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Malawi

Electoral Commission Act

Chapter 2:03

Legislation as at 31 December 2014

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Electoral Commission Act
Contents
Part I – Preliminary ............................................................................................................................................................................................ 1

1. Short title .................................................................................................................................................................................................... 1

2. Interpretation ............................................................................................................................................................................................. 1

Part II – Status and membership of the Commission ............................................................................................................................ 1

3. Legal personality and capacity of the Commission ..................................................................................................................... 1

4. Appointment of members of the Commission .............................................................................................................................. 1

5. Eligibility for appointment to the Commission ............................................................................................................................ 2

6. Independence of the Commission ..................................................................................................................................................... 2

7. Committees of the Commission .......................................................................................................................................................... 2

Part III – Functions and powers of the Commission .............................................................................................................................. 2

8. Functions and powers of the Commission ..................................................................................................................................... 2

9. Delegation of powers and functions ................................................................................................................................................ 4

10. Vacancy in the membership of the Commission ........................................................................................................................ 4

Part IV – Meetings of the Commission ....................................................................................................................................................... 4

11. Meetings of the Commission ............................................................................................................................................................ 4

Part V – Management ........................................................................................................................................................................................ 4

12. Appointment of Chief Elections Officer ........................................................................................................................................ 4

13. Appointment of staff of the Commission ..................................................................................................................................... 5

14. Vacancy where employee becomes candidate in the elections ............................................................................................ 5

Part VI – Financial provisions ......................................................................................................................................................................... 5

15. Funds of the Commission ................................................................................................................................................................... 5

16. Books and other records of accounts, audit and reports of the Commission .................................................................. 6

17. Holdings of funds of the Commission ............................................................................................................................................ 6

18. Financial year .......................................................................................................................................................................................... 6

Part VII – Miscellaneous ................................................................................................................................................................................... 7

19. Duty to co-operate ................................................................................................................................................................................ 7

20. Legal representation ............................................................................................................................................................................. 7

21. Publicity ..................................................................................................................................................................................................... 7

22. Regulations ............................................................................................................................................................................................... 7

Part VIII – Transitional provisions ................................................................................................................................................................. 7

23. Savings ....................................................................................................................................................................................................... 7

24. Transfer of assets, etc. ......................................................................................................................................................................... 8

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Electoral Commission Act Malawi

Malawi

Electoral Commission Act

Chapter 2:03
Commenced on 3 July 1998

[This is the version of this document as it was at 31 December 2014 to 1 November 2018.]

[Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O.
1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]

[11 of 1998; 16 of 2010; 11 of 2013]

An Act to make provision for the appointment of members of the Electoral Commission; for the
establishment of a Secretariat for the Electoral Commission; and for matters incidental thereto and
connected therewith

Part I – Preliminary

1. Short title
This Act may be cited as the Electoral Commission Act.

2. Interpretation
In this Act, unless the context otherwise requires, the several words and expressions used in this Act shall
have the same meanings assigned to them in the Constitution and the Parliamentary and Presidential
Elections Act and the following additional words shall have the following meaning—

[Cap. 2:01]

“Chief Elections Officer” means the Chief Elections Officer appointed under section 12.

Part II – Status and membership of the Commission

3. Legal personality and capacity of the Commission

The Commission shall be a body corporate with perpetual succession and a common seal and be capable of
—

(a) acquiring, holding and disposing of real and personal property;

(b) suing and being sued in its own name; and

(c) doing or performing all such acts and things as bodies corporate may by law do or perform.

4. Appointment of members of the Commission

(1) The President shall, subject to the Constitution and in consultation with the leaders of the political
parties represented in the National Assembly, appoint suitably qualified persons to be members
of the Commission on such terms and conditions as the Public Appointments Committee of
Parliament shall determine.

(2) The remuneration and any allowance of a member of the Commission may not be reduced during
his period of office without his consent, and may be increased at such intervals as the Public
Appointments Committee of Parliament may determine.

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Electoral Commission Act Malawi

(3) A member of the Commission may resign from his office at any time by notice in writing to the
President.

5. Eligibility for appointment to the Commission

No person who is a candidate in any election or is a serving employee of the Commission shall be eligible
to be appointed a member of the Commission or any of its committees.

6. Independence of the Commission

(1) Every individual member and employee of the Commission shall perform the functions and exercise
the powers provided for in this Act independently of the direction or interference of—

(a) any public office;

(b) any organ of the Government;

(c) any political party;

(d) any candidate; or

(e) any person whosoever or organization whatsoever:

Provided that for the purpose only of accountability the Commission shall be answerable, and
report directly, to the President on the overall fulfilment of the functions and powers of the
Commission.

