Malawi 1994 Constitution (reviewed 2017) - Page 6 of 24

Table of Contents

CHAPTER VI. THE LEGISLATURE

48. Parliament

All legislative powers of the Republic shall be vested in Parliament which shall have the powers and responsibilities set out in this Constitution.
An Act of Parliament shall have primacy over other forms of law, but shall be subject to this Constitution.
Any question proposed for decision by the National Assembly shall be decided by a majority of the votes of the members present and voting, unless this Constitution or any other Act of Parliament otherwise provides.

49. Definitions

For the purposes of this Constitution, unless otherwise provided, “Parliament” consists of the National Assembly and the President as Head of State.
An Act of Parliament shall be a Bill which has—
1. been laid before the National Assembly;
2. been passed in the National Assembly by a simple majority or such other majority as is otherwise required by this Constitution in respect of any particular Bill; and
3. been assented to by the President in accordance with this Chapter.
“Chamber” means the Chamber of the National Assembly.

50. Quorum

The quorum of the National Assembly shall be formed by the presence at the beginning of any sitting of at least one half plus one of the members of that Chamber entitled to vote, not including the Speaker or a presiding member.
If it is brought to the attention of the Speaker of the National Assembly or presiding member by any member of Parliament that there are less than the number of members prescribed by the Standing Orders and after such interval as may be prescribed by the Standing Orders, the Speaker of the National Assembly or presiding member ascertains that the number of members present is still less than that prescribed by the Standing Orders, he or she shall adjourn the proceedings of the National Assembly.

51. Qualifications of members of Parliament

A person shall not be qualified to be nominated or elected as a member of the Parliament unless that person—
1. is a citizen of the Republic who at the time of nomination has attained the age of twenty-one years;
2. is able to speak and to read the English language well enough to take an active part in the proceedings of Parliament; and
3. is registered as a voter in a constituency.
Notwithstanding subsection (1), no person shall be qualified to be nominated or elected as a member of Parliament who—
1. owes allegiance to a foreign country;
2. is, under any law in force in the Republic, adjudged or otherwise declared to be mentally incompetent;
3. has, within the last seven years, been convicted by a competent court of a crime involving dishonesty or moral turpitude;
4. is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in the Republic;
5. holds, or acts, in any public office or appointment, except where this Constitution provides that a person shall not be disqualified from standing for election solely on account of holding that office or appointment or where that person resigns from that office or appointment in order to stand;
6. belongs to, and is serving in the Defence Force of Malawi or the Malawi Police Service; and
7. has, within the last seven years, been convicted by a competent court of any violation of any law relating to election of the President or election of members of Parliament or local government elections.
For the purposes of subsection (2) (e), an appointment as a Minister or Deputy Minister in accordance with section 94 (1) shall not be construed to be an appointment to a public office or to be a public appointment.

52. Oath of allegiance

Every member of Parliament, before taking his or her seat, and every officer of Parliament, before assuming duties of his or her office, shall take and subscribe before the Chief Justice in the National Assembly—

the oath of allegiance in the form prescribed by law; and
such other oaths for the due performance of their respective offices as may be prescribed by law.

53. The Speaker and Deputy Speakers

There shall be a Speaker of the National Assembly who shall be elected by majority vote of the members thereof at the first sitting after every dissolution of the National Assembly.
The members of the National Assembly shall elect one or more from among themselves to be Deputy Speaker or Deputy Speakers of the National Assembly at the first sitting after a general election.
The office of Speaker or Deputy Speaker shall become vacant—
1. on the death or resignation of the holder;
2. if the holder ceases to be a member of the National Assembly;
3. if the holder becomes President, Vice-President, a Minister or a Deputy Minister; or
4. if the National Assembly, by a resolution supported by the votes of not less than two-thirds of the members of the National Assembly, resolves that the holder be removed from office:
Provided that the Speaker or the Deputy Speaker shall have the right to be heard by the Chamber on his or her own motion on any matter relating to his or her removal from office.
The Speaker, or in his or her absence, such Deputy Speaker as the Speaker has nominated, shall preside at every sitting of the National Assembly:Provided that in the absence of the Speaker and every Deputy Speaker, the members of the National Assembly may elect one of their number to act as Speaker for as long as there is no Speaker or Deputy Speaker.
The Speaker, the Deputy Speaker or any other presiding member shall discharge his or her functions and duties and exercise such powers as he or she has by virtue of that office independent or the direction or interference of any body or authority, save as accords with the express will and the Standing Orders of the National Assembly.
Notwithstanding that the Speaker, Deputy Speaker or any other presiding member has been elected as a member of a political party to the National Assembly he or she shall not be subject to the control, discipline, authority or direction of that political party or any other political party in the discharge of the functions and duties of that office and in the exercise of the powers of that office.
The Speaker may, where the matter under debate in the National Assembly pertains to his or her constituency, temporarily vacate the Speaker’s seat and participate in that debate and exercise a deliberative vote where there is voting on that matter.

54. Casting vote

Subject to section 53 (7) the Speaker shall not have a deliberative vote, but if the votes of the National Assembly are equally divided upon any question, he or she shall exercise the casting vote.
Any presiding member shall retain his or her original deliberative vote as a member and shall, in addition, have and exercise a casting vote where the votes of the National Assembly on any question are equally divided.

55. The Clerk

There shall be a Clerk to the National Assembly who shall be a public officer and shall assist the Speaker of the National Assembly and perform such other functions and duties as the Speaker may direct.

56. The right to regulate procedure

Subject to this Constitution, the National Assembly, may by Standing Order or otherwise regulate its own procedure.
Save as otherwise provided in this Constitution, the National Assembly may act unless more than two-thirds of all the seats of the National Assembly are vacant.
The presence or participation of any person not entitled to be present or to participate in the proceedings of the National Assembly shall not invalidate those proceedings.
The National Assembly shall provide access to the press and members of the public, except where a motion is passed with reasons prohibiting public access in the national interest.
The proceedings of Parliament shall be conducted in the English language and such other languages as the National Assembly may prescribe.
Parliament may establish any committees of its members and may form joint committees for the scrutiny of legislation and performance of other functions, except voting on motions and Bills.
In addition to any committee appointed under subsection (6), there shall be a Public Appointments Committee, a Budget Committee and a Legal Affairs Committee of the National Assembly which shall each—
1. be appointed by the National Assembly with proportionate representation from all parties represented in the National Assembly;
2. be appointed within thirty days of the first sitting of the National Assembly after a general election and thereafter annually; and
3. perform such functions as are conferred on them by this Constitution or by an Act or resolution of Parliament or by the Standing Orders of Parliament.

57. Money bills

Except upon the recommendation of the Minister responsible for Finance, signified in writing, the National Assembly shall not—

proceed upon any Bill or any amendment to a Bill that, in the opinion of the person presiding, makes provision for any of the following purposes—
1. for the imposition of tax or the alteration of tax;
2. for the imposition of any charge upon the Consolidated Fund, or the alteration of any such charge;
3. for the payment, issue or withdrawal from the Consolidated Fund of any moneys not charged thereon, or any increase in the amount of such payment, issue or withdrawal; or
4. for the composition or remission of any debt due to the Government;
proceed upon any motion or any amendment to a motion the effect of which, in the opinion of the person presiding, would be to make provision for any of the purposes specified in subsection (a); or
receive any petition that, in the opinion of the person presiding, requests that provision be made for any of the purposes specified in paragraph (a).

58. Subsidiary legislation

Parliament may, with respect to any particular Act of Parliament, delegate to the executive or to the judiciary the power to make subsidiary legislation within the specification and for the purposes laid out in that Act and any subsidiary legislation so made shall be laid before Parliament in accordance with its Standing Orders.
Notwithstanding subsection (1), Parliament shall not have the power to delegate any legislative powers which would substantially and significantly affect the fundamental rights and freedoms recognized by this Constitution.

59. Sessions, meetings and sittings

Every meeting of the National Assembly shall be held at such place within Malawi and shall commence at such time as the Speaker of the National Assembly, in consultation with the President, may appoint and the sittings of the National Assembly after the commencement of that meeting shall be held at such times and on such days as the National Assembly shall appoint:Provided that—
1. the President, in consultation with the Speaker of the National Assembly, may summon, on extraordinary occasions, a meeting of the National Assembly; and
2. the President may, in consultation with the Speaker of the National Assembly, prorogue the National Assembly.
There shall be held at least two meetings of the National Assembly in each session.
A session of the National Assembly shall be opened by the President on such date as the President, in consultation with the Speaker of the National Assembly, shall determine.
A session shall be of such duration as the President, in consultation with the Speaker of the National Assembly, shall determine.

60. Privileges and immunities

The Speaker, every Deputy Speaker, and every member of the National Assembly shall, except in cases of treason, be privileged from arrest while going to, returning from or while in the precincts of the National Assembly and shall not, in respect of any utterances that forms part of the proceedings in the National Assembly, be amenable to any other action or proceedings in any court, tribunal or body other than Parliament.
All official reports and publications of Parliament or of its proceedings or of the proceedings of any committee of the Parliament shall be privileged and utterances made in the Parliament or in any committee thereof wherever published shall be protected by absolute privilege.
The National Assembly and any committee of the National Assembly shall have the power to conduct investigations and exercise the power to subpoena the attendance of any person or office holder whosoever as required in connexion with the prudentexercise of the functions of the National Assembly and failure to attend without leave or without valid reason or excuse shall be held to be a contempt of the National Assembly or committee in question.
The National Assembly shall lay down in Standing Orders the procedure to be followed by the National Assembly or committee concerned in holding any person in contempt of the National Assembly or committee; and such procedure shall comply with the principles of natural justice so far as the circumstances allow.

61. Member’s interests

A member of Parliament, where he or she has a direct or indirect material interest in a matter being debated by the National Assembly shall—
1. disclose such interest to the National Assembly; and
2. not be entitled to vote on that matter without leave of the National Assembly.
Where a member of Parliament fails to disclose a material interest in accordance with subsection (1) that member shall be guilty of contempt of the National Assembly.

