76 Malawi CONSTITUTION of MALAWI" July 6, 1964 CHAPTER I CITIZENSHIP 1. (1) Every person who, having been born in the former Nyasaland Protectorate, is on 5th July 1964 a citizen of the United Kingdom and Colonies oF British protected person shall become a citizen of Malawi on 6th July 1964: Provided that a person shall not become a citizen of Malawi by virtue of this subsection if neither of his parents was born in the former Nyasa- land Protectorate. (2) Every person who, having been born outside Malawi, is on 5th Taly 1964 @ citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for have become, a citizen of Malawi in accordance with the provisions of subsection (1) of this section, become a citizen of Malawi on 6th July 1964. 2, (1) Any person who was on Bist December 1968» citizen of the former Federation of Rhodesia and Nyasaland and who has a substantial Malawi connection (a5 defined in subsection (2) of this section) shall be ‘entitled, upon msking application before Ou: July 1905 in such unsinsee ‘as may be prescribed by Parliament, to be registered as a citizen of Malawi. (@) For the purposes of subsection (1) of this section @ person has substantial Malawi connection if, and shall not be regarded as having such a connection unless: (@) he was born in the former Nyasaland Protectorate; (b) his fathor was born in the former Nyasaland Protectorate; (©) ho was, immediately before he became a citizen of the former Federation, a citizen of the United Kingdom and Colonies by virtue The Malawi Independence Onlor 1064. Statutory Instrumente, 1964, No, $16 HMSO.Malawi an of his having been registered or naturalized as such in the former Nyasaland Protectorate under the British Nationality Act 1948 or his father had at the time of that person’s birth been s0 registered or naturalized there under that Act; (@) ho was registered or naturalized as a citizen of the former Feder- ation, having been ordinarily resident in the former Nyasaland Protectorate at tho time of such rogistration or naturalization or bis fathor had at the time of that person's birth been so registered or naturalized and had beon so resident at the time of the registration or naturalization; (6) ho or his fathor was, as a minor child, registered as a citizen of the former Federation, tho rosponsible parent or the guardian upon whose application he was so registered being ordinarily resident in the former Nyasaland Protectorate at the time of the registration; (f he is, or his father was (his father also being or having been 8 citizen of the former Federation), the adopted child of a citizen or of citizens of the former Federation who or all of whom were resident and domiciled in the former Nyasaland Protectorate at the time of the adoption; (g) he was, or his father had at the time of that person’s birth been. registered, by virtue of, inter alia, his possession of associations with the former Nyasaland Protectorate as a citizen of the former Federation under section 16A of the Citizenship of Rhodesia and Nyasaland and British Nationality Act 1957 as insorted by the Gitizenship of Rhodesia and Nyasaland and British Nationality Amendment Aot 1959; or (b) his or his father's name had been included by virtue of section 18(7) of the Electoral Act 1958 in the list of general voters registered in the former Nyasaland Protectorate. (8) In any proceedings to determine whether any person has become acitizen of Malawi by virtue of subsection (2) (@) of this section, a cortifi- cate signed by the Minister responsible for matters relating to citizenship of Malawi shall be conclusive evidence of whether the registration of that person or his father as a citizen of the former Federation was by virtue, inter alia, of the possession of associations with the former Nyasa- land Protectorate. (4) Any woman who was on 31st December 1968 a citizen of the former Federation of Rhodesia and Nyasaland and who does not become a citizen of Malawi on 6th July 1964 under any other provision of this Chapter shall be entitled, upon making application before 6th July 1965 in such manner as may be prescribed by Parliament, to be registered as a citizen of Malawi, if: (@) she was, immediately before she became a citizen of the former Federation, married to a person who becomes or would, but for48 Malawi his death have become, entitled to be registered as a citizen of Malawi under subsection (1) of this section by virtue of any con- nection with Malawi that is deseribed in subsection (2) of this seotion; (b) she was, immediately before she became a citizen of the Feder- ation, the widow of a person who would, but for his death, have become entitled to be registered as a citizen of Malawi under sub- section (1) of this section by virtue of such a connection with Malawi as is described in subsection (2) (a) or (2) (¢) of this section; or (c) she was, immediately before she became a citizen of the Federa- tion, the widow of person whose father becomes, or would but, for his death have become, entitled to be registered as a citizen of Malawi under subsection (1) of this section by virtue of such a con- nection with Malawi as is desoribed in subsection (2) (a) or (2) (c) of this section, 3. (1) Any person who, but for the proviso to section 1 (1) of this Constitution would be a citizen of Malawi by virtue of that subsection, shall be entitled, upon making application before the specified date in such manner as may be prescribed by Parliament, to be registered as a citizen of Malawi: Provided that a percon who has not attained the age of twenty-one ryears (other than @ woman who is or has been married) may not himself ‘make an application under this subseotion, but an application may be made on his behalf by his parent or guardian. (2) Any woman who, on 5th July 1964, isor has been married to a person: (a) who becomes a citizen of Malawi by virtue of section 1 of this Constitution; or (b) who, having died before 6th July 1964 would, but for his death, have become a citizen of Malawi by virtue of that section, shall be entitled, upon making application in such manner as may be prescribed by Parliament, to be registered as a citizen of Malawi. (8) Any woman who, on oth July 196, 1s married to a person who subsequently becomes a citizen of Malawi by registration under subsection (2) or (6) of this section shall be entitled, upon making application before the specified date in such manner as may be prescribed by Parliament, to bo registered as a citizen of Malawi. (4) Any woman who, on 5th July 1964, has been married to a person ‘who becomes, or would, but for his death, have become, entitled to be registered as & citizen of Malawi under subsection (1) or (5) of this section, but whose marriage has been terminated by death or dissolution sball be entitled, upon making application before tho specified date in such manner as may be prescribed by Parliament, to be registered as a citizen of Malawi.Malawi “9 (6) Any person who, on 5th July 1964, is a citizen of the United Kingdom and Colonies, having become such a citizen by virtue of his having been naturalized or registered in the former Nyasaland Protec- torate under the British Nationality Act 1948, shall be entitled, upon ‘making application before the specified date in such manner as may be prescribed by Parliament, to be registered as a citizen of Malawi: Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection but an application may be ‘made on his behalf by his parent or guardian, (6) In this section “the specified date” means: (a) in relation to a person to whom subsection (1) of this section refers, 6th July 19655 (b) in relation to © woman to whom subsection (3) of this section refers, the expiration of such period after her husband is registered as a citizen of Malawi as may be prescribed by or under an Act of Parliament; (©) inzelation to a woman to whom subsoetion (4) of this section refers, 6th July 1965; and (4) in relation to a person to whom subsection (6) of this section rofors, 6th July 1965. or such later date as may in any particular case be prescribed by or under an Act of Parliament. 4, Every person born in Malawi after 5th July 1964 shall become ‘a citizon of Malawi at the date of his birth: Provided that a person shall not become a citizen of Malawi by virtue of this section if at the time of his birth () neither of his parents isa citizen of Malawi and his father possesses such immunity from suit and legel process as is accorded to the envoy of a foreign sovereign power accredited to Malawi; ot (b) his father is a citizen of a country with which Malawi is at war and the birth occurs in a place then under occupation by the enemy. 2. A penion burn vulside Malawi after Sth July 190% shall Lecoure a citizen of Malawi at the date of his birth if at that date his father is a citizen of Malawi otherwise than by virtue of this section or section 1 (2) of this Constitution. 6. Any woman who has been married to 8 citizen of Malawi shall be entitled, upon making application in such manner as may be pre- scribed by Parliament, to be rogistered as a citizen of Malawi, 7. (1) Any person who, upon the attainment of the age of twenty- one years, is « citizen of Malawi and also a citizen of some country other than Malawi shall, subject to the provisions of subsection (7) of this section, cease to be & citizen of Malawi upon the specified date unless he has renounced his citizenship of that other country, taken the oath480 Malawi of allegiance and, in the case of a person who was born outside the former Nyasaland Protectorate or Malawi, made and registered such declaration of his intentions concerning residence as may be prescribed by Parliament. @) Any person who: (a) has attained the age of twenty-one years before 6th July 1964; and (b) becomes a citizen of Malawi on that day by virtuo of the provi- sions of section 1 of this Constitution; and (©) isimmodiately after that day also a citizen of some country other than Malawi, shall, subject to the provisions of subsection (7) of this section, cease to be a citizen of Malawi upon the specified date unless he has renounced his citizenship of that other country, taken the oath of alligianee and, in the case of a person who is a citizen of Malawi by virtue of section 1(2) of this Constitution, made and registered such declaration of his intentions concerning residence as may be preseribed by Parliament. (8) A citizen of Malawi shall cease to be such a citizen if: (@) having attained the age of twenty-one years, he acquires the citizenship of some country other than Malawi by voluntary act (other than marriage); or (b) having attained ‘the age of twenty-one years, he otherwise acquires the citizenship of some country other than Malawi and has not, by the specified date, renounced his citizenship of that other country, taken the oath of allegiance and made and registered such declaration of his intontions concorning residence as may bo prescribed by Parliament: (4) A person who: {a) becomes a citizen of Malawi by registration under the provisions of section 2, 8 or 6 of this Constitution; and (b) is immediately after the day upon which he becomes a citizen of Malawi also a citizen of some other country, shall, subject to the provisions of subsection (7) of this section, cease to be a citizen of Malawi upon the specified dato unless he has renounced ‘the eftizenship of shat other country, taken the oath of allegiance, and ‘made and registered such declaration of his intentions concerning residence ‘as may be prescribed by Parliament. (6) For the purpose of this section, where, under the law of a country other than Malawi a person cannot renounce his citizenship of that other country, he need not make such renunciation but he may instead be required to make such declaration concerning that citizenship as may be preseribed by Parliament. (6) In this section “the specified date” means: (@) in relation to a person to whom subsection (1) of this section refers, the date on which he attains the age of twenty-two years or 6th July 1965, whichever is the later;Malawi 481 (©) in relation to @ person to whom subsection (2) of this section refers, 6th July 1965; (0) in relation to # person to whom subsection (3) (b) of this section refers, the expiration of one year after the date on which he acquired the citizenship of the country other than Malawi; and (@) in relation to a person to whom subsection (4) of this section refers, at the expiration of three months after the date upon which he became a citizen of Malawi, or, in the case of a person of unsound mind, such later date as may bbe prescribed by or under an Act of Parliament. (1) Provision may be made by or under an Act of Parliament for extending beyond the specified date the period in which any person ‘may make renunciation of citizenship, take an oath or make or register ‘a declaration for the purposes of this section, and if such provision is made ‘that person shall not cease to be a citizen of Malawi upon the specified date but shall cease to be such a citizen upon the expiration of the extended period if he has not then mado the renunciation, taken the oath or made or rogistered the declaration, as the case may be. 8. (1) Every person who under this Constitution or any Act of Parlia- ment is a citizen of Malawi or under any enactment for the time being in force in any country to which this section applies is a citizen of that country shall, by virtue of that citizenship, have the status of a Common- wealth citizen, (@) Every person who is a British subject without citizenship under tho British Nationality Act 1948, or who continues to be a British subject under section 2 of that Act, shall, by virtue of that status, have the status of a Commonwealth citizen. (@) Save as may be otherwise provided by Parliament, the countries to which this section applies are the United Kingdom and Colonies, Canada, Australia, New Zealand, India, Pakistan, Coylon, Ghana, Malaysia, Nigeria, Cyprus, Sierra Leone, Tanganyika and Zanzibar, Jamaica, Trinidad and ‘Tobago, Uganda, Kenya and Southern Rhodesia 9. (1) Parliament may make provision for the acquastion of eatizenshup of Malawi by persons who are not eligible or who are no longer eligible to become citizens of Malawi under the provisions of this Chapter. ) Parliament may make provision for depriving of his citizenship of Malawi any person who is a citizen of Malawi otherwise than by virtue ‘of section 1 (1) or section 4 of this Constitution. (8) Parliament may make provision for the renunciation by any pperson of his citizenship of Malawi. 