right to report and publish I freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

Access to information

37. Subject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.

Freedom of assembly

38. Every person shall have the right to assemble and demonstrate with others peacefully and unarmed.

Freedom of movement and residence

39.--(1) Every person shall have the right of freedom of movement and residence within the borders of Malawi.

(2) Every person shall have the right to leave the Republic and to return to it.

Political rights

40.--(1) Subject to this Constitution, every person shall have the right--

(a) to form, to join, to participate in the activities of, and to recruit members for, a political party;

(b) to campaign for a political party or cause;

(c) to participate in peaceful political activity intended to influence the composition and policies of the Government; and

(d) freely to make political choices.

(2) The State shall, where necessary, provide funds so as to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency.

(3) Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for public office.

Access to justice and legal remedies

41.--(1) Every person shall have a right to recognition as a person before the law.

(2) Every person shall have access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues.

(3) Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him by this Constitution or any other law.

Arrest, detention and fair trial

42.--(1) Every person who is detained, including every sentenced prisoner, shall have the right--

(a) to be informed of the reason for his or her detention promptly, and in a language which he or she understands;

(b) to be detained under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;

(c) to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State;

(d) to be given the means and opportunity to communicate with, and to be visited by, his or her spouse, partner, next-of-kin, relative, religion counsellor and a medical practitioner of his or her choice;

(e) to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and

(f) to be released if such detention is unlawful.

(2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right--

(a) promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement;

(b) as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be released;

(d) save in exceptional circumstances, to be segregated from convicted persons and to be subject to separate treatment appropriate to his or her status as an unconvicted person;

(e) to be released from detention, with or without bail unless the interests of justice require otherwise;

(f) as an accused person, to a fair trial, which shall include the right--

(i) to public trial before an independent and impartial court of law within a reasonable time after having been charged;

(ii) to be informed with sufficient particularity of the charge;

(iii) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;

(iv) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;

(v) to be represented by a legal practitioner of his or her choice or, where it is required in the interests of justice, to be provided with legal representation at the expense of the State, and to be informed of these rights;

(vi) not to be convicted of an offence in respect of any act or omission which was not an offence at the time when the act was committed or omitted to be done, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;

(vii) not to be prosecuted again for a criminal act or omission of which he or she has previously been convicted or acquitted;

(viii) to have recourse by way of appeal or review to a higher court than the court of first instance;

(ix) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands; and

(x) to be sentenced within a reasonable time after conviction;

(g) in addition, if that person is a child, to treatment consistent with the special needs of children, which shall include the right--

(i) not to be sentenced to life imprisonment without possibility of release;

(ii) to be imprisoned only as a last resort and for the shortest period of time;

(iii) to be separated from adults when imprisoned, unless it is considered to be in his or her best interest not to do so, and to maintain contact with his or her family through correspondence and visits;

(iv) to be treated in a manner consistent with the promotion of his or her sense of dignity and worth, which reinforces respect for the rights and freedoms of others;

(v) to be treated in a manner which takes into account his or her age and the desirability of promoting his or her reintegration into society to assume a constructive role; and

(vi) to be dealt with in a form of legal proceedings that reflects the vulnerability of children while fully respecting human rights and legal safeguards.

Administrative justice

43. Every person shall have the right to--

(a) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and

(b) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known.

Limitations on rights

44.--(1) There shall be no derogation, restrictions or limitation with regard to--

(a) the right to life;

(b) the prohibition of torture and cruel, inhuman or degrading treatment or punishment;

(d) the prohibition of slavery, the slave trade and slave-like practices;

(e) the prohibition of imprisonment for failure to meet contractual obligations;

(f) the prohibition on retrospective criminalization and the retrospective imposition of greater penalties for criminal acts;

(g) the right to equality and recognition before the law;

(h) the right to freedom of conscience, belief, thought and religion and to academic freedom; or

(i) the right to habeas corpus.

(2) Without prejudice to subsection (1), no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.

(3) Laws prescribing restrictions or limitations shall not negate the essential content of the right or freedom in question, shall be of general application.

(4) Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law.

(5) Wherever it is stated in this Constitution that a person has the right to the services of a legal practitioner or medical practitioner of his or her own choice, that right shall be without limitation, save where the State is obliged to provide such services of a legal practitioner or medical practitioner, in which case an Act of Parliament may prescribe that the choice of the legal practitioner or medical practitioner should be limited to those in Government service or employment.

Derogation and public emergency

45.--(1) No derogation from rights contained in this Chapter shall be permissible save to the extent provided for by this section and no such derogation shall be made unless there has been a declaration of a state of emergency within the meaning of this section.

(2) The President may declare a state of emergency--

(a) only to the extent that it is provided for in this section;

(b) only with the approval of the Defence and Security Committee of the National Assembly;

(d) only with regard to the specific location where that emergency exists, and that any declaration of a state of emergency shall be publicly announced; and

(e) only after the state of emergency has been publicly announced.

(3) Derogation shall only be permissible during a state of emergency--

(a) with respect to freedom of expression, freedom of information, freedom of movement, freedom of assembly and rights under section 19 (6) (a) and section 42 (2) (b);

(b) to the extent that such derogation is not inconsistent with the obligations of Malawi under International Law; and

(i) in the case of war or threat of war, it is strictly required to prevent the lives of defensive combatants and legitimate military objectives from being placed in direct jeopardy; or

(ii) in the case of a widespread natural disaster, it is strictly required for the protection and relief of those people in the disaster area.

(4) The declaration of a state of emergency and any action taken in consequence thereof shall be in force for a period of not more than twenty-one days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members.

(5) The High Court shall be competent to hear applications challenging the validity of a declaration of a state of emergency, any extension thereof, and any action taken, including any regulation enacted, under such declaration.

(6) Where a person is detained under a state of emergency such detention shall be subject to the following conditions--

(a) an adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible and in any case not later than forty-eight hours of detention;

(b) the name of every detainee and a reference to the measures in terms of which he or she is being detained shall be published in the Gazette within five days of his or her detention;

(i) the detention of a person shall as soon as it is reasonably possible but not later than ten days after his or her detention, be reviewed by a court, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order;

(ii) a detainee shall at any stage after the expiry of a period of five days after a review under of subparagraph (i) be entitled to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order;

(d) the State shall for the purpose of a review referred to in paragraph (c) submit written reasons to justify the detention or further detention of the detainee to the court, and shall furnish the detainee with such reasons not later than two days before the review.

(7) If a court finds the grounds for the detention of a person to be unjustified or illegal it shall order his or her release and that person shall not be detained again on the same grounds unless the State shows good cause to a court prior to such re-detention.

(8) Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.

Enforcement

46.--(1) Save in so far as it may be authorized to do so by this Constitution, the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of Government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.

(2) Any person who claims that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled--

(a) to make application to a competent court to enforce or protect such a right or freedom; and

(b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.

(3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated.

(4) A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.

(5) The law shall prescribe criminal penalties for violations of those non-derogable rights listed in subsection 44 (1).

CHAPTER V

CITIZENSHIP

Citizenship

47.--(1) Every person who, immediately before the appointed day, was a citizen of Malawi under any existing law shall continue to be a citizen of Malawi after the appointed day.

(2) An Act of Parliament may make provision for the acquisition or loss of citizenship of Malawi by any person after the appointed day, but citizenship shall not be arbitrarily denied or deprived.