(2) Upon assuming his office or immediately thereafter, every member of the Commission shall take an
oath of office before the Chief Justice in the prescribed form.

7. Committees of the Commission

(1) For the better carrying into effect of its functions, the Commission may establish such number of
committees as it shall deem appropriate, to perform, subject to section 9, any of its functions and
carry out such other responsibilities as the Commission may direct.

(2) A committee of the Commission may consist of either members of the Commission only or
members of the Commission and such other suitably qualified persons as the Commission may
deem fit.

(3) The Commission shall appoint the chairman of each committee from only amongst the members of
the Commission.

(4) The provisions of this Act relating to meetings of the Commission shall apply mutatis mutandis to
the meetings of its committees.

(5) Every committee of the Commission shall act in accordance with any directions given to it in
writing by the Commission.

Part III – Functions and powers of the Commission

8. Functions and powers of the Commission

(1) In addition to the broad functions and powers conferred on the Commission by the Constitution
and, subject to the Constitution, the Commission shall exercise general direction and supervision
over the conduct of every election and, without prejudice to the generality of such functions and
powers, it shall have the following further functions—

(a) to determine the number of constituencies for the purposes of elections;

(b) to undertake or supervise the demarcation of boundaries of constituencies;

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Electoral Commission Act Malawi

(c) subject to the Local Government Elections Act and any other written law relating to local
government elections, to undertake or supervise the demarcation of wards for purposes of
local government elections and to determine the number of such wards:

Provided that—

(i) in the case of the City of Blantyre, the total number of wards shall not exceed thirty;

(ii) in the case of the City of Lilongwe, the total number of wards shall not exceed thirty;

(iii) in the case of the City of Mzuzu, the total number of wards shall not exceed fifteen;

(iv) in the case of the City of Zomba, the total number of wards shall not exceed ten;

[11 of 2013]

(v) in the case of Kasungu Municipal Council, the total number of wards shall not exceed
ten;

[11 of 2013]

(vi) in the case of Luchenza Municipal Council, the total number of wards shall not exceed
eight;

[11 of 2013]

(vii) in the case of Mangochi Town Council, the total number of wards shall not exceed ten;
and

[11 of 2013]

(viii) in all other cases, the number of wards shall not exceed two for each parliamentary
constituency, and the Commission shall ensure that ward boundaries do not cross
local authority boundaries;

[Cap. 22:02; 16 of 2010]

(d) to organize and direct the registration of voters;

(e) to devise and establish voters registers and ballot papers;

(f) to print, distribute and take charge of ballot papers and voters registers;

(g) to approve and procure ballot boxes;

(h) to establish and operate polling stations;

(i) to establish security conditions necessary for the conduct of every election in accordance
with any written law governing elections;

(j) to promote public awareness of electoral matters through the media and other appropriate
and effective means and to conduct civic and voter education on such matters;

(k) to promote and conduct research into electoral matters and into any matter pertaining to its
functions and to publish the results of such research;

(l) to perform the functions conferred upon it by or under any written law; and

(m) to take measures and to do such other things as are necessary for conducting free and fair
elections.

(2) For purposes of discharging the functions and exercising the powers conferred upon it by the
Constitution, this Act or any other written law relating to elections, the Commission shall

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Electoral Commission Act Malawi

freely communicate with the Government and any political party or any candidate, person or
organization.

[16 of 2010; 11 of 2013]

9. Delegation of powers and functions

The Commission may delegate to any of its committees, the Chief Elections Officer or other employee of
the Commission all or any of its powers and functions.

10. Vacancy in the membership of the Commission

Subject to the Constitution and to section 11 (3), any vacancy in the membership of the Commission
shall not affect its decisions, the performance of its functions or the exercise of its powers under the
Constitution, this Act or any other written law.

Part IV – Meetings of the Commission

11. Meetings of the Commission

(1) The Commission shall meet at such place or places, and at such time or times as the Chairman may
determine:

Provided that the Chairman shall convene a meeting within fourteen days of receipt by him of a
request in writing signed by the majority of members of the Commission and specifying the purpose
for which the meeting is to be convened.

(2) The Chairman shall take all reasonable steps to ensure that every member of the Commission is
given due and adequate notice of every meeting of the Commission.

(3) The quorum at every meeting of the Commission shall be fifty-one per centum of the members of
the Commission.