0. (1) In this Chapter “British protected person” means a person who is a British protected person for the purposes of the British Nationality Act: 1948, (@) For the purposes of this Chapter, a person born aboard a registered482 Malawi ship or aircraft, or aboard an unregistered ship or aircraft of the Govern- ‘ment of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the ease may be, in that country. (8) Any reference in this Chapter to the national status of the father of a person at the time of that person's birth shall, in relation to a person born after the death of his father, be construed as a reference to the national status of the father at tho time of the father’s death; and where that death occurred before 5th July 1964 and the birth occurred after 6th July 1964 the national status that the father would have had if he had died on 6th July 1964 shall be deemed to be his national status at, the time of his death. CHAPTER II PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL 11. Whereas every person in Malawi is entitled to tho fundamental rights and freodoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, ereed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: (a) life, iberty, sceurity of the person and the protection of the la (b) freedom of conscience, of expression and of assembly and as- sociation; and (©) protection for the privacy of his home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitation of that protection as aro contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the nghts and freedoms of others or the public interest. 422, (1) No person shall be deprived of his life intentionally save in ‘execution of the sentence of a court in respect of a criminal offence under the law of Malawi of which he has been convicted. (@) Without: prejudice to any liability for a contravention of any other law with respect to the use of foreo in such cases as are hereinafter ‘mentioned, a person shall not be regarded as having been deprived of his life in contravention of his section if he dies as the result of the use of force to such extent as is reasonably justifiable in the circumstances of the case: (@) for the defence of any person from violence or for the defence of property;Malosei 483 (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (©) for the purpose of suppressing o riot, insurrection or mutiny; or (a) in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war. 13. (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases, that is to say: (@) in execution of the sentence or orderof a court, whether established for Malawi or some other country, in respect of o criminal offence of which he has beon convicted; (b) in execution of the order of a court of record punishing him for contempt of that court or of a court inferior to it; (©) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law; (@) for the purpose of bringing him before a court in execution of the order of @ court; (©) upon reasonable suspicion of his having committed, or being about to commit, @ criminal offence under the law of Malawi; ( under the order of » court or with the consent of his parent or guardian, for his education or welfare during any period ending not later than the date when he attains the age of eighteen years; (@) for the purpose of preventing the spread of an infectious or contagious disease; () in the ease of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for ‘the purpose of his care or treatment or the protection of the com- manit} {() for the purpose of preventing the unlawful entry of that porson into Malawi, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Malawi or for the purpose bf testuicling iat person while be is being conveyed through Malawi in the course of his extradition or removal as a convieted prisoner from ono country to another; or @) to such extent as may be necessary in the execution of o lawful order requiring that person to remain within a specified area within Malawi or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of pro- ceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he is permitted to make to any part of Malawi in which, in consequence of any such order, his presence would otherwise be unlawful,484 Malawi (2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that the understands of the reasons for his arrest or detention. (8) Any person who is arrested or detained: (@) for the purpose of bringing him before a court in execution of the order of a court; or (b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Malawi, and who is not released, shall be brought without undue delay before ‘8 court; and if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at alater date for trial or for proceedings preliminary to trial. (4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person. 14, (1) No person shall be held in slavery or servitude. (2) No person shall be required to perform foreed labor. (8) For the parposes of this section, the expression “forced labor” does not include: (@) any labor required in consequence of the sentence or order of a court; (b) labor required of any person while he is lawfully detained that, ‘thongh not required in consequence of the sentence or odrer of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained; (©) any labor required of 2 member of a disciplined force in pur- suance of his duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labor that that perton 1s required by law to perform in place of such service; (@ any labor required during any period when Malawi is at war or a declaration of emergency under section 26 of this Constitution is in force or in the event of any other emergency or calamity that throatons the life and well-being of the community, to the extent that the requiring of such labor is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or (¢) any labor reasonably required as part of reasonable and normal communal or other civie obligations.Malawi 485 15. (1) No person shall be subjected to torture or to inhuman or de grading punishment or other treatinent, 2) Nothing contained in or done under the authority of any law shall bbe held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any deseription of punishment that was lawful in the former Nyasaland Protectorate on 5th July 1964, 16. (1) No property of any description shall be compulsorily taken ‘possession of and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say (a) the taking of possession or acquisition is necessary or expedient: (@ in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement; or (i) in order to seoure the development or utilization of that, or other, property for a purpose benefieal to the community; and (©) provision is made by @ law applicable to that taking of possession or acquisition: (i) for the prompt payment of adequate compensation; and (i) securing to any person having an interest in or right over the property a right of access to a court or other authority for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation. (2) No person who is entitled to compensation under this section shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Malawi. (6) Nothing contained in or done under the authority of any Iw shall be held to be inconsistent with or in contravention of subsection (2) of this section to the extent that the law in question authorizes: (@) the attachment, by order of a court, of any amount of com- pensation to which a person is entitled in satisfaction of the judgment of court or pending the determination of eivil proceedings to which he is party;; or (b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted. (4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section:486 Malawi (@) to the extent that the law in question makes provision for the taking of possession or acquisition of any property: (i) in satisfaction of any tax, rate or due; i) by way of penalty for breach of the law, whether under eivil process or after conviction of a criminal offence under the law of Malawi; (di) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contracts (iv) in the execution of judgments or orders of a court in proceedings for the determination of eivil rights or obligations; (~) in circumstances where it is reasonably necessary so to do hhooanse the property i in a dangarans stata or injurians to the health of human beings, animals or plants; (vi) in consequence of any law with respect to the limitation of actions; or (vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being ‘work relating to such development or improvement that the owner or occupier of the land has boon required, and has without reasonable ‘excuse refused oF failed, to carry out), except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be resonably justifiable in a democratic society ; or {(b) to the extent that the law in question makes provision for the taking of possession or acquisition of: {@) enemy propert (ii) property of a deceased person, a person of unsound mind or @ person who has not attained the age of eighteen years, for the purpose of its administration for the benefit of the persons titled to the beneficial interest therein; (Gi), property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or (Gv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrament, creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust. (6) Nothing in this section shall be construed as affecting the making or operation of any law for the compulsory taking of possession in theMalawi 487 public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided by Pariament. 17. (1) Excopt with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. () Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the ‘extent that the law in question makes provision: (a) that is reasonably required in tho intorests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or in order to sccure the development or utilization of any property {for a purpose beneficial to the community; (b) that is reasonably required for the purpose of protecting tho rights or freedoms of other persons; (©) that authorizes an officer or agent of the Government of Malawi, a local government suthority or a body corporate established by law for public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the ease may be; (@) that authorizes, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or entry upon any premises by such order, and except s0 far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a demoeratie society. 18, (1) If any person is charged with a criminal offence, then, unless dhe cltye is willnlrawa, the case shall be affurded a fair beating within f reasonable time by an independent and impartial court established by law. (2) Every person who is charged with a criminal offen (), shall be presumed to be innocent until he is proved or has pleaded guilty (b) shall be informed as soon as reasonably practicable, in @ language that ho undorstands and in detail of the naturo of the offence charged; (©) shall be given adequate time and facilities for the preparation of his defence; (@) shall be permitted to defend himself before the court in person or by a legal representative of his own choice;488 Malawi (©) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his bohalf before the court on the same conditions as those applying to witnesses ealled by the prosecution; and (f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge. and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to bo removed and the trial to proceed 1m his absence. (8) When a person is tried for any criminal offence, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be preseribed by law, be given within a reasonable time after judgment » copy for the use of the accused person of any record of the proceedings made by or on behalf of the court. (4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is soverer in degree or deseription than the maximum penalty that might have been imposed for that offence at the time when it was com- mitted, (5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the convietion or acquittal. (6) No person shall be tried for a criminal offence if he shows that hie lias been pardoned for that offence. (7) No person who is tried for a eriminal offence shall be compelled to give evidence at the trial. (8) No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law: Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed. (®) Any court or other adjudicating authority preseribed by law for the detarmination of the existence or extent of any civil right or obligation shall bo established by law and shall be independent and impartial; andMalawi 489 where proceedings for such a determination are instituted by any person before such court or other adjudicating authority, the ease shall be given a fair hearing within a reasonable time. (10) Except-with the agreoment of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public. (11) Nothing in the last foregoing subsection shall provent the court or other adjudicating authority from oxcluding from the proceedings persons other than the parties thereto and their logal representatives to such extent as the court or other authori (@) may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings; or (b) may be empowered by law to do so in the interests of defence, public safety, public order, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceeding: (12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of: (8) subsection (2) (a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts; (b) subsection (2) (@) or 2 (¢) of this section to the extent that the law in question prohibits logal representation in a local court; (c) subsection (2) (c) of this section to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; (@) subsection (5) of this section to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offenve uutwithstauiding any teiel wud cumvictiva o: acquittal of that member under the disciplinary law of that force, s0, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punish- ment awarded him under that disciplinary law. (18) Tn the case of any person who is held in lawful detention, the provisions of subsection (1), subsection 2 (a) and (e) and subsection (8) of this section shall not apply in relation to his trial for a criminal offence under tho law regulating the discipline of persons held in such de- tention. (14) Nothing contained in subsection (2) (d) of this section shall be construed as entitling a person to legal representation at publie expense.490 Malawi (15) In this section “eriminal offence” means a criminal offence under the law of Malawi. 19. (1) Except with his own consent, no person shall be hindered in the enjoyment of his reedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observanes, (2) Except with his own consent (or, if he is @ minor, the consent of his guardian) no person attending any place of education shall be required to roceive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion that is not his own. (8) No religious community or denomination shall be prevented from providing religious instruction for persons of that community or deno- mination in the course of any education provided by that community or denomination. (4) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to this religion or belief. (6) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required: (@) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion ‘without the unsolicited intervention of members of any other religion, ‘and except s0 far as that provision or, as tho case may be, the thing done under the authority thereot is shown not to be reasonably Justitiable in a democratie society. 20. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and infor- mation without interference, freedom to communicate ideas and in- formation without interference (whether the communication to be the public generally or to any perton or class of persons) and freedom from interference with his correspondence. @) Nothing contained in or done under tho authority of any law shall be held to bo inconsistent with or in contravention of this section to the extent that the law in question makes provision:Malawi 491 (8) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or regulating the technical administration or technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or (€) that imposos restrictions upon public officers, ‘and except so far as that provsion or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society. 21. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assombly and association, that is to say, his right to assemble frooly and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests. @) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extend that the law in question makes provision: (8) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or (c) that imposes restrictions upon publi officers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a demooratic society. 22, (1) No person shall be deprived of his freedom of movement, and for the parposes of this section the said freedom means the right to move freely throughout Malawi, the right to reside in any part of Mala- ‘wi, the right to enter Malawi and immunity from expulsion from Malawi. (@) Any restriction on persoh’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section. (8) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision: (@) for the imposition of restrictions on the movement or residence within Malawi of any person that are reasonably required in the interests of defenco, public safety, public order, public morality, or public health or the imposition of restrictions on the acquisition492 Malawi or use by any person of land or other property in Malawi, except s0 far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society ; (b) for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Malawi; (©) {for the imposition of restrictions upon the movement or residence within Malawi of public officers; or (@) for the removal of a person from Malawi to be tried outside Malawi for a criminal offence or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Malawi of which he has been convicted. (4) If any person whose freedom of movement has been restricted by virtue of such a provision as is referred to in subsection (8) (a) of this section so requests at any time during the period of that restriction not earlier than six months after the order was made or six months after he last made such request, as tho case may be, his case shall be reviewed by an independent and impartial tribunal presided over by 4 person, qualified to be enrolled as an advocate in Malawi, appointed by the Chiof Justice: ‘Provided thot a person whose freedom of movement has been restricted by virtue of a restriction which is applicable to persons generally or to ‘general classes of persons shall not make a request under this subsection unless he has first obtained the consent of the High Court, (5) On any review by @ tribunal in pursuance of this section of the case of person whose freedom of movement has been restricted, the tribunal may make recommendations, concerning the necessity or ex- pediency of continuing the resiriction, to the authority by which it ‘was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations. 23. (1) Subject. to the provisions of subsections (4), (6) and (7) of this section, no law shall make any provision that 1s discriminatory either of itself or in its offect. ) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. (8) In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges orMalawi 493 advantages which are not accorded to persons of another such description. (4) Subsection (1) of this section shall not apply to any law so far as that law makes provision (2) for the appropriation of public revenues or other public funds; (b) with respect to persons who are not citizens of Malawi; {¢) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (@) for the application in the case of members of a particular raco or tribe of customary law with respect to any matter to tho ex- clusion of any law with respect to that matter which is applicable in the case of other persons; or (c) whereby persons of any such description as is mentioned in oub- section (8) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society. (8) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that it makes reasonable provision with respect to qualifications for service as a public officer or as a momber of a disciplined force or for tho service of a local government authority or a body corporate established direetly by any law. (6) Subsection (2) of this section shall not apply to anything which is expressly or by nocossary implication authorized to be done by any such provision of lew as is referred to in subsection (4) or (5) of this section. (1) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in quostion makes provision whereby persons of any such description as is mentioned in subsection (8) of this section ‘may be subjected to any restriction an the rights and freedoms guaranteed by sections 17, 19, 20, 21 and 22 of this Oonalitution, being auch « 1e- striction as is authorized by section 17 (2), 19 (5), 20 (9), 21 (2) or 22(8), fs tho case may be. (8) Nothing in subsection (2) of this section shall affect any discrotion relating to the institution, conduet or discontinuance of civil or crimainal proceedings in any court that is vested in any porson by or under this Constitution or any other law. 24, (1) Nothing contained in or done under the authority of an Act of Parliament shall be held to be inconsistent with or in contravention of section 18 or 28 of this Constitution to the extent that the Act au- thorizes the taking, during any period when Malawi is at war or any poriod when a doclaration of a state of public emergeney under section 26498 Malawi of this Constitution is in force, of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period. () Where a person is detained by virtue of such an authorization as is referred to in subsection (1) of this section and as is inconsistent with section 18 of this Constitution the following provisions shall apply (@) Where a person is detained by virtue of such an authorization as is referred to in subsection (1) of this section and as is inconsistent with section 18 of this Constitution the following provisions shall apply: (a) he shall, as soon as reasonably practicable and in any case not more than five days after the commencement of his detention, be furnished with a statement in writing in a language that he under- stands specifying in detail the grounds upon which he is detained; (b) not more than fourteen days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorized; () not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than six months, his case shall be reviewed by an independent and im- partial tribunal established by law and presided over by a person appointed by the Chief Justice; (@) he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; {@) at tho hearing of his case by the tribunal appointed for the review of his case he shall be permitted to appear in porson or by a legal representative of his own choice. (8) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations, concerning the necessity or expediency of continuing his detention, to the authority by which it was ordered but, unless it is otherwise provided by law, dat authority shall uvt be ubliged ly aot ia aceurdauoe with ay such recommendations. (A) Nothing contained in subsection (2) (4) or (2) (e) of this section shall be construed as entitling a person to legal representation at public expense. 25, (1) Subject to the provisions of subsection (7) of this section, if any person alleges that any of the provisions of sections 11 to 24 (inclusive) of this Constitution has been, is being or is likely to be con- travened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress. @) The High Court shall have original jurisdiction:Malawi 405 (@) to hear and detormino any application made by any person in pursuance of subsection (1) of this section; (b) to determine any question arising in the ease of any person which is referred to it in pursuance of subsection (8) of this section, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing tho enforcement of any of the provisions of sections 11 to 24 (inclusive) of this Constitution: Provided that the High Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law. (8) If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of sections 11 to 24 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious. (4) Where any question is referred to the High Court in pursuance of subsection (8) of this section, the High Court. shall give its decision ‘upon the question and the subordinate court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal under this Constitution to the Supreme Court of Appeal or to the Judicial Committee, in accordance with the decision of the Supreme Court of Appeal or, as the case may be, of the ‘Tudicial Committee. (8) Whore any provision of any law is held by a competent court to be inconsistent with any of the provisions of sections 11 to 24 (inclusive) of this Constitution any person detained in custody under that provision may, as of right, make application to a competent superior court for the purpose of questioning the validity of his further detention, notwith- standing that he may previously have appealed against his conviction or sentence or chat suy tinw prescribed for the filing uf such: au appeal may have expired. (6) Parliament may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section. (7) Bales of court making provision with rospect to the practise and procedure of the High Court for the purpose of this section may be made by the person or authority for the time being having power to make res of court with respect to the practice and procedure of that court generally. 