(3) In this section, the expression--

(a) "acquisition of citizenship" includes acquisition by birth, descent, marriage, registration, naturalisation or any other means prescribed by an Act of Parliament; and

(b) "loss of citizenship" includes loss by deprivation, renunciation or any other means prescribed by an Act of Parliament.

CHAPTER VI

T HE LEGISLATURE

Parliament

48.--(1) All legislative powers of the Republic shall be vested in Parliament which shall have the powers and responsibilities set out in this Constitution.

(2) An Act of Parliament shall have primacy over other forms of law, but shall be subject to the Constitution.

(3) Any question proposed for decision by the National Assembly or by the Senate shall be decided by a majority of the votes of the members present and voting, unless this Constitution or any other Act of Parliament otherwise provides.

Definitions

49.--(1) For the purposes of this Constitution, unless otherwise provided, "Parliament" consists of the National Assembly, the Senate and the President as Head of State.

(2) Unless otherwise provided in this Constitution, an "Act of Parliament" shall be a Bill which has--

(i) been laid before and passed by a majority of the National Assembly;

(ii) been laid before and passed by a majority of the Senate; and

(iii) been assented to by the President in accordance with this Chapter.

(3) "Chamber" means either the Chamber of the National Assembly or of the Senate.

Quorum

50.--(1) The quorum of each Chamber shall be formed by the presence at the beginning of any sitting of at least two thirds of the members of that Chamber entitled to vote, not including the Speaker or a presiding member.

(2) If it is brought to the attention of the Speaker or person acting as Speaker by any member of the Chamber over which he or she is presiding that there are less than the number of members prescribed by the Standing Orders of that Chamber present and after such interval as may be prescribed in the rules of procedure of the Chamber, the Speaker or person acting as Speaker ascertains that the number of members present is still less than that prescribed by the Standing Orders Chamber, he or she shall adjourn the Chamber.

Qualifications of members of Parliament

51.--(1) A person shall not be qualified to be nominated or elected as a member of the Parliament unless that person--

(a) is a citizen of the Republic who at the time of nomination has attained--

(i) the age of twenty-one years, in the case of the National Assembly; and

(ii) the age of thirty-five, years in the case of the Senate.

(b) is able to speak and to read the English language well enough to take an active part in the proceedings of Parliament; and

(2) Notwithstanding subsection (1), no person shall be qualified to be nominated or elected as a member of Parliament who--

(a) owes allegiance to a foreign country;

(b) is, under any law in force in the Republic, adjudged or otherwise declared to be mentally incompetent;

(d) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in the Republic;

(e) holds, or acts, in any public office or appointment, except where this Constitution provides that a person shall not be disqualified from standing for election solely on account of holding that or appointment or where that person resigns from that office in order to stand;

(f) belongs to, and is serving in the Defence Forces of Malawi or the Malawi Police Force; and

(g) has been convicted by any court of any violation of any law relating to election of the President or election of the members of Parliament under any Act of Parliament.

Oath of allegiance

52. Every officer and member of Parliament, before taking his or her seat, or assuming the duties of his or her office shall take and subscribe before the Chief Justice in the Chamber in which he or she shall sit--

(a) the oath of allegiance in the form prescribed by law; and

(b) such other oaths for the due performance of their respective offices as may be prescribed by law.

The Speaker

53.--(1) There shall be a Speaker of the National Assembly and a Speaker of the Senate who shall be elected by majority vote of the Chamber in which he or she sits at the first sitting after any dissolution of that Chamber.

(2) The members of each Chamber shall elect one or more persons to be Deputy Speaker or Deputy Speakers at the first sitting after a general election in the case of the National Assembly or after a local election in the case of the Senate and after any event which results in a vacancy in the office of any Deputy Speaker.

(3) The office of Speaker shall become vacant--

(a) on the death or resignation of the Speaker;

(b) if the Speaker ceases to be a member of the Chamber in which he or she sits;

(d) if the Chamber in which the Speaker presides, by a resolution supported by the votes of not less than two-thirds of all the members of that Chamber, resolves that the Speaker be removed from office:

Provided that the Speaker shall have the right to be heard by the Chamber on his or her own motion on any matter relating to his or her removal from office.

(4) The Speaker of each Chamber, or in the absence of the Speaker, such Deputy Speaker of that Chamber as the Speaker has nominated, shall preside at every sitting of that Chamber:

Provided that in the absence of the Speaker and of every Deputy Speaker, the Chamber may elect one among its members to act a Speaker for that session or that sitting.

(5) Any person who is elected Speaker, or any person acting as Speaker, shall discharge his or her functions and duties and exercise such powers as he or she has by virtue of that office independent of the direction or interference of any body or authority, save as accords with the express will and the Standing Orders of the Chamber in which he or she sits.

(6) Notwithstanding that the Speaker or a person acting as Speaker has been elected as a member of a political party to the Chamber in which he or she sits he or she shall not be subject to the control, discipline, authority or direction of that political party or any other political party in the discharge of the functions and duties of that office and in the exercise of the powers of that office.

(7) The Speaker may, where there is a matter which is the subject of debate in the Chamber over which he or she is presiding and which is a matter solely pertaining to his or her constituency, temporarily vacate the Speaker's seat and participate in that debate and exercise a deliberative vote where there is voting on that matter.

Casting vote

54.--(1) Subject to subsection 53 (7) the Speaker of a Chamber shall not have a deliberative vote, but if the votes of the Chamber over which that Speaker is presiding are equally divided upon any question, he or she shall exercise the casting vote.

(2) Any member of the National Assembly or Senate, other than the Speaker or Deputy Speaker, shall, when presiding in the Chamber of which he is a member, retain his or her original deliberative vote as a member and shall also have and exercise a casting vote if the votes of that Chamber are equally divided.

The Clerk

55. There shall be a Clerk to the National Assembly and a Clerk to the Senate who shall be public officers and shall assist the Speaker of the Chamber to which that Clerk is appointed and perform such other functions and duties as the Speaker may direct.

The right to regulate procedure 56.--(1) Subject to this Constitution, the National Assembly, or the Senate, may by Standing Order or otherwise regulate its own procedure.

(2) Save as otherwise provided in this Constitution, the National Assembly and the Senate may act unless more than two-thirds of all their seats are vacant.

(3) The presence or participation of any person not entitled to be present or to participate in the proceedings of each Chamber shall not invalidate those proceedings.

(4) Each Chamber shall provide access to the press and members of the public, except where a motion is passed with reasons prohibiting public access in the national interest.

(5) The proceedings of Parliament shall be conducted in the English language and such other languages as each Chamber may prescribe in respect of its own proceedings.

(6) Parliament may establish any committees of its members and may form joint committees for the scrutiny of legislation and performance of other functions, except voting on motions and Bills.

(7) In addition to any committee appointed under subsection (6) there shall be a Public Appointments Committee and a Legal Affairs Committee of the National Assembly which shall each--

(a) be appointed by the National Assembly with proportionate representation from all parties represented in the National Assembly;

(b) appointed within thirty days of the first sitting of the National Assembly after a general election and thereafter annually; and

Money Bills

57.--(1) Except upon the recommendation of the Minister responsible for Finance, signified in writing, the National Assembly shall not--

(a) proceed upon any Bill or any amendment to a Bill that, in the opinion of the person presiding, makes provision for any of the following purposes--

(i) for the imposition of tax or the alteration of tax;

(ii) for the imposition of any charge upon the Consolidated Fund, or the alteration of any such charge;

(iii) for the payment, issue or withdrawal from the Consolidated Fund of any moneys not charged thereon, or any increase in the amount of such payment, issue or withdrawal; or

(iv) for the composition or remission of any debt due to the Government;

(b) proceed upon any motion or any amendment to a motion the effect of which, in the opinion of the person presiding, would be to make provision for any of the purposes specified in subsection (a); or

(c) receive any petition that, in the opinion of the person presiding, requests that provision be made for any of the purposes.

