Malawi 1994 Constitution (reviewed 2017)

CHAPTER IV. HUMAN RIGHTS

15. Protection of human rights and freedoms

1. The human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature, judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.
2. Any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of the Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights.

16. The right to life

Every person has the right to life and no person shall be arbitrarily deprived of his or her life:

Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.

17. Genocide

Acts of genocide are prohibited and shall be prevented and punished.

18. Liberty

Every person has the right to personal liberty.

19. Human dignity and personal freedoms

1. The dignity of all persons shall be inviolable.
2. In any judicial proceedings or in any other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.
3. No person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.
4. No person shall be subject to corporal punishment in connexion with any judicial proceedings or in any other proceedings before any organ of the State.
5. No person shall be subjected to medical or scientific experimentation without his or her consent.
6. Subject to this Constitution, every person shall have the right to freedom and security of person, which shall include the right not to be—
   1. detained without trial;
   2. detained solely by reason of his or her political or other opinions; or
   3. imprisoned for inability to fulfill contractual obligations.

20. Equality

1. Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition.
2. Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.

21. Privacy

Every person shall have the right to personal privacy, which shall include the right not to be subject to—

1. searches of his or her person, home or property;
2. the seizure of private possessions; or
3. interference with private communications, including mail and all forms of telecommunications.

22. Family and marriage

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.
3. All men and women have the right to marry and found a family.
4. No person shall be forced to enter into marriage.
5. Subsections (3) and (4) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.
6. No person over the age of eighteen years shall be prevented from entering into marriage.
7. [Repealed by Act No. 17 of 2015]
8. [Repealed by Act No. 17 of 2015]

23. Rights of children

1. All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them.
2. All children shall have the right to a given name and a family name and the right to a nationality.
3. Children have the right to know, and to be raised by, their parents.
4. All children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance.
5. Children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to—
   1. be hazardous;
   2. interfere with their education; or
   3. be harmful to their health or to their physical, mental or spiritual or social development.
6. A child shall be a person under the age of eighteen years.

24. Rights of women

1. Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right—
   1. to be accorded the same rights as men in civil law, including equal capacity—
      1. to enter into contracts;
      2. to acquire and maintain rights in property, independently or in association with others, regardless of their marital status;
      3. to acquire and retain custody, guardianship and care of children and to have an equal right in the making of decisions that affect their upbringing; and
      4. to acquire and retain citizenship and nationality.
   2. on the dissolution of marriage, howsoever entered into—
      1. to a fair disposition of property that is held jointly with a husband; and
      2. to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.
2. Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as—
   1. sexual abuse, harassment and violence;
   2. discrimination in work, business and public affairs; and
   3. deprivation of property, including property obtained by inheritance.

25. Education

1. All persons are entitled to education.
2. Primary education shall consist of at least five years of education.
3. Private schools and other private institutions of higher learning shall be permissible, provided that—
   1. such schools or institutions are registered with a State department in accordance with the law;
   2. the standards maintained by such schools or institutions are not inferior to official standards in State schools.

26. Culture and language

Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

27. Slavery, servitude and forced labour

1. No person shall be held in slavery or servitude.
2. Slavery and the slave trade are prohibited.
3. No person shall be subject to forced labour.
4. No person shall be subject to tied labour that amounts to servitude.

28. Property

1. Every person shall be able to acquire property alone or in association with others.
2. No person shall be arbitrarily deprived of property.

29. Economic activity

Every person shall have the right freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi.

30. Right to development

1. All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and persons with disabilities in particular shall be given special consideration in the application of this right.
2. The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.
3. The State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities.
4. The State has a responsibility to respect the right to development and to justify its policies in accordance with this responsibility.

31. Labour

1. Every person shall have the right to fair and safe labour practices and to fair remuneration.
2. All persons shall have the right to form and join trade unions or not to form or join trade unions.
3. Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.
4. The State shall take measures to ensure the right to withdraw labour.

32. Freedom of association

1. Every person shall have the right to freedom of association, which shall include the freedom to form associations.
2. No person may be compelled to belong to an association.

