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The 1995 Democratic Constitution of Malawi

Published online by Cambridge University Press:  28 July 2009

A. Peter Mutharika
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On 17 May, 1995, the Malawi National Assembly adopted a democratic constitution. In terms of Malawi’s post-colonial history, the adoption of the constitution was an unprecedented event. For a period of 30 years, Malawi had been subjected to a one-party dictatorship led by Dr Hastings Banda. Supported over the years by the West because of its anti-communist rhetoric, the Banda regime found itself abandoned with the ending of the Cold War and the collapse of apartheid in South Africa. Pressure from internal and external groups led to a referendum on the oneparty state in June 1993 which the Banda regime lost and to the first multi-party elections in May 1994 which the regime also lost. A day before the 1994 elections, the Malawi National Assembly adopted a Provisional Constitution for a period of 12 months. Pursuant to section 212 of the Provisional Constitution, the National Constitutional Conference was held in February 1995 for the purpose of making recommendations to the National Assembly on a permanent constitution. Rather than replace or repeal the Provisional Constitution, the National Assembly decided in April 1995 to make modest amendments to it in order to address some of the more blatant deficiencies that were identified at the Constitutional Conference. During the coming years, the Law Commission will make a detailed study of the entire document, make recommendations to the Minister of Justice and, it is hoped, address some of the obvious drafting oversights.

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Articles
Information
Journal of African Law , Volume 40 , Issue 2: SPECIAL FORTIETH ANNIVERSARY NUMBER LIBER AMICORUM FOR PROFESSOR JAMES S. READ , Autumn 1996 , pp. 205 - 220
Copyright
Copyright © School of Oriental and African Studies 1996

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References

1 Constitution of Malawi Act, 1995. Act No. 7 of 1995 (hereinafter referred to as the “Constitution”).

2 Republic of Malawi (Constitution) Act of 1994. Act No. 20 of 1994 (hereinafter referred to as the “Provisional Constitution”).

3 The Law Commission is established under s. 132 of the Constitution. Section 135(b) grants the Commission the power to review and make recommendations regarding any matter pertaining to the Constitution.

4 S. 13(g)

5 Ibid.

6 S. 13(e).

7 S. 13(d).

8 S. 19(6)(a).

9 S. 137.

10 The National Consultative Council (NCC) and the National Executive Council (NEC) were established by the National Consultative Council Act, 1993, in order to oversee the transition to multi-party democracy. The Council was mandated under section 5 of the Act to prepare a draft of a new constitution suitable for a multi-party system. All political parties registered under the Political Parties (Registration and Regulation) Act, 1993, were represented on the Council and the National Executive Committee (NEC). The actual drafting of the constitution was done by a Constitutional Sub-Committee whose members represented the various political parties on the Council.

11 S. 49.

12 S. 111.

13 S. 119(3).

14 S. 73.

15 S. 175.

16 Ss. 89(l)(f), 211(1).

17 See generally, Dodge, William et al. , A Commentary on the Provisional Constitution of Malawi, Washington, D.C., 1994.Google Scholar

18 Trevor Cullen, Malawi: A Turning Point, 1994, 72.

19 Act No. 35, 1971.

20 See generally, Africa Watch, Where Silence Rules: The Suppression of Dissent in Malawi, 1990; The Scottish Faculty of Advocates and the Law Society of England and Wales, A Report of Human Rights in Malawi, 1992 (hereinafter Human Rights in Malawi); Robert F. Kennedy Memorial Center for Human Rights, Confronting the Past: Accountability for Human Rights Violations in Malawi, 1994.

21 See, s. 4 of the 1966 Constitution (as amended).

22 For an account of some of the problems of managing the transition to democracy, see generally, Michael, D. Kirby, “Malawi: the arrival of multi-party democracy”, (1994) 68 Australian L.J. 604;Google ScholarMichael, D. Kirby, “Round table on transition to multi-party democracy in Malawi”, (1994) 20 Commonwealth Law Bulletin 293.Google Scholar

23 National Consultative Council Act, ss. 3 and 4.

24 S. 5(l).

25 S. 5(2).

26 Forfeiture (Repeal) Act, 1993.

27 The Preservation of Public Security (Amendment) Act, 1993.

28 The Penal Code (Amendment) Act, 1993.

29 S. 12.

30 S. 13.

31 Cullen, above, n. 18 at 21.

32 S. 92(3)(b) and (c).

33 S. 80(5).

34 After the May 1994 elections, the United Democratic Front (currently the governing party) won nearly all the parliamentary seats in the Southern Region. The Malawi Congress Party (the previous governing party) won nearly all the seats in the Central Region and the Alliance for Democracy won all the seats in the Northern Region. No political party had a majority in the National Assembly. The Second Vice-Presidency was created in order to enable the President to effect a working majority in the National Assembly by appointing the president of the Alliance for Democracy to the post of Second Vice-President. The post is currently vacant after the resignation of the Second Vice-President on 2 May, 1996.

