Malawi 1994 Constitution (reviewed 2017)

CHAPTER XXII. TRANSITIONAL ISSUES

198. Republic, etc., to be constituted in accordance with this Constitution

The Republic of Malawi the organs of State and the offices referred to in this Constitution shall be defined and constituted in accordance with this Constitution.

199. Status of this Constitution

This Constitution shall have the status as supreme law and there shall be no legal or political authority save as is provided by or under this Constitution.

200. Saving of laws in force

Except in so far as they are inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law, as if they had been made in accordance with and in pursuance of this Constitution:

Provided that any laws currently in force may be amended or repealed by an Act of Parliament or be declared unconstitutional by a competent court.

201. Elections to the National Assembly

For the purposes of this Constitution the first National Assembly after the date of commencement of this Constitution shall be composed of those persons successfully elected to the National Assembly in accordance with the Act of Parliament then in force for the election of members of the National Assembly.

202. Election to the office of President

For the purposes of this Constitution the first President after the date of commencement of this Constitution shall be the person successfully elected in accordance with the Act of Parliament then in force for the election of a person to the office of President.

203. Saving of judicial power

The High Court shall have the same jurisdiction, powers and procedures as before the commencement of this Constitution, subject to amendment or repeal of such powers by an Act of Parliament in accordance with this Constitution.

204. Pending legal actions

1. All legal actions which, at the commencement of this Constitution, are pending or being undertaken before any court other than before the Supreme Court of Appeal, the High Court, a Magistrate Court, a District Traditional Appeal Court, District Traditional Court, a Grade A Traditional Court, or a Grade B Traditional Court shall be commenced or continued before the High Court of Malawi or before such Magistrate’s court or District Traditional Appeal Court or District Traditional Court or Grade A Traditional Court or Grade B Traditional Court as the Registrar of the High Court shall direct.
2. All legal actions which, at the commencement of this Constitution, are pending or being undertaken before any Magistrate Court shall be commenced or continued before that court which shall have the same jurisdiction, powers and procedures as before the commencement of this Constitution subject to amendment or repeal of such powers by an Act of Parliament.
3. All legal actions which, at the commencement of this Constitution, are pending or being undertaken before a District Traditional Appeal Court, a District Traditional Court, a Grade A Traditional Court or a Grade B Traditional Court before the commencement of this Constitution shall be commenced or continued before that court which shall have the same jurisdiction, powers and procedures as before the commencement of this Constitution subject to amendment or repeal of such powers by an Act of Parliament.
4. Appeals against the decisions of a District Traditional Appeal Court or a District Traditional Court shall lie to the High Court which, in hearing such appeals, may sit with assessors appointed in accordance with an Act of Parliament.

205. Judgments and sentences pending execution

All judgments or sentences pending execution shall be executed as if such judgments or sentences were ordered in accordance with this Constitution:

Provided that where the Constitution provides new grounds for appeal, any such appeal shall act as a stay of execution and the appeal shall be to the High Court.

206. Existing appointments

1. Subject to the provisions of this Constitution, any person holding office under any law in force on the date of the commencement of this Constitution shall continue to hold such office until such time as—
   1. that person is confirmed in that post, and such person shall be deemed to have been confirmed in that post after the end of one year from the appointed day.
   2. that person is replaced by another person appointed or elected to that post in accordance with this Constitution; or
   3. that person resigns or retires or is removed in accordance with this Constitution:

   Provided that where this Constitution has created an office with a different designation, but an equivalent function is exercised by an office existing at the time of the date of the commencement of this Constitution, a person occupying that office shall, from the date of commencement of this Constitution, have such powers, functions and designation as is prescribed for the equivalent office created by this Constitution.

2. For the purposes of section 52 and section 81(1), and only for that purpose, the person who at the commencement of this Constitution is holding the office of Chief Justice shall be deemed to be appointed under this Constitution as Chief Justice.

207. Vesting of lands, etc., in the Republic

Subject to the provisions of this Constitution, all lands and territories of Malawi are vested in the Republic.

208. Savings of rights of Government in property

The Government shall have title to all rights in property which are vested in the Government of Malawi on the date of the commencement of this Constitution save as otherwise provided by section 209 (2) and provided that the disposal of rights in property where title is vested in the Government shall be made in accordance with an Act of Parliament.

209. Continuation of rights of persons in property

1. All persons who have rights in property at the date of the commencement of this Constitution shall continue to have such rights under this Constitution and any other law.
2. This section shall not apply in respect of rights in property that have been acquired or vested by or on behalf of the Government where that property was acquired or vested at any time since 6th July, 1964, and where that right in property was obtained from citizens or permanent residents of Malawi—
   1. unlawfully according to the laws then in force in Malawi;
   2. by virtue of any law not being a penal law passed during that time that did not provide for adequate compensation; or
   3. through abandonment by reason of duress of circumstances.
3. For the purposes of this section “Government” shall mean the President, the Cabinet, the Ministries, other organs of the President and Cabinet and their agents, including individuals and bodies under the authority of the President, the Cabinet or the Ministries.
4. Rights in property which are not recognized by virtue of this section shall be vested in the National Compensation Fund and shall be disposed of in accordance with the principles, procedures and rules of the National Compensation Tribunal.
5. Persons occupying or using property vested in the National Compensation Fund shall continue to occupy and use that property, as if they retained full legal and equitable title until such time as the National Compensation Tribunal otherwise orders.

1. [Repealed by Act No. 4 of 2001]

211. International law

1. Any international agreement entered into after the commencement of this Constitution shall form part of the law of the Republic if so provided by an Act of Parliament.
2. Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament.
3. Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic.