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Constitution of Malawi (1994, rev. 1999)

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3Preamble

4THE PEOPLE OF MALAWI—

5recognizing the sanctity of human life and the unity of all mankind;

6guided by their private consciences and collective wisdom;

7seeking to guarantee the welfare and development of all the people of Malawi, national harmony and peaceful international relations;

8desirous of creating a constitutional order in the Republic of Malawi based on the need for an open, democratic and accountable government:

9HEREBY adopt the following as the Constitution of the Republic of Malawi.

10CHAPTER I. THE REPUBLIC OF MALAWI

111. MALAWI A SOVEREIGN STATE

12The Republic of Malawi is a sovereign State with rights and obligations under the Law of Nations.

132. THE NATIONAL FLAG, ETC.

14Malawi shall have a National Flag, a National Coat of Arms, a National Anthem and a Public Seal.

153. THE NATIONAL TERRITORY

16The national territory of the Republic of Malawi shall consist of all the territory, including airspace, waters and islands which comprised the territory of Malawi before the commencement of this Constitution, and shall include any territory lawfully acquired thereafter by adjustment of boundaries or otherwise.

174. PROTECTION OF THE PEOPLE OF MALAWI UNDER THIS CONSTITUTION

18This Constitution shall bind all executive, legislative and judicial organs of the State at all levels of Government and all the peoples of Malawi are entitled to the equal protection of this Constitution, and laws made under it.

195. SUPREMACY OF THIS CONSTITUTION

20Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.

216. UNIVERSAL AND EQUAL SUFFRAGE

22Save as otherwise provided in this Constitution, the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections held in accordance with this Constitution in a manner prescribed by an Act of Parliament.

237. THE SEPARATE STATUS, FUNCTION AND DUTY OF THE EXECUTIVE

24The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution.

258. THE SEPARATE STATUS, FUNCTION AND DUTY OF THE LEGISLATURE

26The legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the values explicit or implicit in this Constitution.

279. THE SEPARATE STATUS, FUNCTION AND DUTY OF THE JUDICIARY

28The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law.

29CHAPTER II. APPLICATION AND INTERPRETATION

3010. APPLICATION OF THIS CONSTITUTION

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

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

3311. INTERPRETATION

341. Appropriate principles of interpretation of this Constitution shall be developed and employed by the courts to reflect the unique character and supreme status of this Constitution.

352. In interpreting the provisions of this Constitution a court of law shall—

36a.promote the values which underlie an open and democratic society;

37b.take full account of the provisions of Chapter III and Chapter IV; and

38c.where applicable, have regard to current norms of public international law and comparable foreign case law.

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

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

41CHAPTER III. FUNDAMENTAL PRINCIPLES

4212. CONSTITUTIONAL PRINCIPLES

43This Constitution is founded upon the following underlying principles—

44i.All legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interests.

45ii.All persons responsible for the exercise of powers of State do so on trust and shall only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi.

46iii.The authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice.

47iv.The inherent dignity and worth of each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.

48v.As all persons have equal status before the law, the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society.

49vi.All institutions and persons shall observe and uphold the Constitution and the rule of law and no institution or person shall stand above the law.

5013. PRINCIPLES OF NATIONAL POLICY

51The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals—

52a.Gender Equality

53To obtain gender equality for women with men through—

54i.full participation of women in all spheres of Malawians society on the basis of equality with men;

55ii.the implementation of the principles of non-discrimination and such other measures as may be required; and

56iii.the implementation of policies to address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation and rights to property.

57b.Nutrition

58To achieve adequate nutrition for all in order to promote good health and self-sufficiency.

59c.Health

60To provide adequate health care, commensurate with the health needs of Malawian society and international standards of health care.

61d.The Environment

62To manage the environment responsibly in order to—

63i.prevent the degradation of the environment;

64ii.provide a healthy living and working environment for the people of Malawi;

65iii.accord full recognition to the rights of future generations by means of environmental protection and the sustainable development of natural resources; and

66iv.conserve and enhance the biological diversity of Malawi.

67e.Rural Life

68To enhance the quality of life in rural communities and to recognize rural standards of living as a key indicator of the success of Government policies.

69f.Education

70To provide adequate resources to the education sector and devise programmes in order to—

71i.eliminate illiteracy in Malawi;

72ii.make primary education compulsory and free to all citizens of Malawi;

73iii.offer greater access to higher learning and continuing education; and

74iv.promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance.

75g.The Disabled

76To support the disabled through—

77i.greater access to public places;

78ii.fair opportunities in employment; and

79iii.the fullest possible participation in all spheres of Malawian society.

80h.Children

81To encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.

82i.The Family

83To recognize and protect the family as a fundamental and vital social unit.

84j.The Elderly

85To respect and support the elderly through the provision of community services and to encourage participation in the life of the community.

86k.International Relations

87To govern in accordance with the law of nations and the rule law and actively support the further development thereof in regional and international affairs.

88l.Peaceful Settlement of Disputes

89To strive to adopt mechanisms by which differences are settled through negotiation, good offices, mediation, conciliation and arbitration.

90m.Administration of Justice

91To promote law and order and respect for society through civic education, by honest practices in Government, adequate resourcing, and the humane application and enforcement of laws and policing standards.