(2) The Senate shall not have the power to debate or vote upon any motion or receive any Bill to which this section applies except with the recommendation of the Minister responsible for Finance, signified in writing, and may not in any case amend or reject such a motion or Bill.

Subsidiary legislation

58.--(1) Parliament may, with respect to any particular Act of Parliament, delegate to the executive or to the judiciary the power to make subsidiary legislation within the specification and for the purposes laid out in that Act and any subsidiary legislation so made shall be laid before Parliament in accordance with its Standing Orders.

(2) Notwithstanding subsection (1), Parliament shall not have the power to delegate any legislative powers which would substantially and significantly affect the fundamental rights and freedoms recognized by this Constitution.

Sessions and sittings

59.--(1) Every session of the National Assembly and of the Senate shall be held at such place within Malawi and shall commence at such time as each Speaker, in consultation with the President, may appoint with respect to the Chamber in which that Speaker presides and the sittings of each Chamber after the commencement of that session shall be held at such times and on such days as that Chamber shall appoint:

Provided that-- (a) the President, in consultation with the Speaker of the relevant Chamber, may summon, on extraordinary occasions, a meeting of the National Assembly or the Senate; and

(b) the President may, in consultation with the Speaker of the relevant Chamber, prorogue the National Assembly or the Senate.

(2) There shall be at least two sittings of the National Assembly and of the Senate every year.

Privileges and immunities

60.--(1) The Speaker, every Deputy Speaker, every member of the National Assembly and every member of the Senate shall, except in cases of treason, be privileged from arrest while going to, returning from, or while in the precincts of the National Assembly or the Senate, and shall not, in respect of any utterance that forms part of the proceedings in the National Assembly or the Senate, be amenable to any other action or proceedings in any court, tribunal or body other than Parliament.

(2) All official reports and publications of Parliament or of its proceedings or of the proceedings of any committee of the Parliament shall be privileged and utterances made in the Parliament or in any committee thereof wherever published shall be protected by absolute privilege.

(3) The National Assembly and the Senate shall each have the power to conduct investigations and exercise the power to subpoena the attendance of any person or office holder whosoever as required in connexion with the prudent exercise of the respective functions of each Chamber.

Member's interests

61.--(1) A member of the Parliament, where he or she has a direct or indirect material interest in a matter being discussed by the Chamber of which he or she is a member, shall--

(a) disclose such interest to that Chamber; and

(b) not be entitled to vote on that matter without leave of that Chamber.

(2) Where a member of Parliament fails to disclose a material interest in accordance with subsection (1) that member shall be guilty of contempt of the Chamber of which he or she is a member.

Composition of the National Assembly

62.--(1) The National Assembly shall consist of such number of seats, representing every constituency in Malawi, as shall be determined by the Electoral Commission.

(2) Each constituency shall freely elect any person, subject to this Constitution and an Act of Parliament, to represent it as a member of the National Assembly in such manner as may be prescribed by this Constitution or an Act of Parliament.

Vacancies in the National Assembly

63.--(1) The seat of a member of the National Assembly shall become vacant--

(a) if the National Assembly has been dissolved;

(b) if the member dies or resigns his or her seat;

(d) if the member assumes the office of President or Vice- President, or becomes a member of the Senate;

(e) if any circumstances arise that, if he or she were not a member of the National Assembly, would cause that member to be disqualified for election under this Constitution or any other Act of Parliament;

(f) if the National Assembly declares a member's seat vacant in accordance with such Standing Orders as may permit or prescribe the removal of a member for good and sufficient reason provided that they accord with the principles of natural justice; or

(g) if a member is subject to recall by his or her constituency in accordance with the provisions of this Constitution or of an Act of Parliament.

(2) The Speaker of the National Assembly shall give notice in the Gazette in the event that the seat of any member of the Assembly shall become vacant under this section:

Provided that--

(a) Parliament shall make provision for holding by-elections to fill any vacancy that shall occur;

(b) any by-election to fill any vacancy that occurs shall be held as expeditiously as possible, and in no event later than sixty days after the seat of any member of the National Assembly becomes vacant; and

(c) any member elected at a by-election shall serve until such time as his or her seat becomes vacant in accordance with subsection (1).

(3) The Speaker may, upon a motion of the National Assembly, postpone the declaration of a vacant seat for such period as that motion prescribes so as to permit any member to appeal to a court or other body to which an appeal lies against a decision which would require that member to vacate his or her seat in accordance with this section.

Recall of members

64.--(1) Every member of the National Assembly shall be liable to be recalled by his or her constituency in accordance with this section.

(2) A member of the National Assembly shall be subject to recall by his or her constituency where a petition has been upheld by the Electoral Commission, where the petitioner--

(a) is a registered voter in the constituency that the member being recalled has been elected to represent;

(b) has proved, on a balance of probabilities, that there is a sufficient proportion of the electorate within that constituency, being not less than half the total of registered voters, who desire that the seat representing that constituency should be contested in a by-election.

(3) Where there has been a successful petition of recall in accordance with subsection (1), the decision of the Electoral Commission shall be notified to the Speaker of the National Assembly who shall, on such notification, declare the seat vacant and a by-election shall be announced.

Crossing the floor

65.--(1) The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party and has joined another political party represented in the National Assembly.

(2) Notwithstanding subsection (1), all members of all parties shall have the absolute right to exercise a free vote in any and all proceedings of the National Assembly, and a member shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the National Assembly, of which he or she is a member.

Functions and powers of the National Assembly

66.--(1) The National Assembly shall be a directly elected Chamber the primary purpose of which shall be legislative and which shall have power, subject to this Constitution, to--

(a) receive, amend, accept or reject Government Bills and Private Bills;

(b) initiate Private Members Bills on the motion of any member and amend, accept or reject all Private Member's Bills;

(d) debate and vote motions in relation to any matter including motions to indict and convict the President or Vice-President by impeachment;

(e) exercise such other functions and powers as are conferred on it by this Constitution; and

(f) take all actions incidental to and necessary for the proper exercise of its functions.

(2) For the purposes of this Constitution--

(a) a Government Bill shall be a Bill promulgated by the Government and introduced to Parliament on behalf of the Government;

(b) a Private Bill shall be--

(i) promulgated by an agency that is not part of the Government; and

(ii) introduced to Parliament on behalf of that agency where that agency is mandated by an Act of Parliament so to do;

(i) promulgated by a member of Parliament; and

(ii) introduced by that member in the Chamber of which he or she is a member in accordance with the procedure of that Chamber.

Dissolution of Parliament

67.--(1) The National Assembly shall last for five years from the date of its swearing in and then shall stand dissolved.

(2) Whenever the National Assembly is dissolved a general election of members of the National Assembly shall be held within sixty days of the date of the dissolution and the date of a session of the National Assembly shall be appointed by the President to commence within forty-five days of the date appointed by the Electoral Commission as the polling day for the election or, if more than one polling day is appointed, within forty-five days of the last polling day.

Composition of the Senate

68.--(1) The Senate shall consist of eighty members as follows--

(a) one Senator from each District, registered as a voter in that District and elected by the District Council of that District in secret ballot within thirty days of each local government election;

(b) one Senator from each District, being a Chief registered as a voter in that District and elected by a caucus of all the Chiefs of that District in secret ballot within thirty days of each local government election;

(c) thirty-two other Senators who shall be elected by a two-thirds majority of sitting members of the Senate on the basis of nominations by the Nominations Committee provided for in subsection (2) from all of the following sectors--

(i) interest groups, who shall include representatives from women's organizations, the disabled and from health, education, farming and business sectors, and from trade unions;

(ii) society, who shall be such persons as are generally recognized for their outstanding service to the public or contribution to the social, cultural, or technological development of the nation; and

(iii) religion, who shall include representatives of the major religious faiths in Malawi.

(2) There shall be a Nominations Committee of the Senate which shall be formed within forty-five days of each local government election for the purpose of nominating the representatives referred to in subsection (1) (c) and which shall consist of the Speaker of the National Assembly, the Ombudsman, and seven members, being Senators elected under subsections (1) (a) or (b), appointed by the National Assembly on a motion by the Speaker of the National Assembly.

(3) A Senator may be elected or nominated for an indefinite number of subsequent terms, unless otherwise disqualified or removed.

(4) The Nominations Committee shall endeavour to ensure, when considering nominations, that the Senate is proportionally representative of the various groups in Malawian society and therefore shall seek to ensure, so far as it is possible, that one-half of the members of the Senate are women.

Vacancies in the Senate

69.--(1) The seat of a member of the Senate shall become vacant--

(a) if the Senate has been dissolved;

(b) if a member dies or resigns his or her seat;

(d) if a member assumes the office of President or Vice-President, Minister or Deputy Minister or becomes a member of the National Assembly;

(e) if any circumstances arise that, if he or she were not a member of the Senate, would cause that member to be disqualified for nomination or election under this Constitution or an Act of Parliament; or

(f) if the Senate declares a member's seat vacant in accordance with such rules and Standing Orders as may permit or provide for the removal of a member for good and sufficient reason provided that they accord with the principles of natural justice.

(2) The Speaker of the Senate shall give notice to the Electoral Commission and in the Gazette in the event that the seat of any member of the Senate becomes vacant under this section.

(3) Where the seat of a member of the Senate is declared vacant by virtue of this section--

(a) if that member was elected by a District Council, then the Electoral Commission shall notify the Council of that District which elected that member to declare an election within thirty days of the seat becoming vacant;

(b) if that member was elected by Chiefs, then the Speaker of the Senate shall notify the Chiefs of the District from where that member was elected so as to convene the relevant caucus of Chiefs for the election of another member;

(c) if that member is a sector representative, then the Speaker of the Senate shall convene the Nominations Committee of the Senate which shall put forward nominations for appointment to the Senate.

Functions and powers of the Senate

70. The Senate shall be an indirectly elected chamber the primary purpose of which shall be deliberative and which shall have power, subject to this Constitution, to--

(a) receive, scrutinize and amend Bills from the National Assembly;

(b) vote motions to confirm or remit Bills passed by the National Assembly;

(c) debate any issue on its own motion, initiate Private Member's Bills and vote motions in respect of any matter, including motions to indict or convict the President or Vice-President by impeachment;

(d) exercise such other functions and powers as are conferred on it by this Constitution;

(e) carry out such other functions as may be delegated to it by an Act of Parliament; and

(f) take all actions incidental to and necessary for the proper exercise of its functions.

Scrutiny by the Senate

71.--(1) All Bills shall be laid before the Senate.

(2) Any member of the Senate may, in respect of a Bill laid before the Senate--

(a) within fourteen days of that Bill being laid, raise a motion to debate that Bill in full readings; or

(b) after fourteen days, but before the lapse of forty days, raise a motion to remit the Bill to the National Assembly.

(3) Any Bill laid before the Senate which has not been the subject of a motion to debate within the meaning of this section shall after the lapse of forty days, be presented for assent by the President.

(4) Where a Bill is debated under subsection (2) (a), it shall be passed back to the Speaker of the National Assembly who shall certify that it is--

(a) without amendment, in which case the Speaker shall present it for assent by the President; or

(b) amended, in which case the Bill shall be laid before the National Assembly for fourteen days, provided that if no motion to debate the Bill in full is raised by any member of the National Assembly within that time it shall be presented in amended form for assent by the President.

(5) Where a Bill has been remitted by the Senate by virtue of a majority vote in favour of a motion under subsection (2) (b)--

(a) the Senate shall give written reasons for that remittance; and

(b) the Speaker of the National Assembly shall table the Bill which may be further debated and amended, and if passed by a majority of all the members of the National Assembly, may be presented for assent by the President.

(6) Where a Private Member's Bill has been initiated and passed by the Senate it shall be sent to the Speaker of the National Assembly who shall table that Bill which may be further debated and amended and, if passed by a majority of the National Assembly, the Bill shall be presented for assent by the President.

Dissolution of the Senate

72. The Senate shall continue from the date of its first sitting, being no later than thirty days after a Local Government election after any dissolution, until it dissolves sixty days before the next Local Government elections:

Provided that the life of the Senate shall not, in any case, be longer than three years.

Presidential assent 73.--(1) Where a Bill is presented to the President for assent, the President shall either assent or withhold assent.

(2) Where the President withholds assent to a Bill, the Bill shall be returned to the Speaker of the National Assembly by the President with a notification that the President's assent has been withheld, including reasons therefor, and the Bill shall not be again debated by the National Assembly until after the expiry of twenty-one days from the date of the notification of that withholding.

(3) If the Bill is debated again and passed by a majority of the National Assembly at any time between the date of the expiry of the twenty-one days referred to in subsection (2) and six months from that date, the Bill shall again be presented for assent by the President.

(4) Where a Bill is again presented to the President for assent in accordance with subsection (3), the President shall assent to the Bill within twenty-one days of its presentation.

(5) When a Bill that has been duly passed is assented to in accordance with this Constitution, the Clerk shall cause it to be published immediately in the Gazette.

The coming into force of laws 74. No law made by Parliament shall come into force until it has been published in the Gazette, but Parliament may prescribe that a law shall not come into force until some later date, after its publication in the Gazette.

CHAPTER VII

ELECTIONS

The Electoral Commission

75.--(1) There shall be an Electoral Commission which shall consist of a Chairman who shall be a Judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament.

(2) A person shall not be qualified to hold the office of a member of the Electoral Commission if that person is a Minister, Deputy Minister, a member of Parliament or a person holding public office.

(3) Subject to this section, a person shall cease to be a member of the Electoral Commission--

(a) at the expiration of four years from the date of his or her appointment, unless reappointed to a new four-year term; or

(b) if any circumstances arise that, if that person were not a member of the Electoral Commission, he or she would be disqualified for appointment as such.

(4) A member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on the grounds of incapacity or incompetence in the performance of the duties of that office.

Powers and functions

76.--(1) The Electoral Commission shall exercise such functions in relation to elections as are conferred upon it by this Constitution or by an Act of Parliament.

(2) The duties and functions of the Electoral Commission shall include--

(a) to determine constituency boundaries impartially on the basis of ensuring that constituencies contain approximately equal numbers of voters eligible to register, subject only to considerations of--

(i) population density;

(ii) ease of communication; and

(iii) geographical features and existing administrative areas;

(b) to review existing constituency boundaries at intervals of not more than five years and alter them in accordance with the principles laid down in subsection (2) (a);

(d) to ensure compliance with the provisions of this Constitution and any other Act of Parliament; and

(e) to perform such other functions as may be prescribed by this Constitution or an Act of Parliament.