35 S. 85.

36 S. 92.

37 S. 83(4).

38 S. 83(3).

39 S. 86.

40 Some have argued that the Supreme Court would not have the independence necessary to convict the President and that its impartiality would be undermined if called upon to hear an appeal in a subsequent criminal case. See Dodge, above, n. 17 at 32.

41 S. 161(1).

42 S. 88.

43 S. 49(l).

44 S. 73(4).

45 S. 62(l).

46 Ss. 68,72.

47 S. 210.

48 S. 62(l).

49 S. 76(2)(a).

50 S. 57(1).

51 S. 177.

52 S. 178.

53 Report of the Constitution Committee to the National Assembly on the National Constitutional Conference on the Provisional Constitution, 1995, 25–26 (hereinafter Report of the Constitution Committee).

54 Sope, v.General, Attorney, cited by Cottrell, Jill, “The Constitution of Namibia: an overview”, (1991) 35 J.A.L. 69.Google Scholar

55 Cf.James, S. Read, “Nigeria’s new constitution for 1992: the Third Republic”, (1991) 35 J.A.L. 174.Google Scholar

56 S. 68.

57 S. 71.

58 Data collected by examining the most recent constitutions compiled in Blaustein, Albert P. and Flanz, Gilbert H., Constitutions of the Countries of the World, New York, 1996.Google Scholar

59 See generally, Human Rights in Malawi, above, n. 20.

60 S. 110.

61 S. 111.

62 S. 119.

63 See, Dodge, above, n. 17 at 28–30.

64 Report of the Constitution Committee at 27–28.

65 S. 15(1).

66 S. 44(2).

67 S. 44(l)(a).

68 S. 123.

69 S. 129.

70 S. 102(2)(b).

71 Where allegations of maladministration have been made against a cabinet member, the Ombudsman is required under Article 6 of the Ombudsman Act to obtain a warrant from a Magistrates Court, serve it physically on the minister and wait for seven days before an investigation can start. The current Ombudsman has complained that Article 6 will make it almost impossible for him to carry out his responsibilities. Malawi News Online, Edition 8, 3 June, 1996.

72 S. 2.

73 See Kirby, above, n. 22 at 606.

74 S. 137(2).

75 S. 142(2).

76 Malawi News Online, Edition No. 43, April 1996.

77 S. 169.

78 S. 158.

79 S. 194.

80 S. 13(o).

81 For a detailed analysis of the ethnic and regional aspects of the 1994 elections, see generally, Kaspin, Deborah, “The politics of ethnicity in Malawi’s democratic transition”, (1995) 33 Journal of Modem African Studies 596.CrossRefGoogle Scholar

82 See generally, Balinski, Michael L. and Young, H. Peyton, Fair Representation: Meeting the Ideal of One Man, One Vote, 1982, 87Google Scholar; citing Lewis, W. Arthur, Politics in West Africa, 1965, 71–72Google Scholar; Butty, David C., “The masses want democracy in government”, Detroit News, 31 01, 1993, at 1B.Google Scholar

83 There are varieties of proportional representation. A “pure” proportional representation system, for example, involves voters casting a simple vote for a party list in a multi-member district. Such pure systems are uncommon but have been used successfully in the past in Israel and the Netherlands. Other countries, e.g. Sweden and Denmark, elect a major part of their legislatures in nation-wide districts. Variants of proportional representation are increasing in popularity. Recently Germany, Italy, New Zealand, Russia, Mexico, Japan and South Africa have adopted modified forms of proportional representation.

84 See, Constitution of Namibia, arts. 46, 47 and Schedule 4; Constitution of Mauritius, art. 31 and First Schedule; Constitution of the Republic of South Africa, arts. 84, 88 and Schedule 2.