Malawi 1994 Constitution (reviewed 2017)

CHAPTER XIII. NATIONAL COMPENSATION TRIBUNAL

137. The National Compensation Tribunal

There shall be a National Compensation Tribunal which shall entertain claims with respect to alleged criminal and civil liability of the Government of Malawi which was in power before the appointed day and which shall have such powers and functions as are conferred on it by this Constitution and an Act of Parliament.

138. Exclusive original jurisdiction

1. No person shall institute proceedings against any Government in power after the commencement of this Constitution in respect of any alleged criminal or civil liability of the Government of Malawi in power before the commencement of this Constitution arising from abuse of power or office, save by application to the National Compensation Tribunal, which shall hear cases initiated by persons with sufficient interest.
2. The National Compensation Tribunal shall have all powers of investigation necessary to establish the facts of any case before it.
3. Notwithstanding subsection (1), the National Compensation Tribunal shall have the power to remit a case or a question of law for determination by the ordinary courts where the National Compensation Tribunal is satisfied that the Tribunal does not have jurisdiction, or where the Tribunal feels it is in the interest of justice so to do.

139. Composition

1. There shall be a Chairman of the National Compensation Tribunal who shall be a judge and who shall—
   1. be appointed in that behalf by the Chief Justice on the nomination of the Judicial Service Commission; and
   2. hold the office of Chairman of the National Compensation Tribunal for not more than three years or until such time as that person ceases to be a judge whichever is sooner.
2. The Chairman of the National Compensation Tribunal shall be assisted by such additional members and by such assessors and other experts as may be appointed in accordance with the provisions of an Act of Parliament.

140. Procedure

1. The rules of procedure of the National Compensation Tribunal and other matters of policy or principle concerning its powers and functions shall be prescribed by or under an Act of Parliament and shall be such as shall ensure expeditious disposal of cases, which may include an informal preliminary arbitration procedure.
2. Notwithstanding subsection (1), the procedures of the National Compensation Tribunal shall—
   1. conform to the standards of proof required for a normal civil court, unless the National Compensation Tribunal otherwise determines in the interest of justice in any particular case or class of cases; and
   2. conform with the standards of justice set out in this Constitution and the principles of natural justice.

141. Protection of third party rights

Where a third party disputes a claim and has an interest in money or property that is the subject of a claim before the National Compensation Tribunal—

1. that party shall be given adequate notification;
2. that party shall be entitled to legal representation; and
3. if the Chairman of the National Compensation Tribunal is satisfied that the person is of insufficient means to retain legal counsel, legal assistance shall be provided at the expense of the State.

142. Jurisdiction of ordinary courts

1. The High Court shall not be excluded from hearing applications for judicial review of the decisions of the Tribunal nor shall a determination by the Tribunal be a bar to further criminal or civil proceedings in an appropriate court against a private person for the duration of the existence of the fund.
2. A “private person” for the purposes of this section means a person who was before the commencement of this Constitution a member of the Government or of an agent of the Government, who would, under the laws then in force, have been personally liable for an act that is the subject of the criminal or civil proceedings.

143. Power to waive statutory limitations

For the purposes of pursuing claims before the National Compensation Tribunal and criminal and civil proceedings against a private person within the meaning of section 142 (2), any statutory time limitation may be waived by the Tribunal or by a court if it seems to the Tribunal or the court equitable to do so.

144. National Compensation Fund

1. There shall be a National Compensation Fund which shall be a trust vested in the Republic.
2. The National Compensation Fund shall be used exclusively for the purposes assigned to it by this Constitution and shall—
   1. be a trust the purpose of which shall be for the exclusive benefit of those applicants to the National Compensation Tribunal who have been granted any award, gratuity, pension or other form of reparation according to the principles, procedures and rules of the National Compensation Tribunal;
   2. be held in a separate account within the Reserve Bank of Malawi; and
   3. have all of its reports, financial statements and information relating to its operation published and maintained for public scrutiny.
3. Subject to this Chapter, the only charges on, or disbursements to be made from, the National Compensation Fund shall be by—
   1. the National Compensation Tribunal; or
   2. the trustees of the Fund in so far as such disbursements or charges are necessary and prudent for the efficient operation of the Fund in accordance with its purpose as declared in this subsection.
4. There shall be not less than four trustees of the National Compensation Fund who shall be appointed from time to time by the Public Appointments Committee on the recommendation of the National Compensation Tribunal.
5. A Trustee shall hold office for the duration of the Fund unless and only in such circumstances as that trustee is removed by the Public Appointments Committee on the grounds of—
   1. incompetence;
   2. incapacity; or
   3. being compromised in the exercise of his or her functions to the extent that his or her financial probity is in serious question.
6. Trustees of the National Compensation Fund shall exercise their functions independent of any direction or interference by any body or authority, save as is provided by this section.
7. The Auditor General shall make an annual report, to be laid before the National Assembly, on the conduct and status of the Fund which shall provide guidance to the National Assembly for voting an appropriation for the purposes of the National Compensation Fund.
8. An appropriation for the purposes of the National Compensation Fund shall be laid before the National Assembly by the Minister responsible for Finance before the beginning, and with respect to, every financial year during the life of the Fund.
9. With respect to any financial year, the Tribunal shall prescribe a period not being more than six months after the commencement of that financial year, after which the Tribunal shall not receive applications for compensation within that financial year from the National Compensation Fund.

145. Winding-up of the National Compensation Fund

1. The National Compensation Fund shall cease to be charged with new claims for compensation not later than ten years after the commencement of this Constitution at which time the National Compensation Tribunal shall dissolve.
2. If, with respect to any year within the period prescribed in subsection (1), and after the second year of it coming into existence, less than ten applications are made to the National Compensation Tribunal, then the Chairman of the Tribunal may direct the Minister responsible for Finance to lay before the National Assembly a Bill—
   1. to dissolve the National Compensation Tribunal; and
   2. to confer on the High Court jurisdiction equivalent to that of the National Compensation Tribunal to determine claims against the Government within the meaning of this Chapter.
3. Where the National Compensation Tribunal has been dissolved, for the remaining duration of the period prescribed in subsection (1) the uncommitted residue of the Fund shall remain a separate fund within the accounts of the Consolidated Fund which shall be drawn upon by the Minister responsible for Finance in respect of awards made by the High Court in relation to claims that would otherwise have been determined by the National Compensation Tribunal.
4. The National Compensation Fund shall continue until there is no longer a committed residue.