(3) Any person who has petitioned or complained to the Electoral Commission shall have a right to appeal to the High Court against determinations made under subsections (2) (c) and (2) (d).

(4) The Electoral Commission shall exercise its powers, functions and duties under this section independent of any direction or interference by other authority or any person.

(5) Without prejudice to subsection (3)--

(a) the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament; and

(b) the National Assembly shall confirm all determinations by the Electoral Commission with regard to the drawing up of constituency boundaries but may not alter the boundaries of any constituency, except upon the recommendation of the Electoral Commission.

The franchise

77.--(1) All persons shall be eligible to vote in any general election, by-election, presidential election, local government election or referendum, subject only to this section.

(2) Subject to subsection (3), a person shall be qualified to be registered as a voter in a constituency if, and shall not be so qualified unless, at the date of the application for registration that person--

(a) is a citizen of Malawi or, if not a citizen, has been ordinarily resident in the Republic for seven years;

(b) has attained the age of eighteen years; and

(3) No person shall be qualified for registration as a voter in a constituency if that person--

(a) is under any law in force in the Republic adjudged or otherwise declared to be mentally incompetent;

(b) is under sentence of death imposed by a court having jurisdiction in the Republic, either before or after the appointed day; or

(c) is disqualified from registration as a voter on the grounds of his or her having been convicted of any violation of any law relating to elections passed by Parliament and in force at the time of, or after the commencement of, this Constitution.

(4) Where any person is qualified to be registered in more than one constituency as a voter, he or she may be so registered only in one of the constituencies.

(5) No person shall exercise more than one vote in any one election.

CHAPTER VIII

THE EXECUTIVE

The President

78. There shall be a President of the Republic who shall be Head of State and Government and the Commander-in-Chief of the Defence Forces of Malawi.

The Vice-President

79. There shall be a Vice-President who shall assist the President and who shall exercise the powers and functions conferred on him or her by this Constitution and by any Act of Parliament and by the President.

Election of the President and Vice-President

80.--(1) The President shall be elected in accordance with the provisions of this Constitution in such manner as may be prescribed by an Act of Parliament.

(2) The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.

(3) Every presidential candidate shall declare who shall be his or her Vice-President if he or she is elected at the time of his or her nomination.

(4) The Vice-President shall be elected concurrently with the President and the name of a candidate for the Vice-President shall appear on the same ballot paper as the name of the Presidential candidate who nominated him.

(5) A person shall only be qualified for nomination for election as President or Vice-President if that person--

(a) is a citizen of Malawi by birth or descent; and

(b) has attained the age of thirty-five years.

(6) No person shall be eligible for nomination as a candidate for election as President or Vice-President if that person--

(a) has been adjudged or declared to be of unsound mind;

(b) is an undischarged bankrupt having been declared bankrupt under a law of the Republic;

(d) is under a declaration of allegiance to a foreign country;

(e) is the holder of a public office or a member of Parliament, unless that person first resigns;

(f) is a serving Member of the Defence Forces or Malawi Police Force; or

(g) has been convicted by any court of any violation of any law relating to election of the President or election of the members of Parliament under any Act of Parliament.

Oath of office

81.--(1) Before a person elected to be President or appointed to be Vice-President takes office that person shall take the following oath which shall be administered in public by the Chief Justice--

"I.......do solemnly swear that I will well and truly perform the functions of the high office of President (or Vice-President) of the Republic of Malawi, and that I will preserve and defend the Constitution, and that I will do right to all manner of people according to law without fear or favour, affection or ill-will. So help me God.".

(2) Instead of taking an oath, the President or Vice-President may, if he or she thinks fit, make an affirmation which shall be in the like form with the substitution of "affirm" for "swear", and the omission of the final sentence.

(3) A person elected to be President or appointed to be Vice- President shall be sworn into office, in accordance with sub- section (1), within thirty days of being elected.

(4) The President and Vice-President shall hold office until such time as his or her successor is sworn in.

Remuneration

82. The President and Vice-President shall receive such salary, allowance or pension as may, from time to time, be determined by an Act of Parliament in consultation with President and shall have such adequate number of residences and personal staff, at State expense, as an Act of Parliament may prescribe.

Term of office

83.--(1) The President and the Vice-President shall hold office for five years.

(2) The President or Vice-President may serve a maximum of two consecutive terms.

(3) Whenever there is a vacancy in the office of President the Vice-President shall assume that office for the remainder of the term.

Death or resignation of a Vice-President

84. If the Vice-President dies or resigns from office, the vacancy shall be filled for the unexpired period of that term by a person appointed by the President.

Vacancy of office of President and Vice-President

85. If at any time both the office of President and Vice-President become vacant then the Cabinet shall elect from among its members an Acting President and Acting Vice-President who shall hold office for not more than sixty days or, where four years of a Presidential term have expired, for the rest of that Presidential term.

Removal from office

86.--(1) The President and Vice-President shall be removed from office where the National Assembly has indicted and convicted the President or Vice-President by impeachment.

(2) The procedure for impeachment shall be as laid down by the Standing Orders of Parliament, provided that they are in full accord with the principles of natural justice and that--

(a) indictment and conviction by impeachment shall only be on the grounds of serious violation of the Constitution or serious breach of the written laws of the Republic that either occurred or came to light during the term of office of the President or the Vice- President;

(b) indictment on impeachment shall require the affirmative vote of two-thirds of the members of the National Assembly in a committee of the whole house;

(c) the Speaker shall preside over proceedings of indictment by impeachment and the Chief Justice shall preside over trial on impeachment;

(d) conviction on impeachment shall require the affirmative vote of two-thirds of the members of both Chambers;

(e) conviction in cases of impeachment shall cause the removal, and disqualification from future office, of the office holder; and

(f) conviction by way of impeachment shall not act as a bar to legal proceedings.

Incapacity

87.--(1) Whenever the President is incapacitated so as to be unable to discharge the powers and duties of that office, the Vice- President shall act as President, until such time, in the President's term of office, as the President is able to resume his or her functions.

(2) The President shall not be deemed to be incapacitated for the purposes of this section until and unless--

(a) there is a written declaration, certified by a board of independent medical practitioners, that the President is unable to discharge the duties of the office of President;

(b) the declaration is signed by the Vice-President and a majority of the Cabinet, holding office at that time; and

(3) Upon submission to the Speaker of a declaration under subsection (2), the Vice-President shall immediately assume the powers and duties of the office of President as Acting President.

(4) Where the President has been declared to be incapacitated in accordance with subsection (2) the President may, at any time thereafter, submit to the National Assembly a written declaration, certified by a board of independent medical practitioners, stating his or her fitness to carry on the duties of the office of President:

Provided that--

(a) upon receipt of such a declaration from the President, the National Assembly shall have thirty days within which to determine whether or not the President is in fact or not so incapacitated as to be unable to discharge the duties of the office of President; and

(b) if the National Assembly determines that the President remains so incapacitated so as to be unable to discharge the duties of the office of President, by an affirmative vote of two-thirds of all of its members, the Vice-President shall continue to act as President until the National Assembly determines that the President is again fit to assume the duties and powers of the office of President; or

(c) if the National Assembly determines that the President is no longer so incapacitated as to be unable to discharge the duties of the office of President by an affirmative vote of two-thirds of the National Assembly, the President shall resume the duties of the office of President within thirty days of that vote.