92n.Economic Management

93To achieve a sensible balance between the creation and distribution of wealth through the nurturing of a market economy and long-term investment in health, education, economic and social development programmes.

94o.Public Trust and Good Governance

95To introduce measures which will guarantee accountability transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions.

9614. APPLICATION OF THE PRINCIPLES OF NATIONAL POLICY

97The principles of national policy contained in this Chapter shall be directory in nature but courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.

98CHAPTER IV. HUMAN RIGHTS

9915. PROTECTION OF HUMAN RIGHTS AND FREEDOMS

1001. The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature and judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.

1012. Any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievance in respect of those rights.

10216. THE RIGHT TO LIFE

103Every person has the right to life and no person shall be arbitrarily deprived of his or her life:

104Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.

10517. GENOCIDE

106Acts of genocide are prohibited and shall be prevented and punished.

10718. LIBERTY

108Every person has the right to personal liberty.

10919. HUMAN DIGNITY AND PERSONAL FREEDOMS

1101. The dignity of all persons shall be inviolable.

1112. In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.

1123. No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.

1134. No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State.

1145. No person shall be subjected to medical or scientific experimentation without his or her consent.

1156. Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be—

116a.detained without trial;

117b.detained solely by reason of his or her political or other opinions; or

118c.imprisoned for inability to fulfill contractual obligations.

11920. EQUALITY

1201. Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.

1212. Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.

12221. PRIVACY

1231. Every person shall have the right to personal privacy, which shall include the right not to be subject to—

124a.searches of his or her person, home or property;

125b.the seizure of private possessions; or

126c.interference with private communications, including mail and all forms of telecommunications.

12722. FAMILY AND MARRIAGE

1281. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

1292. Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.

1303. All men and women have the right to marry and found a family.

1314. No person shall be forced to enter into marriage.

1325. Sub-sections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.

1336. No person over the age of eighteen years shall be prevented from entering into marriage.

1347. For persons between the age of fifteen and eighteen years a marriage shall only be entered into with the consent of their parents or guardians.

1358. The State shall actually discourage marriage between persons where either of them is under the age of fifteen years.

13623. RIGHTS OF CHILDREN

1371. All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law.

1382. All children shall have the right to a given name and a family name and the right to a nationality.

1393. Children have the right to know, and to be raised by, their parents.

1404. Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to—

141a.be hazardous;

142b.interfere with their education; or

143c.be harmful to their health or to their physical, mental or spiritual or social development.

1445. For purposes of this section, children shall be persons under sixteen years of age.

14524. RIGHTS OF WOMEN

1461. Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right—

147a.to be accorded the same rights as men in civil law, including equal capacity—

148i.to enter into contracts;

149ii.to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;

150iii.to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and

151iv.to acquire and retain citizenship and nationality.

152b.on the dissolution of marriage—

153i.to a fair disposition of property that is held jointly with a husband; and

154ii.to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.

1552. Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as—

156a.sexual abuse, harassment and violence;

157b.discrimination in work, business and public affairs; and

158c.deprivation of property, including property obtained by inheritance.

15925. EDUCATION

1601. All persons are entitled to education.

1612. Primary education shall consist of at least five years of education.

1623. Private schools and other private institutions of higher learning shall be permissible, provided that—

163a.such schools or institutions are registered with a State department in accordance with the law;

164b.the standards maintained by such schools or institutions are not inferior to official standards in State schools.

16526. CULTURE AND LANGUAGE

166Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

16727. SLAVERY, SERVITUDE AND FORCED LABOUR

1681. No person shall be held in slavery or servitude.

1692. Slavery and the slave trade are prohibited.

1703. No person shall be subject to forced labour.

1714. No person shall be subject to tied labour that amounts to servitude.

17228. PROPERTY

1731. Every person shall be able to acquire property alone or in association with others.

1742. No person shall be arbitrarily deprived of property.

17529. ECONOMIC ACTIVITY

176Every person shall have the right freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi.

17730. RIGHT TO DEVELOPMENT

1781. All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and the disabled in particular shall be given special consideration in the application of this right.

1792. The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.

1803. The State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities.

1814. The State has a responsibility to respect the right to development and to justify its policies in accordance with this responsibility.

18231. LABOUR

1831. Every person shall have the right to fair and safe labour practices and to fair remuneration.

1842. All persons shall have the right to form and join trade unions or not to form or join trade unions.

1853. Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.

1864. The State shall take measures to ensure the right to withdraw labour.

18732. FREEDOM OF ASSOCIATION

1881. Every person shall have the right to freedom of association, which shall include the freedom to form associations.

1892. No person may be compelled to belong to an association.

19033. FREEDOM OF CONSCIENCE

191Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.

19234. FREEDOM OF OPINION

193Every person shall have the right to freedom of opinion, including the right to hold opinions without interference to hold receive and impart opinions.

19435. FREEDOM OF EXPRESSION

195Every person shall have the right to freedom of expression.

19636. FREEDOM OF THE PRESS

197The press shall have the right to report and publish I freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

19837. ACCESS TO INFORMATION

199Subject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.

20038. FREEDOM OF ASSEMBLY

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