(4) The Chairman shall preside at all meetings of the Commission. In the absence of the Chairman the
members present and forming a quorum shall elect one of their number to preside over the meeting
of the Commission.

(5) At any meeting of the Commission, the decision of the Commission on any matter shall be that of
the majority of the members of the Commission present and voting, and at all such meetings, the
person presiding shall have, in the event of an equality of votes, a casting vote in addition to his
deliberative vote.

(6) Subject to the Constitution and this Act, the Commission shall have power to regulate its own
procedure by standing orders and the procedure of any of its committees and may vary, suspend or
revoke any such standing orders.

(7) The Chief Elections Officer or such other employee of the Commission as the Commission may
designate shall be the secretary to the Commission or at the meetings of any of its committees.

(8) Minutes of each meeting of the Commission or a committee of the Commission shall be kept by the
secretary and shall be confirmed at the subsequent meeting of the Commission or committee, as the
case may be.

Part V – Management

12. Appointment of Chief Elections Officer

(1) The Commission shall appoint a suitably qualified person to be Chief Elections Officer upon such
written terms and conditions as the Commission may, in its discretion, determine.

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Electoral Commission Act Malawi

(2) The Chief Elections Officer shall hold office for a period of five years and shall be eligible to be
reappointed as Chief Elections Officer for a further period of five years.

(3) The Chief Elections Officer shall be the chief executive officer of the Commission and, in the
performance of his functions and duties, shall be responsible and answerable only to, and shall be
under the direction, supervision and control, of the Commission.

(4) The Chief Elections Officer shall not divulge any information to any person or accept or seek
instructions from any person in relation to his functions and duties or the functions or powers of
the Commission or in relation to the conduct of any election.

13. Appointment of staff of the Commission

(1) The Commission shall appoint such other professional, technical and administrative officers and
support staff as the Commission may deem necessary, subject to such terms and conditions as the
Commission shall, in its discretion, determine.

(2) The Commission may pay to every person in its service, including the Chief Elections Officer, such
remuneration and allowances and grant to every such person such fringe benefits as it may deem
appropriate.

(3) There may be seconded to the Commission such number of public officers as the Commission may
arrange with the appropriate authority responsible for such public officers for such periods and on
such terms and conditions as may be agreed between the Commission and the authority concerned.

(4) For purposes of this Act, a public officer who is seconded to the Commission under subsection (3),
shall be deemed to be an employee of the Commission and shall enjoy the same benefits and shall
be required to comply with the Constitution, this Act and any other written law relating to elections
and any instruction, orders and directions of the Commission in the same manner as an employee
recruited directly by the Commission under this Act.

(5) The Commission shall deploy persons in its service in such manner as it deems appropriate and
shall, for each district, constituency, ward and polling station, designate a District Elections Officer,
elections officers, assistant elections officers, returning officers, presiding officers, registration
officers, polling officials and counting officers in such numbers as the Commission shall deem
appropriate for purposes of conducting or supervising elections.

(6) Upon assuming office, or immediately thereafter, every employee including the Chief Elections
Officer shall take an oath of office in the prescribed form before a commissioner of oaths and, if
there be no such form, in such form as the Commission shall determine.

14. Vacancy where employee becomes candidate in the elections

The office or post of an employee of the Commission shall automatically become vacant in the event that
the employee becomes a candidate in any presidential, parliamentary or local government election.

Part VI – Financial provisions

15. Funds of the Commission

(1) The funds of the Commission shall consist of—

(a) such sums as shall be appropriated by Parliament for purposes of the Commission;

(b) such sums or assets as may accrue to or vest in the Commission, whether in the course of the
performance by the Commission of its functions or the exercise of its powers or otherwise;

(c) such sums or assets as may accrue to or vest in the Commission by way of grants, subsidies,
bequests, donations, gifts and subscriptions, from the Government or any other person;

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Electoral Commission Act Malawi

(d) such sums as are derived from the sale of any property, real or personal, by or on behalf of
the Commission;

(e) such sums as are received by the Commission by way of voluntary contributions; and

(f) such sums or assets as may be donated to the Commission by any foreign government,
international agency or other external body of persons, corporate or unincorporate.

(2) For the purposes of this section an “external body of persons”, means any body of persons,
corporate or unincorporated, formed under or by virtue of the laws of any country other than
Malawi.

(3) The funds of the Commission shall exclusively be under the control of the Commission and shall
be utilized solely for the purposes of this Act in accordance with the written directions of the
Commission and for no other purpose.