(5) If, on the expiry of twelve months from the date of the Speaker being notified of the incapacity of the President, the National Assembly has not determined that the President is fit to perform duties of the office of President in accordance with subsection (4), then a Presidential election shall be held.

(6) The provisions of this section shall apply mutatis mutandis to the incapacity of the Vice-President except that the certificate shall then be signed by the President and be submitted to the Speaker by the President and the functions of the Vice-President shall be carried out by such other member of Cabinet as the President may appoint.

Responsibility of the President

88.--(1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall, as Head of State, defend and uphold the Constitution as the supreme law of the Republic.

(2) The President shall provide executive leadership in the interest of national unity in accordance with this Constitution and the laws of the Republic.

(3) The President and members of the Cabinet shall not hold any other public office and shall not perform remunerative work outside the duties of their office and shall fully disclose all of their assets, liabilities and business interests, those of their spouses, or held on their behalf upon election.

(4) Any business interests held by the President and members of the Cabinet shall be held on their behalf in a beneficial trust which shall be managed in such manner as to ensure conformity with this section.

(5) The President and members of the Cabinet shall not use their respective offices for personal gain or place themselves in a situation where their material interests conflict with the responsibilities and duties of their offices.

Powers and duties of the President

89.--(1) The President shall have the following powers and duties--

(a) to assent to Bills and promulgate Bills duly passed by Parliament;

(b) to convene and preside over meetings of the Cabinet;

(d) to make such appointments as may be necessary in accordance with powers conferred upon him or her by this Constitution or an Act of Parliament;

(e) subject to this Constitution, to appoint, accredit, receive and recognize ambassadors, high commissioners, plenipotentiaries, diplomatic representatives and other diplomatic officers, consuls and consular officers;

(f) to negotiate, sign, enter into and accede to international agreements or to delegate such power to ministers, ambassadors and high commissioners;

(g) to appoint commissions of inquiry;

(h) to refer disputes of a constitutional nature to the High Court; and

(i) to proclaim referenda and plebiscites in accordance with this Constitution or an Act of Parliament.

(2) The President may pardon convicted offenders, grant stays of execution of sentence, reduce sentences, or remit sentences:

Provided that--

(a) decisions under this subsection shall be taken in consultation with an Advisory Committee on the Granting of Pardon, the composition and formation of which shall be determined by an Act of Parliament; and

(b) judgements in cases of impeachment of the President or Vice- President shall not be liable to pardon by the President.

(3) The President shall each year, immediately before the consideration of the official budget, attend Parliament and shall--

(a) address Parliament on the state of the nation and on the future policies of the Government at that time;

(b) report on the policies of the previous year; and

(4) The President shall be called to Parliament to answer questions at such times as may be prescribed by the Standing Orders of Parliament or on a motion of the National Assembly or Senate.

(5) Subject to this Constitution and any Act of Parliament, the President shall exercise all other powers reasonably necessary and incidental to the functions of his or her office in accordance with this Constitution.

(6) The powers and functions of the President shall be exercised by him or her personally or by a member of the Cabinet or by a government official to whom the President has delegated such power in writing.

Confirmation of decisions, etc., of the President

90.--(1) Decisions of the President shall be expressed in writing under his or her signature.

(2) The signature of the President on any instrument shall be confirmed by the Public Seal.

Immunity

91.--(1) No person holding the office of President or performing the functions of President may be sued in any civil proceedings but the office of President shall not be immune to orders of the courts concerning rights and duties under this Constitution.

(2) No person holding the office of President shall be charged with any criminal offence in any court during his term of office, except where he or she has been charged with an offence on impeachment.

(3) After a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity during his or her term of office but shall not otherwise be immune.

Cabinet

92.--(1) There shall be a Cabinet consisting of the President, the Vice-President and such Ministers and Deputy Ministers as may, from time to time, be appointed by the President.

(2) The Cabinet shall exercise the powers and functions assigned to it by this Constitution or an Act of Parliament and shall be responsible for advising the President with respect to the policies of the Government and with respect to such other matters as may be referred to it by the President.

(3) Cabinet meetings shall be presided over by the President or, in the temporary absence of the President, by the Vice-President.

(4) There shall be a Secretary to the Cabinet who shall be appointed by the President and whose office shall be public office and who shall--

(a) have charge of the Cabinet office;

(b) be responsible, subject to the directions of the Cabinet, for arranging the business, and keeping the minutes of the Cabinet;

(d) have such other functions as the Cabinet may direct.

Government departments

93.--(1) There shall be Ministers and Deputy Ministers who shall be appointed by the President and who shall exercise such powers and functions, including the running of Government departments, as may be prescribed by the President subject to this Constitution.

(2) Every Government department shall be under the supervision of a Principal Secretary who shall be under the direction of a Minister or Deputy Minister, and whose office shall be a public office.

Appointment of Ministers

94.--(1) The President shall have the power to appoint Ministers or Deputy Ministers and to fill vacancies in the Cabinet.

(2) A person shall not be qualified to be appointed as a Minister or Deputy Minister unless that person--

(a) is a citizen of the Republic who upon taking office, has attained the age of twenty-one years;

(b) is able to speak and to read the English language; and

(3) Notwithstanding subsection (2), no person shall be qualified to be appointed as a Minister or Deputy Minister who--

(a) owes allegiance to a foreign country;

(b) is, under any law in force in the Republic, adjudged or otherwise declared to be of unsound mind;

(d) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in the Republic;

(e) holds or acts in any public office or appointment, except where this Constitution explicitly provides that a person shall not be disqualified from standing for election solely on account of holding that office or appointment, or where that person resigns from that office in order to stand;

(f) belongs to, and is serving in the Defence Forces of Malawi or in the Malawi Police Force;

(g) has been convicted by any court of any violation of any law relating to election of the President or election of the members of Parliament under any Act of Parliament.

Oath of office and removal of Minister or Deputy Minister

95.--(1) No Minister or Deputy Minister shall assume office, unless an oath or solemn affirmation was taken and executed in public in a manner prescribed by an Act of Parliament.

(2) The President shall have the power to remove Ministers or Deputy Ministers from their posts.

Duties and functions of the Cabinet

96.--(1) The members of the Cabinet shall have the following functions--

(a) to advise the President;

(b) to direct, co-ordinate and supervise the activities of Government departments, including parastatal bodies;

(d) to prepare, explain and formulate for the Parliament the budget of the State and its economic programmes;

(e) to be available to Parliament for the purposes of answering any queries or participating in any debate pertaining to the content of the policies of the Government;

(f) to assist the President in determining what international agreements are to be concluded or acceded to and to inform Parliament thereon;

(g) to take responsibility for the implementation and administration of laws; and

(h) to carry out such other functions reasonably necessary for the performance of their duties in accordance with this Constitution, as may be prescribed by an Act of Parliament or the President.

(2) In performing the duties and functions referred in this section the Cabinet shall make legislative proposals available in time in order to permit sufficient canvassing of expert and public opinion.

Ministerial accountability

97. All Ministers shall be responsible to the President for the administration of their own departments.

The Attorney General

98.--(1) There shall be the office of Attorney General, who shall be the principal legal adviser to the Government.

(2) Such powers as are vested in the office of the Attorney General may be exercised by the person appointed to that office or such other persons in the public service, acting as subordinates of that person and in accordance with his or her general and specific instructions.