26. (1) The Governor-General may at any time, by Proclamation496 Malawi published in the Gazette, declare that a state of public emergency exists {for the purpose of the provisions of this Chapter. (2) A declaration of a state of public emorgency under this section, if not sooner revoked, shall cease to have effect: (a) in the case of a declaration made when Parliament is sitting or has been summoned to meet within five days, at tho expiration of @ period of five days beginning with the date of publication of the declaration; (b) in any other case, at the expiration of a period of twenty-one days beginning with the date of publication of the declaration, unless, before the expiration of that period, it is approved by a resolution passed by the National Assembly. (8) Subject to the provisions of subsection (4) of this section, a dec- laration of a state of public emergency approved by resolution of the National Assembly under subsootion (2) of this section shall continue in force until the expiration of a poriod of six months beginning with the date of its being so approved or until such earlier date as may be specified in the resolution: Provided that the National Assembly may, by resolution, extend its approval of the declaration for periods of not more than six months ata time. (4) The National Assembly may by resolution at any time revoke ‘a declaration of a state of public emergency approved by the Assembly ‘under this section. 27. (1) In this Chapter, unless the context otherwise requires: “contravention,” in relation to any requirement, includes a failure to comply with that requiroment, and cognate expressions shall be con- strued secordingly; “court” means any court of law having jurisdiction in Malawi, other than a court established by a disciplinary law, and includes the Judicial Committee and in sections 12 and 14 of this Constitution a court established by a disciplinary law; ‘disciplinary law” means a law regulating the discipline of any diset- plined foree; “disciplined foree” means: (8) ® naval, military or air force; (b) the Malawi Police Force; (©) a police force established by Parliament; or (2) a prison service; “Jegal representative” means a person entitled to practise in Malawi as an advocate: “member,” in relation to @ disciplined force, includes any person who, under the law regulating the descipline of that force, is subject to that discipline,Malawi an (2) In relation to any person who is a member of a disciplined force raised under a law in force in Malawi, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 12, 14 and 16, (8) In relation to any porson who is © member of disciplined forve raised otherwise than as aforesaid and lawfully present in Malawi, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter. CHAPTER III THE GOVERNOR-GENERAL 28. There shall be a Governor-General and Commander-in-Chief who shall be appointed by Hor Majesty and shall hold offico during Hor Majos- ty’s pleasure and who shall be Her Majesty's represontative in Malawi. 29. Whenover the office of Governor-General is vacant or the holder of the office is absent from Malawi or is for any reason unable to perform the functions conferred upon him by this Constitution, those functions shall be performed by such person as Her Majesty may appoint or, if there is no person in Malawi so appointed and able to perform those fanetions, by the Chief Justice. 30. A person appointed to or assuming tho funetions of the office of Governor-General shall, before entering upon that office, take and sub- seribe the oath of allegiance and such oath for the due execution of his office as may be proscribed by Parliament. CHAPTER IV PARLIAMENT Part I, Composition of Parliament 31. There shall be a Parliament which shall consist of Her Majesty and a National Assembly. 32, The National Assembly shall consist of fifty-three members elected in accordance with the provisions of section 88 of this Constitution. 33. (1) Malawi shall, in accordance with the provisions of section 41 of this Constitution, be divided into general roll constituencies and into special roll constituencies, and each constituency shall elect one member to the National Assembly in such manner as, subject to the provisions of this Constitution, may be presoribed by or under any law.498 Malawi 2) The qualifications and disqualitications for registration as a voter in a general roll constituency and as a voter in a special roll constituency shall be as set out in the Schedule to this Constitution. (8) Every person who is registered in any constituency as a voter in lections of members to the National Assembly shall, unless he is dis- qualified by Parliament from voting in such elections on the grounds of his having been convicted of an offence connected with elections or ‘on the grounds of his having been reported guilty of such an offence by the court trying an election petition or on the grounds of his being in lawfal custody at the date of the election, be entitled s0 to vote in that constituency in accordance with the provisions of any law in that behalf; and no other person may so vote. (4) The registration of voters in elections of members of the National Assembly and the conduct of such elections shall be subject to the direction and supervision of the Electoral Commission. 34. (1) Subject to the provisions of subsection (2) of this section and of section 85 of this Constitution, a person shall be qualified to be clectod as a momber of the National Assembly if, and shall not be so qualified unless, he: (@) is a citizen of Malawi who has attained the age of twenty-one years; and (b) is able to speak and, unless incapacitated by blindness or other physical cause, to read the English language well enough to take an active part in the proceedings of the Assembly. (@) A person shall not be qualified to be elected in a general roll consti~ tueney unless he is an African or an Asian and is registered as a voter in some general roll constituency, and @ person shall not be qualified to be elected in a special roll constituency unless he is registered as a voter in some special roll constituency. 35. (1) No person shall be qualified to be elected as a member of the National Assembly who: (®) is undor s declaration of allegiance to some country other than Malawi; (b) is, under any Iaw in force in Malawi, adjudged or otherwise dec- Jared to be of unsound mind; (0) is under sentence of death imposed on him by any court in Malawi or the former Nyasaland Protectorate or a sentence of imprisonment, (by whatever name ealled) imposed on him by such court or substituted by competent authority for some other sentence imposed on him by such @ cour (@) is detained under a detention order or is subject to a control order or a restriction order or (©) is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any Taw in force in Malawi.Malawi 409 @) Parliament may provide that a person who holds or is acting in any office that is specified by Parliament and the functions of which involve responsibility for, or in connection with, the conduct of any election to the National Assembly or the compilation of any register of voters for the purposes of such an election shall not be qualified to be elected as a member of the Assembly. (8) Parliament may provide that © person who is convicted by any court of any offence that is prescribed by Parliament and that is con- nected with elections of the members of the National Assembly or who is reported guilty of such an offence by the court trying an election petition shall not be qualified to be nominated for election as a member of the Assembly for sueh period (not excoading five years) following his conviction o, as the case may be, following the report of the court as may be so prescribed. @) Parliament may provide that, subject to such exceptions and limitations (if any) as may be preseribed, « person shall be disqualified for membership of the National Assembly by virtue of (@) his holding or acting in any office or appointment that may be prescribed ; (b) his belonging to any of the armed forces of the Crown that may be prescribed; or (6) his belonging to any police foree. 36, (1) Thero shall be a Speaker of the National Assembly who shall be elected by the members of the Assembly from among persons who ‘are members of the Assembly or who are qualified to be elected as such. 2) A Minister or a Parliamentary Secretary shall not be qualified to be elected as Speaker. (8) The Speaker shall vacate his office: (a) if, having beon elected from among the members of the National Assembly, he ceases to be a member of the Assembly otherwise than by reason of dissotution of the Assembly; (b) if any circumstances arise that, if he were not Speaker, would Asquality bia for eloction an such (0) when the Assembly first sits after any dissolution of Parliament; or (@ if he is removed from office by a resolution of the Assembly supported by the votes of not less than two thirds of all the members, thereof. (4) No business shall be transacted in the National Assembly (other than an election to the office of Speaker) at any time when the office of Spoaker is vacant. 37. (1) There shall be @ Deputy Speaker of the National Assembly who sball be elected from among the persons who ere members of the Assembly other than Ministers or Parliamentary Secretaries.500 Malawi @ The members of the National Assembly shall elect a person to the office of Deputy Speaker when the Assembly first sits after any dis- solution of Parliament and, if the office becomes vacant otherwise than by reason of the dissolution of Parliament, at the first sitting of the Assembly after the office becomes vacant, (8) The Deputy Spoaker shall vacate bis office: (a) if he ceases to be a member of the National Assembly; (b) if he becomes a Minister or a Parliamentary Secretary; (0) if ho is elected as Speaker; or (@) if he is removed from office by a resolution of the Assembly supported by the votes of not loss than two thirds of all the members of tho Assombly. 38, A Minister who is not « member of the National Assembly mé attend and take part in the proceedings of the Assembly or of any eo mittee of the Assombly, but nothing in this section shall entitle a person ‘who is not a momber of the Assembly to vote in the Assembly or any of its committees. 39. (1) Evory member of the National Assombly shall vacate his seat in the Assembly upon a dissolution of Parliament. (2) A member of the National Assembly shall vacate his seat in the Assembly: (@) if he coases to be a citizen of Malawi; (b) if he is absont from the sittings of the Assembly for such period and in such circumstances as may be prescribed in the rules of procedure of the Assembly: (©) if he is sentenced by a court in Malawi to death or to imprison- ment (by whatever name called) for a term exceeding twelve months; (@) subject to the provisions of subsection (8) of this section, if any cireumstances arise that, if he were not a member of the Assembly, ‘would causo him to be disqualified for election as such under section 85 (1) (a) () (a) oF (0) of this Constitution or under any law made in pursuance of sectiou 39 (2), 89 (8) or 85 (4) of this Constitution. (8) Parliament may, in order to permit any member of the National Assembly who has been sentenced to death or imprisonment, adjudged or declared to be of unsound mind, adjudged or declared bankrupt or convicted or reported guilty of any offence prescribed under section 85 (8) of this Constitution to appeal against the decision in accordance with any law, provide thet, subject to such conditions as may be pre- soribed by Parliament, the decision shall not have effect for the purposes of this seotion until such time as may be so presoribed. (4) For the purposes of this section two or more sentences of im- prisonment that are required to be served consecutively shall be regarded fas separate sentences if none of those sentences exceeds twelve months,Malawi 501 ‘and if any one of such sentences exceeds that term they shall be regarded as one sentence. 