33. Freedom of conscience

Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.

34. Freedom of opinion

Every person shall have the right to freedom of opinion, including the right to hold, receive and impart opinions without interference.

35. Freedom of expression

Every person shall have the right to freedom of expression.

36. Freedom of the press

The press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

37. Acess to information

Every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his or her rights.

38. Freedom of Assembly

Every person shall have the right to assemble and demonstrate with others peacefully and unarmed.

39. Freedom of movement and residence

1. Every person shall have the right of freedom of movement and residence within the borders of Malawi.
2. Every person shall have the right to leave the Republic and to return to it.

40. Political rights

1. Subject to this Constitution, every person shall have the right—
   1. to form, to join, to participate in the activities of, and to recruit members for, a political party;
   2. to campaign for a political party or cause;
   3. to participate in peaceful political activity intended to influence the composition and policies of the Government; and
   4. freely to make political choices.
2. The State shall, provide funds so as to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency.
3. Save as otherwise provided in this Constitution, every person shall have the right to vote, to do so in secret and to stand for election for any elective office.

41. Access to justice and legal remedies

1. Every person shall have a right to recognition as a person before the law.
2. Every person shall have the right of access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues.
3. Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.

42. Arrest, detention and fair trial

1. Every person who is detained, including every sentenced prisoner, shall have the right—
   1. to be informed of the reason for his or her detention promptly, and in a language which he or she understands;
   2. to be held under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State;
   3. to consult confidentially with a legal practitioner of his or her choice, to be informed of this right promptly and, where the interests of justice so require, to be provided with the services of a legal practitioner by the State;
   4. to be given the means and opportunity to communicate with, and to be visited by, his or her spouse, partner, next-of-kin, relative, religious counsellor and a medical practitioner of his or her choice;
   5. to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and
   6. to be released if such detention is unlawful.
2. Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right—
   1. promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement;
   2. as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if the period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an independent and impartial court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be released;
   3. not to be compelled to make a confession or admission which could be used in evidence against him or her;
   4. save in exceptional circumstances, to be segregated from convicted persons and to be subject to separate treatment appropriate to his or her status as an unconvicted person;
   5. to be released from detention, with or without bail unless the interests of justice require otherwise;
   6. as an accused person, to a fair trial, which shall include the right—
      1. to public trial before an independent and impartial court of law within a reasonable time after having been charged;
      2. to be informed with sufficient particularity of the charge;
      3. to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;
      4. to adduce and challenge evidence, and not to be a compellable witness against himself or herself;
      5. to be represented by a legal practitioner of his or her choice or, where it is required in the interests of justice, to be provided with legal representation at the expense of the State, and to be informed of these rights;
      6. not to be convicted of an offence in respect of any act or omission which was not an offence at the time when the act was committed or omitted to be done, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;
      7. not to be prosecuted again for a criminal act or omission of which he or she has previously been convicted or acquitted, save upon the order of a superior court in the course of an appeal or review proceedings relating to that conviction or acquittal;
      8. to have recourse by way of appeal or review to a higher court than the court of first instance;
      9. to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her, at the expense of the State, into a language which he or she understands; and
      10. to be sentenced within a reasonable time after conviction;
   7. in addition, if that person is a person under the age of eighteen years, to treatment consistent with the special needs of children, which shall include the right—
      1. not to be sentenced to life imprisonment without possibility of release;
      2. to be imprisoned only as a last resort and for the shortest period of time consistent with justice and protection of the public;
      3. to be separated from adults when imprisoned, unless it is considered to be in his or her best interest not to do so, and to maintain contact with his or her family through correspondence and visits;
      4. to be treated in a manner consistent with the promotion of his or her sense of dignity and worth, which reinforces respect for the rights and freedoms of others;
      5. to be treated in a manner which takes into account his or her age and the desirability of promoting his or her reintegration into society to assume a constructive role;
      6. to be dealt with in a form of legal proceedings that reflects the vulnerability of children while fully respecting human rights and legal safeguards; and
   8. in addition, if that person is a person with a disability, in recognition of his or her particular vulnerability, to be held, wherever possible, in separate accommodation.

