Malawi 1994 Constitution (reviewed 2017)

CHAPTER XX. CIVIL SERVICE

186. The Civil Service Commission

There shall be a Civil Service Commission which shall have the powers and functions conferred upon it by this Constitution or any Act of Parliament and which shall consist of a chairperson, deputy chairperson and not less than six nor more than ten other members.

187. Powers and functions of the Civil Service Commission

1. Subject to this Constitution, power to appoint persons to hold or act in offices in the civil service, including the power to confirm appointments, and to remove such persons from office shall vest in the Civil Service Commission.
2. The Civil 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 Chapter applies.

188. Delegation

1. The Civil Service Commission may, subject to such conditions as maybe laid down ban Act of Parliament, delegate powers under this section by directions in writing to any member of the Commission or to any civil servant or public body.
2. Where any person or body may from time to time exercise powers under this section on behalf of the Civil Service Commission, in accordance with subsection (1), the Civil Service Commission shall—
   1. require that person or body to furnish reports in such manner or form as specified in the directions by which the Commission 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 in 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 Civil 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.

189. Offices to which this Chapter does not apply

1. This Chapter shall not apply where this Constitution has otherwise provided for the appointment or removal of a civil servant or other public appointee, or to appointments that are regulated by the Judicial Service Commission, the Police Service Commission, the Prisons Service Commission, by provisions relating to appointments in the Defence Force of Malawi nor shall it apply to the following offices—
   1. the Chief Justice, the Attorney General and Director of Public Prosecutions;
   2. such personal staff of the President as he or she shall determine subject to approval of the Public Appointments Committee or as an Act of Parliament may allow;
   3. the Secretary to the Cabinet;
   4. Ambassadors, High Commissioners and other principal diplomatic staff, within the meaning of section 190;
   5. the High Command of the Defence Force;
   6. the Inspector General of Police;
   7. the Chief Commissioner of Prisons;
   8. the office of a Principal Secretary;
   9. such other public office of sufficient seniority as may be prescribed by an Act of Parliament.
2. Unless otherwise provided by this Constitution or by an Act of Parliament, the power to appoint persons to the public offices specified in paragraphs (a) to (i) of subsection (1) shall vest in the President.
3. In any case where the Civil Service Commission, the President or any other authority has the power of appointment of the Clerk or the Clerk-Assistant to the National Assembly, before exercising that power, the Commission, the President or any such other authority shall consult the Speaker of the National Assembly.

190. The appointment of Diplomatic staff

Ambassadors, High Commissioners and such other principal diplomatic staff as shall be determined by an Act of Parliament shall be appointed by the President, subject to confirmation by the Public Appointments Committee which may require persons so appointed to answer questions as to their competence and financial probity.

191. Appointment of members of the Civil Service Commission

1. The members of the Civil Service Commission shall be appointed by the President, subject to satisfying the Public Service Appointments Committee as to the competence of persons so appointed to perform their duties as members of the Civil Service Commission.
2. A person shall not be qualified for appointment as a member of the Civil Service Commission if that person is President, Vice-President, a Minister or Deputy Minister, a Member of Parliament or a serving civil servant.
3. Subject to this section, the office of a member of the Civil Service Commission shall become vacant—
   1. at the expiration of five years from the date of the appointment of that person, unless the person is reappointed to a new term not exceeding five years; or
   2. if any circumstances arise that, if he or she were not a member of the Commission, would cause that person to be disqualified for appointment as such.
4. A member of the Civil Service Commission may be removed from office by the President subject to the Public Appointments Committee being satisfied that the member is not competent to discharge his or her duties:Provided that nothing in this subsection shall prejudice the right of a member of the Civil Service Commission who is removed to appeal to the High Court against the decision to remove him or her.

192. Vacancy

1. If the office of Chairperson of the Civil Service Commission is vacant or the Chairperson is for any reason unable to perform the functions of his or her office, then those functions shall be performed by the Deputy Chairperson until that vacancy is filled or the Chairperson is able to resume his or her duties.
2. If both the Chairperson and the Deputy Chairperson are unable to perform their functions, then another of the members of the Commission as may be designated in that behalf by the remaining members of the Commission shall perform the functions of the Chairperson.
3. If at any time there are less than seven members of the Civil Service Commission and the Public Appointments Committee is not able to sit, either because of Parliament being dissolved or some other reason, the President may appoint such persons as qualified for appointment to the Commission and are required to act as members of the Commission:Provided that the appointment of a person to act as a member of the Civil Service Commission in accordance with this subsection shall lapse on his or her appointment as a full member of the Commission in accordance with section 191 (1), or until the office in which he or she is acting is filled after the Public Appointments Committee has resumed sitting.

193. Independence of the Civil Service

1. Members of the Civil Service shall ensure that the exercise of participation in political activities does not compromise their independent exercise of their functions, powers and duties as impartial servants of the general public.
2. The National Assembly may prescribe a category of civil servants, who by reason of their seniority shall not be able to directly participate in political activities:Provided that—
   1. the civil servants so restricted shall have the right to resign in order to participate directly in political activities;
   2. nothing in this section shall be deemed to prejudice any civil servant having the absolute right to vote in accordance with this Constitution;
   3. without prejudice to subsection (1) any civil servant whose functions are not directly concerned with the formulation and administration of the policies of the Government shall be exempt from restrictions under this section; and
   4. nothing in this section shall prejudice the right of any civil servant to hold office in, or be a member of, any association, group or professional body, the purposes of which are principally to represent their member’s interests in relation to the terms and conditions of employment or the general carrying on of any profession or trade or the promotion of any interest, not pertaining directly to the promotion of a political party, or its campaign or philosophy.
3. No Government or political party shall cause any civil servant acting in that behalf to exercise functions, powers or duties for the purposes of promoting or undermining the interest or affairs of any political party or individual member of that party, nor shall any civil servant acting in that behalf promote or undermine any political party or member of that party, save as is consistent with the provisions in this section.
4. No government or political party shall cause any civil servant, acting in that behalf to deploy resources, whether they be financial, material or human resources, for the purposes of promoting or undermining any political party or member of a political party or interest group, nor shall any civil servant acting in that behalf cause such deployment, save as prescribed by this Constitution or an Act of Parliament consistent with the provisions of subsection (1).
5. Any civil servant who contravenes this section shall be subject to such disciplinary measures as the Civil Service Commission considers appropriate, taking into account the gravity and circumstances of the contravention, subject to such regulations as may be prescribed by an Act of Parliament.
6. Where the Civil Service Commission is satisfied that a government or political party or member of a political party has acted in contravention of subsection (3) or subsection (4), the Civil Service Commission may initiate proceedings before the High Court for punitive damages and, in the case of a contravention of subsection (4), the recovery of such resources or sums equivalent to the benefit of the enjoyment of those resources from the government or political party or member of a political party who has so benefitted, as the case may be.

194. Chairing of boards, commissions, etc

Where a law confers power to appoint a board, commission, council, committee or similar body and to appoint, elect or designate the chairperson thereof, no person shall be appointed, elected or designated as chairperson of more than one such board, commission, council, committee or similar body.