40. (1) There shall be an Electoral Commission which shall consist of Chairman and not less than two or more than four other members. @) The members of the Electoral Commission shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister. (8) A person shall not be qualified to hold the office of a member of the Electoral Commission if he is a Minister, a member of the National Assembly or public officer. (4) Subject to the provisions of this section, a member of the Electoral Commission shall vacate his office: (@) at the expiration of four years from the date of his appointment; or (b) if any ciroumstances arise that, if he were not @ member of the Commission, would cause him to be disqualified for appointment as such. (6) A momber of the Electoral Commission may be removed from office by the Governor-General, acting in accordance with the advice of the Prime Minister, but he may be removed only for inability to dis- charge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior. (6) In the exercise of its functions under this Constitution the Electoral Commission shall not be subject to the direction or control of any other person or authority. 41. (1) For the purposes of elections to the National Assembly Malawi shall: {a) be divided into fifty general roll constituencies; (b) be divided into three special roll constituencies, in such manner as the Electoral Commission, acting with the approval of the National Assembly signified by resolution, may prescribe. (@) So far as appears to the Electoral Commission practicable and subject to subsection (8) of this section: (a) every general roll constituency shall contain the number of voters registered on the general roll that is equal to the electoral quota in respect of the general roll; (b) every special roll constituency shall contain the number of voters registered on the special roll that is equal to the electoral quota in respect of the special roll (8) The Electoral Commission may depart {rom the principles specified in subsection (2) of this section to such extent as it considers expedient in order to take account of: (a) the density of population; (b) the means of communication;502 Malawi () geographical features; and (a) the boundaries of existing administrative areas. (4) The Electoral Commission shall review the boundaries of the general roll constituencies and the boundaries of the spocial roll consti- tuencies at intervals of not less than eight: nor more than ten years, and may alter the boundaries of the general roll constituencies and the boun- aries of tho special roll eonstituoncies in accordance with the provisions of this section. (6) Any alteration of the constituencies under this section shall come into effect upon the next dissolution of Parliament after the alteration hhas been approved by the National Assembly. (6) For the purposes of this section the electoral quota in respect of & roll of voters shall be the number ascortained by dividing the number of voters for the time being registered throughout Malawi on that roll by fifty in the case of the general roll or three in the case of the special roll. 42, (1) The High Court shall have jurisdiction to hear and determine any question whether: (a) any person has been validly elected as a member of the National Assembly or the seat of any such member has become vacant; (b) any person has been validly elected as Speaker of the Assembly from among persons who are not members of the Assembly or, having beon so elected, has vacated the office of Speaker. (2) Parliament may make provision with respect to: (a) the persons who may apply to the High Court for the deter- mination of any question under this section; (b) the circumstances and manner in which and the conditions upon ‘which any such application may be made; and (6) the powers, practice and procedure of the High Court in relation to any such application. (8) The determination by the High Court of any question under this section shall not be subject to appeal. 43, (1) There shall be a Clerk to the National Assembly. () Unless Varliament otherwise provides, the otfice ot the Ulerk to the Notional Assembly and the offices of the members of his staff shall be publie offic 44. In this part of this Chapter: (@) references to a sentence of imprisonment shall be construed ag including @ sentence of imprisonment the execution of which is suspended but not as including a sentence of imprisonment: imn- posed in default of payment of a fines (b) references to a detention order, @ control order or a restriction order are references to a detention order, control order or restric- tion order made under the Preservation of Public Security Ordinance 1960 or any law amending or replacing that Ordinance.Malawi 503 Part 2. Legislation and procedure in National Assembly 45. Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malawi. 46, (1) Parliament may alter any of the provisions of this Constitution ‘or (in $0 far as it forms part of the law of Malawi) any of the provisions of the Malawi Independence Act 1964: Provided that a bill for an Act of Parliament under this section shall not be passed by the National Assembly unless it is supported on the second and third readings by the votes of not less than two thirds of all the members of the Assembly. @) The provisions of this Uonstitution or (im so far as 1t forms part of the law of Malawi) the Malawi Independence Act 1964 shall not be altered except in accordance with the provisions of this section. (8) In this section: (2) references to any of the provisions of this Constitution or the Malawi Independence Act 1964 include references to any law that amends or replaces that provision; and (b) references to the alteration of any of the provisions of this Con- stitution or the Malawi Independence Act 1964 include references, to the omendment, modification or ro-enactment, with or without amendment or modification, of that provision, the suspension or repeal of that provision and the making of different provision in lien of that provision. 47, The Speaker, before assuming the duties of his office, and every member of the National Assombly bofore taking his seat therein, shall take and subseribe before the Assembly the oath of allegiance. 48, There shail preside at any sitting of the National Assembly (a) the Speakers (0) in the absence of the Speaker, the Deputy Speaker; or (0) in the absence of the Speaker and the Deputy Speaker, such member of the Assombly (not being o Ministor or o Parliamontory Secrotary) as the Assembly may elect for that sitting. 49. If objection is taken by any member of the National Assembly present that there are present in the Assembly (besides the person presi- ding) less than one fourth of all the members of the Assembly and, after such interval as may be proscribed in the rules of procedure of the As- sembly, the person presiding ascertains that the number of members present is still less than one fourth of all the members of the Assembly, he shall therenpon adjourn the Assembly. 40. (1) Save as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined by majority of the votes of the members present and voting.508 Malawi (2) The Speaker shall not have an original vote, but if upon any question before the National Assembly the votos are equally divided, he shall have and exercise a casting vote. (8) Any member of the National Assembly, other than the Speaker, shall, when prosiding in the Assembly, retain bis original voto as a member and shall also have and exercise a casting vote where the votes are equally divided. (4) The rales of procedure of the National Assembly may make pro- vision under which a member who votes upon a question in which he has a direct pecuniary interest shall be deemed not to have voted. 41. Any person who sits or votes in the National Assembly knowing or having reasonable grounds for knowing that he is not entitled to do s0 shall be liable to a penalty not exceeding twenty-five pounds or such other sum as may be prescribed by Parliament for each day on which he so sits or votes in the Assembly, which shall be recoverable by action in the High Court at the suit of the Attorney-General 52, (1) Subject to the provisions of this Constitution, the National sembly may regulate its own procedure. (@) The National Assombly may act notwithstanding any vacaney in its membership (including any vacancy not filled when the Assembly first, moots after any dissolution) and the prosence or participation of any person not entitled to be present or to participate in the proceed- ings of the Assembly shall not invalidate those proceedings. 43, The businessof the National Assembly shall be conducted in English. 54. (1) The power of Parliament to make laws shall be exercised by bills passod by the National Assembly and assented to by the Governor- General on behalf of Her Majesty. (@) When « bill is presented to the Govornor-General for assent, he shall signify that he assents or that ho withholds assent. (8) When a bill that has been duly passed is assented to in accordance with the provisions of this Constitution it shall become law and the Governor-General shall thereupon cause it to be published in the Gazette ava low. (4) No law made by Parliament shall come into operation until it has been published in the Gazette but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect. 56. Except upon the recommendation of the Governor-General signified by a Minister, the National Assembly shall not: (@) proceed upon any bill (including any amenduient to a bill) that, in the opinion of the person presiding, makes provision for any of the following purpose: () for the imposition of taxation or the alteration of taxation otherwise than by reduction;Malawi 505 (i) for the imposition of any charge upon the public revenues or public funds of Malawi or the alteration of any such charge otherwise than by reduction; (ii) for the payment, issue or withdrawal from the public revenues or public funds of Malawi of any monies not charged thereon or any increase in the amount of such payment, issue or with- drawal; or (iv) for the composition or remission of any debt due to the Government of Malawi; (b) proceed upon any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding, would be to make provision for any of those purposes; or (6) receive any petition that, in the opinion of the person presiding, requests that provision be made for any of those purposes. Part 3, Summoning, Prorogation and Dissolution 56. (1) Bach session of Parliament shall be held at such place within Malawi and shall commence at such time as the Governor-General may appoint. @) There shall be a session of Parliament at least once in every year s0 that a. period of twelve months shall not intervene botween the last sitting of Parliament in one session and the first sitting thereof in the next (8) Whenever Parliament is dissolved a general election of members of the National Assembly shall be held within sixty days of the date of the dissolution and a session of Parliament shall be appointed to commence within thirty days of tho date of that election. (4) If, after a dissolution and before the holding of the general election of mombers of the National Assembly, the Prime Minister advises the Governor-General that, owing to the existence of o state of war or of state of emergency in Malawi, it is necessary to recall Parliament, the Governor-General shall summon the Parliament that hao been dissolved to meet, but, unless the life of Parliament is extended under the provisions of section 57 (4) of this Constitution, the general election of members of the ‘National Assembly shall proceed and the Parliament that has been recalled shall, if not sooner dissolved, again stand dissolved on the date appointed for the nomination of candidates in that general eloction. 47. (1) The Governor-General may at any time prorogue Parliament. @) The Governor-General, acting in accordance with the advice of the Prime Minister, may at any time dissolve Parliament: Provided that: (@) if the Prime Minister recommends a dissolution and the Governor- General considers that the government of Malawi can be carried506 Malawi on without a dissolution and that « dissolution would not be in the interests of Malawi, the Governor-General may refuso to dissolve Parliament; () if the National Assembly passes a resolution that it has no confidence in the Government of Malawi and the Prime Minister does not within three days either resign from his office or advise a dissolution, the Governor-General may dissolve Parliament; and (c) if the office of Prime Minister is vacant and the Governor- General considers that there is no porspect of his being able within a reasonable time to appoint to that office & person who can command the support of a majority of the members of the National Assembly, the Governor-General may dissolve Parliament. (6) Subject to the provisions of subsection (4) of this section, Parliament, ‘unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution and shall thon stand dissolved. (4) At any time when Malawi is at war, Parliament may from time to time extend the period of five years specified in subsoction (8) of this seotion for not more than twelve months at a tite: Provided that the life of Parliament shall not be extended under this subsection for more than five years. CHAPTER V EXECUTIVE POWERS 58. (1) The executive authority of Malawi shall vest in Her Majesty. (2) Subject to the provisions of this Constitution, the executive authority of Malawi may be exercised on behalt of Her Majesty by the Governor-General, either directly or through officers subordinate to him. (8) Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the Governor-General. 