(3) Appointment to the office of Attorney General shall be made by the President.

(4) The office of Attorney General shall become vacant after the person holding that office has served for five years, or on his or her resignation or retirement, whichever is sooner, provided that the person holding that office may be nominated for such further terms, not exceeding five years, as the President considers appropriate.

(5) The office of Attorney General may either be the office of a Minister or may be a public office.

(6) The Attorney General shall be subject to removal by the President on the grounds of incompetence, incapacity or being compromised in the exercise of his duties to the extent that his ability to give impartial legal advice is seriously in question.

The Director of Public Prosecutions

99.--(1) There shall be a Director of Public Prosecutions, whose office shall be a public office.

(2) The Director of Public Prosecutions shall have power in any criminal case in which he considers it desirable so do--

(a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b) to take over and continue any criminal proceedings which have been instituted or undertaken by any other person or authority; and

(c) to discontinue at any stage before judgement is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority.

(3) The powers conferred on the Director of Public Prosecutions by subsection (2) (b) and (c) shall be vested in him or her to the exclusion of any other person or authority and whenever exercised, reasons for the exercise shall be provided to the Legal Affairs Committee or Parliament within ten days:

Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.

(4) For the purposes of this section, any appeal from any judgement in any criminal proceedings before any court, or any case stated or question of law reserved to any other court for the purpose of any such proceedings, shall be deemed to be part of those proceedings:

Provided that the Director of Public Prosecutions shall not exercise the power under subsection (2) (c) to discontinue proceedings with respect to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person.

Delegation of powers to prosecute

100.--(1) Save as provided in section 99 (3), such powers as are vested in the office of the Director of Public Prosecutions may be exercised by the person appointed to that office or such other persons in the public service, acting as his or her subordinates and in accordance with his or her general and specific instructions in accordance with an Act of Parliament.

(2) Notwithstanding subsection (1)--

(a) the person appointed to the office of Director of Public Prosecutions shall be accountable to the Legal Affairs Committee of Parliament for the exercise of such powers in his or her own behalf and those powers exercised on his or her behalf by subordinates in accordance with subsection (1); and

(b) an Act of Parliament shall prescribe restrictions relating to the exercise of powers under this section by any member of the Malawi Police Force.

Appointment of the Director of Public Prosecutions

101.--(1) Appointment to the office of Director of Public Prosecutions shall be made by the President subject to satisfying requirements as to competence of the person so appointed to perform the duties of that office and as to capacity of a person so appointed to pursue prosecutions independently.

(2) A person appointed to the office of Director of Public Prosecutions or exercising powers on behalf of that office shall exercise those powers and the powers conferred on him or her by this Constitution or any other law independent of the direction and control of any authority or person and in strict accordance with the law:

Provided that the Director of Public Prosecutions or the Attorney General may be summoned by the Legal Affairs Committee of Parliament to appear before it to give account for the exercise of those powers.

Removal of the Director of Public Prosecutions 102--(1) The office of the Director of Public Prosecutions shall become vacant after the person holding that office has served five years or on his or her resignation or retirement whichever is sooner:

Provided that the person holding that office may be appointed for such further terms, not exceeding five years, as the President considers appropriate.

(2) A person holding the office of the Director of Public Prosecutions may be removed from the office by the President before the expiration of his or her term of office, if the President is satisfied that the person holding that office is--

(a) is incompetent in the exercise of his or her duties;

(b) is compromised in the exercise of his or her duties to the extent that his or her ability to exercise his or her functions impartially is in serious question;

(d) has attained the age prescribed for retirement.

CHAPTER IX

THE JUDICATURE

The independence and jurisdiction of the courts and the judiciary

103.--(1) All courts and all persons presiding over those courts shall exercise their functions, powers and duties independent of the influence and direction of any other person or authority.

(2) The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence.

(3) There shall be no courts established of superior or concurrent jurisdiction with the Supreme Court of Appeal or High Court.

The Supreme Court of Appeal

104.--(1) There shall be a Supreme Court of Appeal for Malawi, which shall be a superior court of record and shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law.

(2) The Supreme Court of Appeal shall be the highest appellate court and shall have jurisdiction to hear appeals from the High Court and such other courts and tribunals as an Act of Parliament may prescribe.

Composition of the Supreme Court of Appeal

105.--(1) The Justices of the Supreme Court of Appeal shall be--

(a) the Chief Justice;

(b) such number of other Justices of Appeals not being less than three, as may be prescribed by an Act of Parliament.

(2) When the Supreme Court of Appeal is determining any matter, other than an interlocutory matter, it shall be composed of an uneven number of Justices of Appeal, not being less than three.

(3) A Justice of the Supreme Court of Appeal may only be appointed in accordance with section 111.

Acting Justices of Appeal

106.--(1) If, by reason of a vacancy of office, or by reason of the operation of section 107, there are less than three serving Justices of Appeal, then the President may, on the recommendation of the Judicial Service Commission, appoint judges of the High Court, to serve as Acting Justices of Appeal.

(2) An Acting Justice of Appeal shall hold that office only until such time as he or she is appointed Chief Justice or Justice of Appeal in accordance with section 111, but he or she shall cease to serve as a Justice of Appeal if--

(a) there are more than three serving Justices of Appeal, either by reason of a vacancy or vacancies being filled in accordance with section 111 or where such Justices of Appeal or Acting Justices of Appeal as have been excused from serving on the Supreme Court are able to resume their duties in accordance with section 107;

(b) he or she is excused from his or her duties as a Justice of Appeal or an Acting Justice of Appeal in accordance with section 107.

Relief from duties

107.--(1) A Justice of Appeal or Acting Justice of Appeal shall be excused from serving on the Supreme Court of Appeal only for such time as is reasonably necessary and only--

(a) by reason of that Justice or Acting Justice of Appeal having been a party to proceedings in a lower court, the decision of which is being appealed to the Supreme Court of Appeal; or

(b) for such other reason that the Chief Justice or Judicial Service Commission considers would prevent him or her from performing the duties of his or her office.

(2) For the purposes of this section "a party to proceedings" shall include--

(a) any person exercising a judicial function in those proceedings;

(b) having been retained for the purposes of legally representing a party to the proceedings; or

The High Court

108.--(1) There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.

(2) The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.

Composition of the High Court

109. The Judges of the High Court shall be such number of judges, not being less than three, as may be prescribed by an Act of Parliament.

Subordinate courts

110.--(1) There shall be such courts, subordinate to the High Court, as may be prescribed by an Act of Parliament which shall be presided over by professional magistrates and lay magistrates.

(2) There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament.

(3) Parliament may make provision for traditional local courts presided over by lay persons or chiefs:

Provided that the jurisdiction of such court shall be limited exclusively to civil cases at customary law and such minor common law and statutory civil cases as prescribed by an Act of Parliament.

Appointment of the Judiciary

111.--(1) The Chief Justice shall be appointed by the President and confirmed by the National Assembly by a majority of two thirds of the members present and voting.

(2) All other judges shall be appointed by the President on the recommendation of the Judicial Service Commission.

(3) Magistrates and persons appointed to other judicial offices shall be appointed by the Chief Justice on the recommendation of the Judicial Service Commission and shall hold office until the age of seventy unless removed in accordance with section 119.

