Malawi 1994 Constitution (reviewed 2017)

CHAPTER XVII. PRISONS

163. The Malawi Prisons Service

There shall be the Malawi Prisons Service which shall consist of all penal institutions, labour camps, special and secure schools and other institutions that are used to house, detain and rehabilitate persons sentenced to imprisonment in whatever form such imprisonment may take, but shall not include holding cells in police stations.

164. The Chief Commissioner for Prisons

1. There shall be a Chief Commissioner for Prisons who shall be responsible for the Malawi Prisons Service and whose office shall be a public office with such powers, functions and duties as are conferred on it by this Constitution and an Act of Parliament.
2. The principal responsibilities of the Chief Commissioner for Prisons shall be to ensure the proper and efficient administration of the penal institutions that comprise the Malawi Prisons Service, subject to and in accordance with—
   1. the protection of rights and other provisions of this Constitution or any other law;
   2. the recommendations of the Prisons Service Commission and the Inspectorate of Prisons in accordance with an Act of Parliament; and
   3. the directions of the courts in relation to persons convicted by the courts to a sentence of incarceration or penal servitude within a penal institution, or incarcerated by the courts pending execution of the sentence of the courts, or awaiting sentence by the courts or otherwise on remand to the custody of the Prisons Service or being held on behalf of the Malawi Police Service in connexion with any law.
3. Save as provided in this section, in the exercise of the duties and powers vested in the office of the Chief Commissioner for Prisons by this Constitution or any other law, the person holding that office shall not be subject to the direction or control of any other person or authority, other than as prescribed in this Constitution and an Act of Parliament.

165. Power to delegate

1. The Chief Commissioner for Prisons may delegate the powers conferred on him or her by this Constitution or an Act of Parliament to such persons or authorities, being part of the Malawi Prisons Service, as he or she considers appropriate.
2. With respect to the delegation of powers in subsection (1)—
   1. the Chief Commissioner for Prisons shall notify the Prisons Service Commission and the Inspectorate of Prisons of any such delegation; and
   2. the Prisons Service Commission or, as the case may be, the Inspectorate of Prisons may—
      1. prescribe any regulations it considers appropriate in relation to the manner and form of reports that the person or authority exercising that power shall make; and
      2. shall prescribe such restrictions as may be required to ensure the proper exercise of powers delegated under this section.

166. Appointment of the Chief Commissioner for Prisons

1. The Chief Commissioner for Prisons shall be appointed by the President, but the Public Appointments Committee may at any time inquire as to the competence of the person so appointed to carry out the duties of that office and as to such other questions as may have direct bearing on the performance of the duties of that office.
2. The office of the Chief Commissioner for Prisons shall become vacant after the person holding that office has served for five years, provided that the person holding that office may be appointed for such further term, not exceeding five years, as the President considers appropriate.
3. A person holding the office of Chief Commissioner for Prisons shall be subject to removal by the President only by reason of that person being—
   1. incompetent in the exercise of his or her duties;
   2. compromised in the exercise of his or her duties to the extent that his or her capacity to impartially exercise the duties of that office is in serious question;
   3. otherwise incapacitated; or
   4. over the age prescribed for retirement.

167. The Prisons Service Commission

1. There shall be a Prisons Service Commission with the powers and functions conferred on it by this Constitution and by an Act of Parliament.
2. The Prisons Service Commission shall have the power to appoint persons to hold or act in offices in the Prisons Service of Malawi, other than the Chief Commissioner for Prisons, including the power to confirm appointments and to remove such persons from office.
3. The Prisons Service Commission shall, subject to this Constitution and any Act of Parliament, exercise disciplinary control over persons holding or acting in any office to which this section applies.
4. The Prisons Service Commission may, subject to such conditions as may be laid down by an Act of Parliament, delegate powers under this section by directions in writing to any member of the Commission or to any public officer or public body, being part of the Malawi Prisons Service.
5. Where any person or body may, from time to time, exercise powers under this section on behalf of the Prisons Service Commission, in accordance with subsection (4), the Prisons Service Commission shall—
   1. require that person or body to furnish reports in such manner or form as the Commission has specified in the directions by which it delegated those powers;
   2. hear such complaints or appeals from persons with sufficient interest relating to the exercise of powers under this section and shall have the authority to—
      1. quash the decision of a person or body exercising such powers;
      2. exercise such disciplinary powers with relation to such person or body, subject to the conditions laid down by an Act of Parliament;
      3. revoke directions delegating powers to any person or body:

   Provided that nothing in this section shall prejudice the right of any person who is the subject of a decision made by or on behalf of the Prisons Service Commission to appeal to the High Court or the right of any person with sufficient interest in such a decision to petition the High Court for judicial review of that decision.

168. Composition of Prisons Service Commission

1. The Prisons Service Commission shall consist of the following members—
   1. such Justice of Appeal or Judge as may for the time being be nominated in that behalf by the Judicial Service Commission, who shall be chairman;
   2. such member of the Civil Service Commission as may for the time being be nominated in that behalf by the Civil Service Commission;
   3. such legal practitioner as may for the time being be nominated by the President subject to confirmation by the Public Appointments Committee;
   4. such person as may be nominated from time to time in that behalf by the Inspectorate of Prisons; and
   5. the Chief Commissioner for Prisons or a person nominated by the Chief Commissioner of Prisons from time to time in that behalf, being a senior member of the Malawi Prisons Service.
2. A person shall not be qualified for appointment as a member of the Prisons Service Commission if he or she is President, Vice-President, a Minister or Deputy Minister, a Member of Parliament or, save as provided in subsection (1) (d) and (e), an officer in the Malawi Prisons Service.
3. Subject to this section, the office of a member of the Prisons Service Commission shall become vacant—
   1. at the expiration of three years from the date of that member’s appointment, unless the member is reappointed to a further term not exceeding three years; or
   2. if any circumstances arise that, if that member were not a member of the Prisons Service Commission, would cause that member to be disqualified from appointment as such:

   Provided that paragraph (a) shall not apply where the member in question still holds the office of Chief Commissioner for Prisons, in which behalf that person was appointed to the Prisons Service Commission.

169. The Inspectorate of Prisons

1. There shall be an Inspectorate of Prisons which shall have such powers, functions and duties in relation to the Malawi Prisons Service as are conferred on it by this Constitution or an Act of Parliament.
2. The Inspectorate of Prisons shall exercise its powers, functions and duties independent of any direction or interference by any other person or authority.
3. The Inspectorate of Prisons shall—
   1. be charged with monitoring the conditions, administration and general functioning of penal institutions taking due account of applicable international standards;
   2. have such powers as shall be required for it to make investigations and shall have the power to require any person to answer questions relating to such subjects as are relevant to those investigations;
   3. have the power to visit any and all institutions within the Malawi Prisons Service with or without notice and without let or hindrance; and
   4. exercise such other powers as may be prescribed by an Act of Parliament.
4. The Inspectorate of Prisons shall cause to be laid before the National Assembly such reports as the Inspectorate of Prisons may make and such reports shall be so laid through the Minister responsible for Prisons in the form of a motion for acceptance of the recommendations of the Inspectorate of Prisons.
5. Where the recommendations of the Inspectorate of Prisons require amendment to any law, the Minister shall lay before Parliament those recommendations in the form of a Bill.
6. The powers conferred on the Inspectorate for Prisons by this section shall also be exercisable by the Inspectorate of Prisons with respect to holding cells in police stations.

170. Composition of the Inspectorate of Prisons

1. The Inspectorate of Prisons shall consist of the following members—
   1. such Justice of Appeal or Judge as shall from time to time be nominated in that behalf by the Judicial Service Commission, who shall be chairman;
   2. the Chief Commissioner for Prisons or such person as he or she may nominate in that behalf being a senior member of the Malawi Prisons Service;
   3. such member of the Prisons Service Commission, other than the Chief Commissioner for Prisons, or other person nomination under section 168 (1) (e) as shall from time to time be nominated in that behalf by that Commission;
   4. such Magistrate as shall from time to time be nominated in that behalf by the Judicial Service Commission; and
   5. the Ombudsman.
2. The Inspectorate of Prisons shall have power to co-opt persons as representatives of any local or international organizations having an office in Malawi involved in the monitoring of human rights or more generally concerned with the welfare of offenders as may be approved by the membership of the Inspectorate of Prisons.
3. For the purposes of exercising its powers of nomination under subsection (1) (c), the quorum of the Prisons Service Commission shall consist of the majority of those in office at the time of the nomination.