16. Books and other records of accounts, audit and reports of the Commission
(1) The Commission shall cause to be kept proper books and other records of account in respect
of receipts and expenditures of the Commission in accordance with acceptable principles of
accounting.

(2) The accounts of the Commission shall be audited annually by the Auditor General or by
independent professional auditors appointed by the Commission in consultation with the Auditor
General, and the expenses of the audit shall be paid out of the funds of the Commission.

(3) The Commission shall, as soon as practicable, but not later than six months after the end of the
financial year of the Commission submit to the Minister and publish in the Gazette annual report on
all the financial transactions of the Commission and on the work, activities and operations of the
Commission.

(4) The report referred to in subsection (3) shall include a balance sheet and an income and
expenditure account, and shall be laid by the Minister before the National Assembly in accordance
with the Finance and Audit Act.

[Cap. 37:01]

(5) The Commission shall at all times comply with the provisions of the Finance and Audit Act.

[Cap. 37:01]

17. Holdings of funds of the Commission

(1) All sums received for the purposes of the Commission shall be paid into one or more banking
accounts at such bank or banks as the Commission may determine, and no amount shall be
withdrawn therefrom except under the written authority of the Commission and by means of
cheques signed by such persons as are authorized in that behalf by the Commission.

(2) Any sums not immediately required for the purposes of the Commission may be invested in such
manner as the Commission may, in its discretion, determine.

18. Financial year

The financial year of the Commission shall be the period of twelve months commencing on the 1st July of
each year and ending on the 30th June of the following year:

Provided that the first financial year may be a period shorter or longer than twelve months as the
Commission shall determine, but in any case not longer than eighteen months.

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Electoral Commission Act Malawi

Part VII – Miscellaneous

19. Duty to co-operate

(1) It shall be the duty of every relevant or competent public officer and public or private entity to co-
operate with the Commission in its activities and to contribute towards the success of an election
and not to do anything that might hinder such process.

(2) It shall be the special duty of—

(a) all District Commissioners, in their respective districts, and all Clerks of local authorities,
in their respective local authorities, to give the Commission and its officers the support and
collaboration deemed by the Commission or its officers to be necessary for the execution of
the activities connected with the conduct of an election; and

(b) officers-in-charge of police, in their respective areas of operation, to take all necessary
measures for the maintenance of law and order and stability necessary for the conduct of an
election and to protect and uphold the rights of all persons under any written law relating to
elections.

20. Legal representation

The Commission may instruct the Attorney General or any legal practitioner to provide legal
representation to the Commission in any court proceedings, including proceedings concerning appeals
against its decisions on complaints about any aspect of the electoral process, or to provide general legal
advice to the Commission.

21. Publicity
The Commission shall, in such manner as it shall consider appropriate, publish a notice for public
information specifying—

(a) the location of its principal office; and

(b) its address or addresses, telephone numbers and other means of communication or contact with the
Commission.

22. Regulations
The Minister may, on the recommendation of the Commission, make regulations for the better carrying
out of this Act.

Part VIII – Transitional provisions

23. Savings
(1) Any person who, at the commencement of this Act, is a member or employee of the Commission,
shall continue as such member or employee pursuant to the terms and conditions of his
appointment.

(2) The validity of any legal proceedings commenced by or against the Commission and any thing done
or action or decision taken or made by a court or the Commission or any of its employees prior to
the commencement of this Act shall not be affected by this Act.

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Electoral Commission Act Malawi

24. Transfer of assets, etc.

(1) All property assets rights liabilities obligations agreements and other arrangements (other
than arrangements with foreign Governments or other foreign donor agencies) existing at the
commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of
the Commission shall, upon the commencement of this Act, be deemed to have vested in or to
have been acquired, incurred or entered into by or on behalf of the Commission and shall become
enforceable by or against the Commission to the same extent as they were enforceable by or against
the Commission before the commencement of the Act.

(2) Where the transfer of any property transferred to or vested in the Commission under subsection
(1) is required by any written law to be registered, the Commission shall, within one year from the
commencement of this Act or within such other period as the written law may prescribe, apply
to the appropriate registering authority for the registration of the transfer and thereupon the
registering authority shall, at no cost to the Commission or any person by way of registration fees,
stamp or other duties—

(a) make such entries in the appropriate register as shall give effect to the transfer;

(b) where appropriate, issue to the Commission a certificate of title or other statutory evidence
of ownership of the property or make such amendments on such certificates or in the
appropriate register as may be necessary; and

(c) make any necessary endorsements on such deeds or other documents as may be presented to
such registering authority relating to the title, right or obligation concerned.

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