(4) For the purposes of this Chapter "judicial office" means the office of--

(a) a Justice of Appeal or Acting Justice of Appeal;

(b) a Judge of the High Court or Acting Judge of the High Court;

(d) a magistrate of whatever grade; and

(e) a person presiding over a Traditional Court.

(5) For the purposes of this Chapter "judge" shall mean a Justice of Appeal, an Acting Justice of Appeal, a Judge of the High Court or an Acting Judge of the High Court.

Qualification of Judicial officers

112.--(1) A person shall not be qualified for appointment as a judge unless that person--

(a) is, or has been, a judge of a court having unlimited jurisdiction in criminal or civil proceedings; or

(b) is entitled to practise as a legal practitioner or an advocate or a solicitor in such a court and has been entitled so to practise for not less than ten years.

(2) For the purposes of this section, a person shall be regarded as entitled to practise as a legal practitioner or an advocate or a solicitor if that person has been called, enrolled or otherwise admitted as such and has not been subsequently disbarred or removed from the roll of legal practitioners or advocates or solicitors notwithstanding that the person--

(a) holds or acts in any office the holder of which is, by reason of his or her office, precluded from practising in court; or

(b) does not hold a practising certificate and has not satisfied any other like condition of his or her being permitted to practise.

Vacancy

113.--(l) If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to perform the functions of his or her office, then, until a person has been appointed to and has assumed the functions of that office, or until the person holding that office has resumed those functions, as the case may be, those functions shall be performed by the most senior judge then sitting on the Supreme Court of Appeal or High Court.

(2) If any judicial office is vacant or if any judge is appointed to act as Chief Justice, or is for any reason unable to perform the functions of his or her office, the President, on the recommendations of the Judicial Service Commission, may appoint a person qualified for appointment to that judicial office under this section to act in that office.

Remuneration

114.--(1) The Chief Justice and all other holders of judicial office shall receive a salary for their services and, on retirement, such pension, gratuity or other allowance as may, from time to time, be determined by the National Assembly.

(2) The salary and any allowance of a holder of judicial office shall not without his or her consent be reduced during his or her period of office and shall be increased at intervals so as to retain its original value and shall be a charge upon the Consolidated Fund.

Judicial oath

115. A person holding judicial office shall not enter upon the duties of his or her office unless that officer has taken and subscribed the oath of allegiance for the due execution of his or her office in such manner and form as may be prescribed by an Act of Parliament.

The Judicial Service Commission

116. There shall be a Judicial Service Commission for the regulation of judicial officers and which shall have such jurisdiction and powers as may be conferred on it by this Constitution or, subject to this Constitution, by any Act of Parliament.

Composition

117. The Judicial Service Commission shall consist of--

(a) the Chief Justice who shall be the Chairman;

(b) the Chairman of the Civil Service Commission, or such other member as may for the time being be designated in that behalf by the Chairman of the Civil Service Commission;

(c) such Justice of Appeal or Judge as may for the time being be designated in that behalf by the President acting after consultation with the Chief Justice; and

(d) such legal practitioner and such magistrate as may for the time being be designated in that behalf by the President acting after consultation with the Chief Justice.

Powers of the Judicial Service Commission

118. The Judicial Service Commission shall have the authority to--

(a) nominate persons for judicial office;

(b) exercise such disciplinary powers in relation to persons in judicial office subject to this Constitution as shall be prescribed by an Act of Parliament, subject to this Constitution;

(d) subject to this Constitution, make such representations to the President as may be prescribed by an Act of Parliament; and

(e) exercise such other powers as are conferred on it by this Constitution or as are reasonably necessary for the performance of its duties:

Provided that nothing in this section shall prejudice the right of any person in judicial office who was the subject of any decision by the Judicial Service Commission to appeal to the Supreme Court of Appeal against that decision.

Tenure of office of Judges

119.--(1) Subject to this section, a person holding the office of Judge shall vacate that office on attaining the age prescribed in subsection (6):

Provided that the President, after consultation with the Judicial Service Commission, may permit a Judge who has attained that age to continue in office for such period as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age.

(2) A person holding the office of Judge may be removed from office only for incompetence in the performance of the duties of his office or for misbehaviour, and shall not be so removed except in accordance with subsections (3) and (4).

(3) The President may by an instrument under the Public Seal and in consultation with the Judicial Service Commission remove from office any Judge where a motion praying for his removal on the ground of incompetence in the performance of the duties of his office or misbehaviour has been--

(a) debated in the National Assembly;

(b) passed by a majority of the votes of all the members of the Assembly; and

Provided that the procedure for the removal of a judge shall be in accordance with the principles of natural justice.

(4) Where notice of intention to introduce before the National Assembly a motion praying for the removal of a Judge from his office has been lodged in the office of the Speaker, the President may, where after consultation with the Judicial Service Commission he is satisfied that it is in the public interest so to do, suspend the Judge from performing the duties of his office.

(5) The suspension of a Judge under subsection (4) may at any time be revoked by the President, after consultation with the Judicial Service Commission, and shall in any case cease to have effect where the motion is withdrawn before being debated in the National Assembly or, upon being debated, is not passed by a majority thereof.

(6) The prescribed age for purposes of subsection (1) shall be the age of sixty-five years or such other age as may be prescribed by Parliament:

Provided that a law made by Parliament, to the extent that it alters the age at which a Judge shall vacate his office, shall not have effect in relation to a Judge after his appointment unless he consents to its having effect.

(7) Where the President considers it desirable in the public interest so to do, he may, with the consent of the person concerned, assign a person holding the office of Judge to any other office in the public service for such period as the President may determine during which that person may cease to perform the duties of his office as Judge; but so, however, that--

(a) such assignment shall not be regarded as removal of that person under subsection (2) from his office as Judge;

(b) the resumption by that person of the duties of his office as Judge shall not require formal reappointment;

CHAPTER X THE OMBUDSMAN

The Office of the Ombudsman

120. There shall be a public office known as the office of the Ombudsman which shall have such powers, functions and responsibilities as are conferred upon that office by this Constitution and any other law.

Independence of the Ombudsman

121. In the exercise of his or her powers, functions and duties the Ombudsman shall be completely independent of the interference or direction of any other person or authority.

Appointment of Ombudsman

122.--(1) Nominations for appointment to the office of Ombudsman shall be received from the public by way of a public advertisement placed by the Clerk to the National Assembly and the successful candidate shall be appointed by the Public Appointments Committee in accordance with the requirements of this section.

(2) The person appointed to the office of Ombudsman shall--

(a) have sufficient knowledge of the law;

(b) be publicly regarded as a person who can make impartial judgements;

(d) not have had any criminal convictions and not have been a bankrupt;

(e) be otherwise competent and capable of performing the duties of his or her office;

(f) not be the President, Vice-President, a Minister or Deputy Minister, a serving public officer or a member of Parliament; and

(g) not hold any other public office unless otherwise provided for in this Constitution.

Functions and powers

123.--(1) The office of the Ombudsman may investigate any and all cases where it is alleged that a person has suffered injustice and it does not appear that there is any remedy reasonably available by way of proceedings in a court or by way of appeal from a court or where there is no other practicable remedy.

(2) Notwithstanding subsection (1), the powers of the office of the Ombudsman under this section shall not oust the jurisdiction of the courts and the decisions and exercise of powers by the Ombudsman shall be reviewable by the High Court on the application of any person with sufficient interest in a case the Ombudsman has determined.

Powers of investigation

124. The Ombudsman shall have full powers to--

(a) subpoena the attendance of any person who the Ombudsm