43. Administrative justice

Every person shall have the right to—

1. lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and
2. be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected.

44. Limitations on rights

1. No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.
2. Laws prescribing restrictions or limitations shall not negate the essential content of the right or freedom in question, and shall be of general application.
3. Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law.
4. Wherever it is stated in this Constitution that a person has the right to the services of a legal practitioner or medical practitioner of his or her own choice, that right shall be without limitation, save where the State is obliged to provide such services of a legal practitioner or medical practitioner, in which case an Act of Parliament may prescribe that the choice of the legal practitioner or medical practitioner should be limited to those in Governmentservice or employment.

45. Derogation and public emergency

1. No derogation from rights contained in this Chapter shall be permissible save to the extent provided for by this section and no such derogation shall be made unless there has been a declaration of a state of emergency within the meaning of this section.
2. There shall be no derogation with regard to—
   1. the right to life;
   2. the prohibition of torture and cruel, inhuman or degrading treatment or punishment;
   3. the prohibition of genocide;
   4. the prohibition of slavery, the slave trade and slave-like practices;
   5. the prohibition of imprisonment for failure to meet contractual obligations;
   6. the prohibition on retrospective criminalization and the retrospective imposition of greater penalties for criminal acts;
   7. the right to equality and recognition before the law;
   8. the right to freedom of conscience, belief, thought and religion and to academic freedom; or
   9. the right to habeas corpus.
3. The President may declare a state of emergency—
   1. only to the extent that it is provided for in this section;
   2. only with the approval of the Defence and Security Committee of the National Assembly;
   3. only in times of war, threat of war, civil war or widespread natural disaster;
   4. only with regard to the specific location where that emergency exists, and that any declaration of a state of emergency shall be publicly announced; and
   5. only after the state of emergency has been publicly announced.
4. Derogation from the rights contained in this Chapter, other than the rights listed in subsection (2), shall be permissible during a state of emergency within the meaning of this section and to the extent that—
   1. such derogation is consistent with the obligations of Malawi under international law; and
   2. in the case of—
      1. war or threat of war, it is strictly required to prevent the lives of defensive combatants and civilians as well as legitimate military objectives from being placed in direct jeopardy; or
      2. a widespread natural disaster, it is strictly required for the protection and relief of those people and facilities whether in or outside the disaster area.
5. The declaration of a state of emergency and any action taken in consequence thereof shall be in force for a period of not more than twenty-one days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members.
6. The High Court shall be competent to hear applications challenging the validity of a declaration of a state of emergency, any extension thereof, and any action taken, including any regulation enacted, under such declaration.
7. Where a person is detained under a state of emergency such detention shall be subject to the following conditions—
   1. an adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible and in any case not later than forty-eight hours of detention;
   2. the name of every detainee and a reference to the measures in terms of which he or she is being detained shall be published in the Gazette within five days of his or her detention;
   3. when rights entrenched in section 19 (6) (a) or section 42 (2) (b) have been suspended—
      1. the detention of a person shall, as soon as it is reasonably possible but not later than ten days after his or her detention, be reviewed by a court, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order;
      2. a detainee shall at any stage after the expiry of a period of five days after a review under subparagraph (i) be entitled to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order;
   4. the State shall for the purpose of a review referred to in paragraph (c) submit written reasons to justify the detention or further detention of the detainee to the court, and shall furnish the detainee with such reasons not later than two days before the review.
8. If a court finds the grounds for the detention of a person to be unjustified or illegal it shall order his or her release and that person shall not be detained again on the same grounds unless the State shows good cause to a court prior to such re-detention.
9. Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.

46. Enforcement

1. Save in so far as it may be authorized to do so by this Constitution, the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of Government shall not take any action, which abolishes or abridges the rights and freedoms enshrined in this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.
2. Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled—
   1. to make application to a competent court to enforce or protect such a right or freedom; and
   2. to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.
3. Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated.
4. A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.
5. The law shall prescribe criminal penalties for violations of those non-derogable rights listed in section 44 (1).