59. (1) There shall be a Prime Minister who shall be appointed by the Governor Goneral. @) The office of Attorney General shall be the office of a Minister. (8) There shall be, in addition to the office of Prime Minister and the office of Attorney Gonoral, such other offices of Minister as may be established by Parliament or, subject to tho provisions of any Act of Parliament, by the Governor-General, acting in accordance with the advice of the Prime Minister. (4) The Governor-General shall appoint as Prime Minister the member of the National Assembly who appears to him best able to command the support of the majority of tho mombers of the Assembly and shall, ‘acting in accordance with the advice of the Prime Minister, appoint the other Ministers from among the members of the Assembly or, subjectMalawi 507 to the provisions of subsection (6) of this section, from among persons who ‘are not members of the Assembly. (5) A person who is not a member of the National Assembly shall not be appointed to the office of a Minister at any time when three other offices of Minister are held by persons who are not members of the As- sembly. (6) For the purposes of this section, during any period when Par- iament is dissolved a person who was a member of the National Assembly immediately before that dissolution shall be regarded as continuing as a member of the Assombly. 60. (1) The Governor-General may remove the Prime Minister from office: (8) if a vote of no contidence in the Government of Malawi is passed by the National Assembly; or (b) if at any time between the holding of » genoral election and the first sitting of the Assembly thereafter the Governor-General con- siders that, in consequence of changes in the membership of the Assembly resulting from that election, the Prime Minister will not be able to command the support of a majority of the members of the Assembly; Provided that the Governor-General shall not remove the Prime Minister from office when a vote of no confidence has been passed by the Assembly unless three days have elapsed and the Governor-General has decided not to dissolve Parliament under section 57 of this Consti- tation. (@) The office of the Prime Minister or other Minister who is a member of the National Assembly shall become vacant: (a) if the holder of the office ceases to be a member of the National Assembly otherwise than by reason of a dissolution of Parliament; or (©) if, at the first sitting of the Assembly after any dissolution of Parliament, the holder of the office is not a member of the As- sembly. (@ Tho ollie of & Ministor (othor thon tho Prime Minister) shall become vacant: (@) if the Governor-General, acting in accordance with tho advice of the Prime Minister, so directs; (b) if the Primo Minister resigns from office within three days after the passage by the National Assembly of a resolution of no confidence in the Government of Malawi or is removed from office under sub- section (1) of this section; or (©) upon the appointment of any person to the office of Prime Minister. 61. (1) There shall be @ Cabinet of Ministers, consisting of the Prime Minister and the other Ministers.508 Malawi @ The funotion of the Cabinet shall be to advise the Governor- General in the Government of Malawi and the Cabinet shall be collectively responsible to Parliament for any advice given to the Governor-General by or under the general authority of the Cabinet and for all things dono by or under the authority of any Ministor in the execution of his office. (8) The provisions of subsection (2) of this section shall not apply in relation to: (8) the appointment and removal from office of Ministers and Parliamentary Secretaries, the assigning of responsibility to any Minister under section 62 of this Constitution or the authorization of another Minister to perform the functions of the Prime Minister during absence or illness; (b) the dissotution of Parliament; and + (0) the matters referred to in section 72 of this Constitution (wbich relates to the prerogative of mercy). 62. (1) The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister or any other Minister responsibility for any business of the govern- ment of Malawi, including tho administration of any department of government. ¥ (Q) The Attorney General shall be the principal legal adviser to the Governmont of Malawi. 63. (1) Whenever the Prime Minister is absent from Malawi or is by reason of illness unable to perform the funetions conferred on him by this Constitution, the Governor-General may authorize some other Minister to perform those functions (other than the functions conferred by this section) and that Minister may perform those functions until his authority is revoked by the Governor-General. 2) The powers of the Governor-General under this section shall be exercised by him in accordance with the advico of the Prime Minister: Provided that if the Governor-General considers that it is impracticable ty obluia dhe udvive uf Ue Prime Minister uwing to hie abseuce oF illness hhe may exercise those powers without that advice. 64. (1) In tho exercise of his functions the Governor-General shall act in accordance with the advice of the Cabinet or @ Minister acting under the general authority of the Cabinet except in casos where he is required by this Constitution or any other law to act in accordance with the advice of any person or authority other than the Cabinet: Provided that the Governor-General shall act in accordance with his own deliberate judgment in the performance of the following functions (@) in the exercise of the powers relating to the dissolution of Parlia- ‘ment conferred upon him by the proviso to section 67 (2) of this Constitution;Malawi 509 (b) in the exercise of the power to appoint the Prime Minister conferred upon him by section 69 (4) of this Constitution; (0) in the exercise of the power to remove the Prime Minister from office conferred upon him by section 60 (1) of this Constitution; (a) in the exercise of the powers conferred on him by section 63 of this Constitution (which relates to the performance of the functions of the Prime Minister during absence or illness) in the circumstances described in the proviso to subsection (2) of that section; and (6) in signifying his concurrence, for the purposes of section 95 (4) of this Constitution, in appointments to offices on his personal staff. (2) Where the Governor-General is required by this Constitution to act in accordance with the advice of any person or authority, the question whether he has rocaived, or acted in accordance with, such advice in any case shall not bo inquired into in any court. 65. The Prime Minister shall keop the Governor-General fully informed concerning the general conduct of the government of Malawi and shall fornish him with such information as he may require with respect to any particular matter relating to the government of Malawi. 66. (1) The Governor-General, acting in accordance with the advice of the Prime Minister, may appoint Parliamentary Socrotaries from among the members of the National Assembly to assist Ministers in the per- formance of their duti Provided that, if occasion arises for making appointments while Parliament is dissolved, a person who was a momber of the Assembly immediately before the dissolution may be appointed as a Parliamentary Secretary. @) The office of a Parliamentary Secretary shall become vacant: smnor-General, acting in accordance with the advice of jor, 30 directs; (b) if the Prime Minister resigns from office within three days after the passage by the National Assembly of a resolution of no con- fidence in the Government of Malawi or is removed from office under section 60 (1) of this Constitutions (¢) upon the appointment of a person to the office of Prime Minister; (d) if the holder of the office ceases to be a member of the Assembly otherwise than by reason of a dissolution of Parliament; or (©) if, at the first sitting of the Assembly after any dissolution of Parliament, the holder of the office is not # member of the Assembly. 67. A Minister or a Parliamentary Secretary shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament. 68. Where any Minister has been charged with responsibility for any department of government, he shall exercise general direction and510 Malawi control over that department and, subject to such direction and control, the department shall be under the supervision of a Permanent Secre- tary, whose office shall be a public office: Provided that two or more government departments may be placed under the supervision of one Permanent Secretary and one government department may be placed under the supervision of two or more Per- ‘manent Seeretari 69. (1) There shall be a Secretary to the Cabinet whose office shall be a publie office. @) The Secretary to the Cabinet shall have charge of the Cabinet office and shall be responsible, in accordaneo with such instruction as may be given to him by the Prime Minister, for orranging the business for, and Keeping the minutes of, the Cabinet and for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the Prime Minister may direct. 70. (1) There shall be a Director of Public Prosecutions, whose office shall be a publi office. (@) The Director of Public Prosecutions shall have power in any case {in which he considers it desirable so to do: (a) to institute and undertake criminal proceedings ogainst 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 such criminal proceedings that have been instituted or undertaken by any other person or authority ; and (6) to discontinue at any stage before judgment is delivered any such eriminal proceedings instituted or undertaken by himself or any other person or authority. (8) The powers of the Director of Public Prosecutions under sub- section (2) of this section may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions. (@) The powers conferred on the Director of Publie Prosecutions by subsections (2) (b) and (c) of this section shall be vested in him to the exclusion of any other person or anthority: Provided that where any other porson or authority has instituted criminal proceedings, nothing in this subsection shall provent the with- drawal of those proceedings by or at the instance of that person or authority and with the leave of the court. (8) For the purposes of this section, any appeal from any judgment in any criminal procoodings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court in Malawi or to the Judicial Committee shall be deemed to be part of those proceedings:Malawi su Provided that the power conferred on the Director of Publie Prose- cutions by subsection (2) (c) of this section shall not be exercised in relation to any appeal by person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such ‘person. (6) In the exercise of the powers conferred on him by this soction, ‘the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority Provided that where the exercise of any such power in any caso may, in the judgment of the Director, involve general considerations of public policy the Director shall, before deciding whether to exercise that power, bring the ease to the notice of the Attorney General and shall have regard to any views expressed by the Attorney General relating to those eon- siderations. 71, Subject to the provisions of this Constitution and of any Act of Parliament, the Governor-General may constitute offices for Malawi, make appointments to any such office and terminate any such appoint- ment. 72, (1) The Governor-General may: (@) grant to any person concerned in or convicted of any offence a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that. person for any offence; (©) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or (@) remit the whole or part of any punishment imposed on any person for an offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence. ) Subject to the provisions of subsection (B) of this section, the powers of the Governor-General under subsection (1) of this section shall be exercised by him acting in accordance with the advice of such Minister as aay Le designated in dha behalf Ly te Guvein:-Geuecal, acting in accordance with the advice of the Primo Minister. (8) In relation to porsons convicted by courts-martial, the Governor- General, acting in accordance with the advice of the Prime Minister, may designate a Minister other than the Minister designated under subsection (2) of this section, and at any time when there is anothor Minister so designated the powersof the Governor-General undorsubseetion (1) of this section shall, in relation to such porsons, bo oxoreisod in ac- cordance with the advice of that other Minister. 73. There shall be an Advisory Committee on the Prerogative of Merey which shall consist of the Minister for the time being designated under section 72 (2) of this Constitution, who shall be Chairman, and suchBie Malawi other Ministers as may be designated by the Governor-General, acting in ‘accordance with the advice of the Prime Minister. 74, (1) Where any person has been sentenced to death (otherwise than by a court-martial) for any offence, the Minister for tho time being designated under section 72 (2) of this Constitution shall cause a written report of the case from the trial judge, together with such other in- formation derived from the record of the case or elsewhere as he may require, to be considered at meeting of the Advisory Committee; and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 72 (1) of this Constitution. (2) The Minister for the time being designated under section 72 (2) ‘of this Constitution may consult with the Advisory Committee before tendering any advice to the Governor-General under that subsection but the Minister shall not be obliged to act in accordance with the advice of the Committee (8) The Advisory Committee may regulate its own procedure. CHAPTER VI THE JUDICATURE Part 1. The High Court 7. (1) There shall be a High Court for Malawi which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any Iaw and such jurisdiction and powers as may be conferred on it by this Constitution or any other low. (2) The judges of the High Court shall be: (a) the Chief Justice; (b) such number of other judges, not being less than two (herein- after referred to as “the puisne judges”), as may be prescribed by Parliament. (8) The office of a puisne judgo shall not be abolished while there is a substantive holder thereof. (4) The High Court shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court, 76. (1) The Chief Justice shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister. (2) The puisne judges shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial Service Commission. (8) (a) A person shall not be qualified for appointment as a judge of the High Court unless:Malawi ois () he is, or has been, a judge of « court having unlimited jurisdic- tion in civil and criminal matters in some part of the Common- wealth or in the Republic of Ireland, or a court having jurisdiction in appeals from any such court; or (Gi) he is entitled to practise as an advocate in such a court and hhas been entitled for not less than five yoors to practise as an advocate or a solicitor in such a court. (0) For the purposes of this subsection, a person shall bo regarded as entitled to practise as an advocate or a solicitor if he has been called, enrolled or otherwise admitted as such (and has not sub- sequently boon disbarred or removed from the roll of advocates or solicitors) notwithstanding that: {Q) he holds or acts in. any office the holder of whieh is, by reason of his office, precluded from practising in a court; or (i) he does not hold a practising certificate or has not satisfied any other ike condition to his being permitted to practise. (4) If the oftice of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the functions of his office, then, until ‘person has been appointed to and has assumed the functions of that office, or until the person holding that office has resumed those functions, 1s the ease may be, those functions shall be performed by such one of the Justices of Appeal or the puisne judges or such other person qualified for appointment as a judge of the High Court as the Governor-General, acting in accordance with the adviee of the Prime Minister, may appoint: Provided that a person who is not a Justice of Appeal or a puisne judge may be so appointed notwithstanding that he has attained the ‘age presoribed for the purposes of section 77 (1) of this Constitution. (8) If the oftice of any puisne judge is vacant or if any such judge is appointed to act as Chief Justice, or is for any reason unable to perform the functions of his office, or if the Chief Justice advises the Governor- Genoral that he is satisfied that the state of business in the High Court requires that the number of judges of the court should be temporarily increased, the Governor-General, acting in accordance with the advice of the Judicial Servico Commission, may appoint a person qualified for ap- pointmentas. judgeof the High Court to act as. puisne judge of that court: Provided that a person may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 77 (1) of this Constitution. (6) Any person appointed under subsection (6) of this section to act a8 & puisne judge shall, subject to the provisions of section 77 (8) and 7 (4) of this Constitution, continue to act. for the period of his appoint- ment or, if no such period is specified, until his appointment is revoked by the Governor-General, acting in accordance with the advice of the Tudicial Service Commission:ou Malawi Provided that the Governor-General, acting in accordance with the advice of the Judicial Service Commission, may pormit a person whose appointment to act as a puisne judge has expired or been revoked to continue to act aa such a judge for such period as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him previously thereto. 77, (1) Subject to the provisions of this section, a person holding the office of a judge of the High Court shall vacate that office on attaining the prescribed age: Provided that the Governor-General, acting in accordance with the advice of 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 judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age. () A person holding the office of judge of the High Court may be removed from office only for inability to perform the functions of his offiee (whether arising from infirmity of body or mind or from any other cause) or for misbehavior, and shall not be so removed except in accordance with the provisions of this section. (8) A judge of the High Court shall be removed from office by the Governor-General if the question of his removal has been referred to the Judicial Committee under subsection (4) of this section and the Judicial Committee has advised the Governor-General that the judge ought to be removed from office for inability as aforesaid or for misbehavior. (A) If the Prime Minister represents to the Governor-General that the question of removing a judge under this section ought to be in- vestigated, then (@) the Governor-General shall appoint a tribunal, which shall eon- sist of a Chairman and not less than two other members, selected by the Governor-General, acting in accordance with the advice of the Prime Minister, from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or & court having jurisdiction in appeals from any such court; (b) the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and recommend to the Governor- General whether he should request that the question of the removal of that judge from office should be referred by him to the Judicial Committee; and (©) if the tribunal so recommends, the Governor-General shall refer the question to the Judicial Committee which shall then advise the Governor-General thereon. (6) If the question of removing a judge from office has been referredMalaset 516 to a tribunal under subsection (4) of this section, the Governor-General, acting in accordance with the advice of the Prime Minister, may suspend ‘the judge from performing the functions of his office, and any s suspension may at any time be revoked by the Governor-General, acting in accordance with the advice of the Prime Minister, and shall in any case cease to have effect: (@) if the tribunal recommends to the Governor-General that the question of the removal of the judge from office should not be referred to the Judicial Committee; or (b) if the Judicial Committee advises the Governor-General that tho judge ought not be removed from office, (6) The prescribed age for the purposes of subsection (1) of this section shall be the age of sixty-two years or such other age as may be prescribed by Parliament: Provided that « law made by Parliament, to the extent that it alters the age at which a judge of the High Court shall vacate his office, shall not have effect in relation to a judge after his appointment unless he consents that it should have effect. (7) The provisions of this section shall be without prejudice to the provisions of section 76 (6) of this Constitution. 78. A judge of the High Court shall not enter upon the duties of his office unioss he has taken and subscribed the oath of allegiance and such ‘oath for the due execution of his office as may be prescribed by any law. Part 2. The Supreme Court of Appeal 79. (1) There shall be a Supreme Court of Appeal which, subject to the provisions of this Constitution, shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law. (2) The judges of the Supreme Court of Appeal shall be: (2) the Chief Justice, as President; (b) such number of Justices of Appeal (if any) as may be prescribed by Porliament; (©) the puisne judges for the time being of the High Court, (8) The office of a Justice of Appeal shall not be abolished while there is a substantive holder thereof. (4) The Supreme Court of Appeal shall be e superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such court. (5) When the Supreme Court of Appeal is determining any matter, other than an interlocutory matter, it shall be composed of an uneven number of judges, not being less than three. (6) ‘The provisions of sections 76 (2), 76 (8), 76 (5), 76 (6), 77 and 78 of this Constitution shall apply in relation to # Justice of Appeal as they apply in relation to a puisne judge of the High Court.516 Malawi Part 3. Appeals 80. (1) An appeal shall lie from decisions of the Supreme Court of Appeal to the Judicial Committee as of right in the following cas (@) where the matter in dispute on the appeal to the Judicial Com- mittee is of the value of £500 or upwards or where the appeal involves directly or indirectly a claim to or quostion respecting property or a right of the value of £500 or upwards, final decisions in any civil proceedings; (b) final decisions in proceedings for dissolution or nullity of marriage; (c) final decisions in any civil or criminal proceedings on questions as to the interpretation of this Constitution; and (a) in such other eases as may be prescribed by Parliament, (2) An appeal shall lie from decisions of the Supreme Court of Appeal to the Judicial Committee with the leave of the Supreme Court of Appeal in tho following cases: (a) where in the opinion of the Supreme Court of Appeal the question involved in the appeal is one that, be reason of its great general public importance or otherwise, onght to be submitted to the Judicial Committee, decisions in any civil proceedings; and () in sneh othor eases as may be prescribed by Parliament. (8) An appeal shall Tie to the Judicial Committes with the special leave of the Judicial Committee from decisions of the Supreme Court of Appeal given in any civil or criminal matter. 81. (1) Subject to the provisions of section 42 (8) of this Constitution, ‘an appeal shall lie as of right to the Supreme Court of Appeal from de- cisions of the High Court in which if the decision were a decision of the Supreme Court of Appeal an appeal would lie as of right to the Judicial Committee under section 80 (1) of this Constitution. (2) An appeal shall lio as of right to the Supreme Court of Appeal from final decisions of the High Court in exercise of the jurisdiction conteerel upon Ute High Gurl by seolivn 26 uf Unis Coutituion 82, An appeal shall lie as of right to the High Court from final de- cisions given by any subordinate court in any ease in which, if the decision of the subordinate court were a decision of the Supreme Court of Appeal, ‘an appeal would lie as of right to the Judicial Committee under section 80 (1) of this Constitution: Provided that an appeal shall not lie direct to the High Court from a decision given by a subordinate court in any such case if, under any law, an appeal lies as of right from that decision to another subordinate court. 83. (1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any court to which this section applies and may make such orders, issue such writs and givo such directions asMalawi air it may consider appropriate for the purposes of ensuring that justice is duly administered by any such court. @) The Chief Justice may make rales with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (1) of this section. (@) This seotion applies to any subordinate eourt (other than a local court) and to such local courts and such courts-martial as may be pro- soribed by Parliament. $4, (1) The provisions of the Judicial Committee Act 1883 and of ‘any rales made thereunder from time to time shall apply in relation to proceedings before the Judicial Committeo under this Chapter but only in so far as those provisions relate to the powers of the Judicial Committee ‘and the procedure to be adopted with respect to such proceedings and for ‘that purpose they shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary by reason of the nature of those proceedings or otherwise to bring them into conformity with the provisions of this Constitution. (2) Subject to the provisions of this Chapter, provision may be made by or under an Act of Parliament regulating the procedure to be adopted by the Supreme Court of Appeal with respect to any appeal to the Judicial Committee under this Chapter or by the parties to any such appeal. (8) Any decision given by the Judicial Committee in any appeal under this Chapter shall be enforced in like manner asi it were a decision of the court from whose’ decision the appeal to the Judicial Committee was made. (4) Subject to ‘the provisions of subsection (8) of this section, the Judicial Committee shall, in relation to any appeal to it under this Chapter in any ease, havo all the jurisdiction and powers possessed in relation to that ease by the Supreme Court of Appeal. Part 4, Judicial Service Commission 85. There shall be a Judicial Service Commission which shall consist of: (a) the Uinef Justice, who shall be Unatrman; (b) the Chairman of the Public Service Commission or such other ‘member of that Commission as may for the time being be designated in that behalf by the Chairman of that Commission; and (c) such Justice of Appeal or puisne judge as may for the time being bbe designated in that behalf by the Governor-General, acting in accordance with the advice of the Chief Justice, 86. (1) Power to appoint persons to hold or act in offices to which this section applies (including power to confirm appointments) to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Judicial Service Commission.518 Malewi (2) The Judicial Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission, any judge of the High Court, or to any person holding or acting in any office to which this section applies. (8) The offices to which this section applios are: (@) the office of Registrar or Deputy Registrar of the Supreme Court of Appeal or of the High Court; (b) the office of Resident Magistrate or Magistrate; or (@) such other offices of president or member of any court of law or connected with any court of law as may be prescribed by Parliament. CHAPTER VII FINANCE 87. (1) All revennes or other monies raised or received for the purposes of the Government of Malawi shall be paid into tho public funds of Malawi. (2) No money shall be withdrawn from any public fund of Malawi for the purposes of meeting any expenditure except upon the authority of a warrant under the hand of the Minister responsible for finance. (8) No such warrant shall be issued for the purposes of meeting any expenditure unles (@) the exponditure is charged upon the revenues or public funds of Malawi by this Constitution or any other law; (b) the expenditure has been authorized for the financial year during which the withdrawal is to take place: (j) by an Appropriation Act; or Gi) by asupplementary Appropriation Actor aresolution approving ‘2 supplementary estimate passed in accordance with the provisions of section 88 (8) of this Constitution; or (©) the expenditure has been authorized in accordance with the provisions of section 89 or 90 of this Constitution. (4) No money shall be withdrawn from the public funds of Malawi {for a purpose other than the purpose of meeting expenditure: (@) unless the issue of that money is authorized by or under a law; and (b) excopt in the manner prescribed by Parliament. 88. (1) The Minister responsible for finance shall cause to be prepared ‘and Isid before the National Assembly, before ot not later than thirty days after the commencement of each financial year, estimates of the revenues and expenditure of Malawi for that financial year. (@) The heads of expenditure contained in the estimates for a financial year (other than expenditure charged upon the revenues of Malawi byMalawi 519 this Constitution or any Act of Parliament) shall be included in a bill o bills to be known as Appropriation bills which shall be introduced into the National Assembly to provide for the issue from the public funds of Malawi of the sums necessary to meet that expenditure and the ap- ‘propriation of those sumus for the purposes specified therein, (8) Itin respect of any financial year it is found: (a) that the amount appropriated by an Appropriation Act for the purposes included in any heed of expenditure is insufficient or that a need has arisen for expenditure for a purpose for which no ammount, hhas been appropriated by any Appropriation Act; or (b) that any monies have been expended on any head of expenditure in excess of the amount appropriated for the purposes included in that head by an Appropnation Act or for & purpose for which no amount has been appropriated by any Appropriation Act, ‘a supplementary estimate showing the sums required or spent shall be laid before the National Assembly and the heads of expenditure shall be included in a supplementary Appropriation bill, or in # motion ‘or motions approving such expenditure, which shall be introduced into the Assembly. (4) Where any supplementary expenditure has been approved in a financial year by resolution of the National Assembly in accordance ‘with the provisions of subsection (8) of this section, a supplementary Appropriation bill shall be introduced in the National Assembly, not later than six months after the commencement of the financial year next following, providing for the appropriation of the sums so approved. 89. Parliament may make provision under which, if the Appropriation ‘Acts in respeet of any financial year have not eome into operation by the beginning of that financial year, the Minister responsible for finance ‘may authorize the withdrawal of monies from the public funds of Malawi for the purpose of mesting expenditure necessary to carry on the services of the Government until the expiration of four months from the beginning of that financial year or the coming into operation of the Appropriation ‘Acts, whichever ia the onslicr. 90. (1) Parliament may make provision for the establishment of a Contingencies Fund and for authorizing the Minister responsible for finance, if satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists, to make advances from that Fund to meet that need. (2) Where any advance is made from the Contingencies Fund, a supplementary estimate shall be presented a soon as possible for the purpose of replacing the amount so advanced. 91. (1) There shall be paid to the holders of the offices to which this section applies such salary and such allowances as may be preseribed by Parliament,520 Malawi (2) The salaries and any allowances payable to the holders of the offices to which this section applies shall be a charge on the revenut of Malawi. (3) The salary payable to the holder of any office to which this section applies and his terms of office, other than allowances, shall not be altered to his disadvantage after his appointment. (4) Where a person's salary or terms of office depend upon his option, the salary or terms for whieh he opts shall, for the purposes of subsection (8) of this section, be deemed to be more advantageous to him than any others for which he might have opted. (5) This section applies to the offices of the Governor-General, judge of the Suprome Court of Appeal, jadge of the High Court, mamber of the Public Service Commission, member of the Police Service Com- mission, the Director of Public Prosecutions and the Auditor-General. 92, (1) There shall be charged on the revenues and public funds of Malawi all debt charges for which Malawi is liable. (2) For the purposes of this section debt charges include intorest, sinking fund charges, the repayment or amortization of debt, and all expenditure in connection with the raising of loans on the security of the revennes of the former Nyasaland Protectorate or of Malawi and ‘on the service and redemption of debt thereby created. 93. (1) There shall be an Auditor-General whose office shall bea public office. @ The public accounts of Malawi and of all officers, courts and authorities of the Government of Malawi shall be audited and reported on by the Auditor-General and for that purpose the Auditor-General or any person authorized by him in that behalf shall have access to all books, records, reports and other documents relating to those accounts. (8) The Auditor-Gonoral shall submit his reports to the Minister responsible for finance, who shall cause them to be laid before the National Assembly. (4) In the exercise of his functions under this Constitution the Auditor- General shall not be subject to the direction or control of any other person or authority. CHAPTER VIII THE PUBLIC SERVICE 94, (1) There shall be a Public Service Commission which shall consist of a Chairman and not less than throe nor more than five other members. @) The members of the Public Service Commission shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister.Malawi 521 (8) A person shall not be qualified for appointment as a member of the Public Service Commission if he is Minister, a member of the National Assembly or a public officer. (4) Subject to the provisions of this section, the office of a member of the Publie Service Commission shall become vacant: (a) at the expiration of four years from the date of his appointment; (©) if any circumstances ariso that, if he were not a member of the Commission, would cause him to be disqualified for appointment as such. (5) A member of the Public Service Commission may be removed from office by the Governor-General, acting in accordance with the advice of the Prime Minister, but he may be removed only for inability to discharge the functions of his offiee (whether arising from infirmity of body or mind or any other cause) or for misbehavior. (6) If the office of Chairman of the Public Sorvice Commission is vacant or if the person holding that office is for any reason unable to perform the funetions of his 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 ease may be, those functions shall be performed by such one of the other members of the Commission as may be designated in that behalf by the Governor-General, acting in accordance with the advice of the Prime Minister. (7) If at any timo there are less than three members of the Public Service Commission besides the Chairman or if any such member is appointed to act as Chairman or is for any reason unable to perform the functions of his office, the Governor-General, acting in accordance ‘with the advice of the Prime Minister, may appoint a person who is qualified for appointment as a member of the Commission to act a5 a member, and any porson so appointed shall, subject to the provisions of subsection (4) of this section, continue to act until the office in which he is acting is filled or, as the case may, until the holder thereof resumes ins functions or until his appointment t0 act ts revoked by the Governor- Genoral, acting in accordance with the advice of the Prime Minister. 95. (1) Subject to the provisions of this Constitution, power to appoint persons to hold or act in any offices in the public service (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Public Service Commission. (2) The Public Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the Commission or to any publie officer. (8) The provisions of this section shall not apply in relation to any of the following offica2 Malawi (@) the office of any judgo of the Supreme Court of Appeal or of any judge of the High Court; (b) the offices of Director of Public Prosecutions or Auditor-General; (6) any office to which section 86 (which relates to judicial offices), section 99 (which relates to the offices of representatives of Malawi abroad) or section 100 of this Constitution (which rolates to the offices of Permanent Secretaries and the office of the Secretary to the Cabinet) applies; or (@) any office in the Malawi Polico Force. (4) No porson shall be appointed under this section to or to act in any offiee on the personal staff of the Governor-General except with the concurrence of the Governor-General. (6) Before exercising any of its powors in relation to the Clerk or Clerk-Assistant of the National Assembly, the Public Service Com- ‘mission shall consult the Speaker of tho Assembly. (6) Botore tho Public Servico Commission appoints to or to act in any publie office any person holding or acting in any office the power to make appointments to which is vested by this Constitution in the Judicial Service Commission or the Police Service Commission, it shall consult that Commission. 96, (1) Power to appoint persons to hold the office of Director of Publie Prosecutions shall vest in the Governor-General, acting in ac- cordance with the advice of the Prime Ministor. 2) A person shall not be qualified for appointment to hold or to act in the office of Director of Public Prosecutions unless he is qualified to be appointed as a judge of the High Court. @) If tho office of Dirootor of Public Prosecutions is vacant or if the Director of Public Prosecutions is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Prime Minister, may appoint a person to act as Director of Public Prosecutions, and! any person so appointed shall, subject to the provisions of sections 98 (1), 98 (8) and 98 (6) of this Consti- ‘ution, continue to act until a person has been appointed to the otfice of Director of Public Prosecutions and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting hhas resumed those functions. (4) Bofore tondering any advice for the purposes of this seetion, the Prime Ministor shall consult tho Public Service Commission. 97. (1) Power to appoint persons to hold the office of Auditor-General shall vest in the Governor-General, acting in accordance with the advice of the Prime Minister. (2) If the office of Auditor-General is vacant or if the Auditor-General is for any reason unable to exercise the functions of his office, the Governor- General, acting in accordance with the advice of the Prime Minister,