62. Composition of the National Assembly

The National Assembly shall consist of such number of seats, representing every constituency in Malawi, as shall be determined by the Electoral Commission.
Each constituency shall freely elect any person, subject to this Constitution and an Act of Parliament, to represent it as a member of the National Assembly in such manner as may be prescribed by this Constitution or an Act of Parliament.

63. Vacancies in the National Assembly

The seat of a member of the National Assembly shall become vacant—
1. if the National Assembly has been dissolved;
2. if the member dies or resigns his or her seat;
3. if the member ceases to be a citizen of Malawi;
4. if the member assumes the office of President or Vice-President;
5. if any circumstances arise that, if he or she were not a member of the National Assembly, would cause that member to be disqualified for election under this Constitution or any other Act of Parliament; or
6. if the National Assembly declares a member’s seat vacant in accordance with such Standing Orders as may permit or prescribe the removal of a member for good and sufficient reason provided that they accord with the principles of natural justice.
The Speaker of the National Assembly shall give notice in the Gazette in the event that the seat of any member of the Assembly shall become vacant under this section:Provided that—
1. Parliament shall make provision for holding by-elections to fill any vacancy that shall occur;
2. any by-election to fill a vacancy that occurs shall be held within sixty days after the seat of the member becomes vacant or, if in the opinion of the Speaker the circumstances do not so admit, then as expeditiously as possible after the expiry of that period; and
3. any member elected at a by-election shall serve until such time as his or her seat becomes vacant in accordance with subsection (1).
The Speaker may, upon a motion of the National Assembly, postpone the declaration of a vacant seat for such period as that motion prescribes so as to permit any member to appeal to a court or other body to which an appeal lies against a decision which would require that member to vacate his or her seat in accordance with this section.

1. [Repealed by Act No. 6 of 1995]

65. Crossing the floor

1. 1. The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or association or organization whose objectives or activies are political in nature.
  2. Notwithstanding subsection (1), all members of all parties shall have the absolute right to exercise a free vote in any and all proceedings of the National Assembly, and a member shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the National Assembly, of which he or she is a member.

66. Functions and powers of the National Assembly

1. 1. The National Assembly shall be a directly elected Chamber which shall have power, subject to this Constitution, to—
    1. receive, amend, accept or reject Government Bills and Private Bills;
    2. initiate Private Member’s Bills on the motion of any member and amend, accept or reject all Private Member’s Bills;
    3. debate and vote motions in relation to any matter including motions to indict and convict the President or Vice-President by impeachment;
    4. exercise such other functions and powers as are conferred on it by this Constitution or by an Act of Parliament; and
    5. take all actions incidental to and necessary for the proper exercise of its functions.
  2. For the purposes of this Constitution—
    1. a Government Bill shall be a Bill promulgated by the Government and introduced to Parliament on behalf of the Government;
    2. a Private Bill shall be—
      1. promulgated by an agency that is not part of the Government; and
      2. introduced to Parliament on behalf of that agency where that agency is mandated by an Act of Parliament so to do;
    3. a Private Member’s Bill shall be—
      1. promulgated by a member of Parliament; and
      2. introduced by that member in the National Assembly in accordance with its own procedure.

67. Dissolution of the National Assembly

1. The National Assembly shall stand dissolved on the 20th of March in the fifth year after its election, and the polling day for the general elections for the next National Assembly shall be the Tuesday in the third week of May that year:Provided that where it is not practicable for the polling to be held on the Tuesday in the third week of May, the polling shall be held on a day, within seven days from that Tuesday, appointed by the Electoral Commission; and provided further that, in the case of the elections to be held in 1999, the polling shall be held on a day, not later than 15th June, 1999, appointed by the Electoral Commission.
2. This section shall not preclude the Electoral Commission from setting other days for polling in the general election for special classes or categories of voters, provided that such polling takes place not more than two days, before or after the polling day, excluding Sundays.
3. The first meeting of the National Assembly shall commence on a date to be appointed by the President occurring within forty-five days after the polling day or, where polling takes place on more than one day, within forty-five days after the last polling day.
4. If, between the dissolution of the National Assembly and the general election that follows, the President is of the opinion that a constitutional crisis or emergency has arisen which requires urgent legislation or consideration by the National Assembly, he or she may reconvene the National Assembly for that purpose alone, but in any event, that reconvened National Assembly, shall stand dissolved on the date of the general election.
5. Notwithstanding the dissolution of the National Assembly on the date specified in subsection (1), every person who, immediately before the dissolution of the National Assembly in accordance with subsection (1), is a member of the National Assembly shall be entitled to receive his or her remuneration and other benefits up to and including the last date preceding the general election.
[Repeal by Act No. 4 of 2001 ]

73. Presidential assent

Where a Bill is presented to the President for assent, the President shall either assent or withhold assent and shall do so within twenty-one days from the date the Bill is presented to him or her.
Where the President withholds assent to a Bill, the Bill shall be returned to the Speaker of the National Assembly by the President with a notification that the President’s assent has been withheld, including reasons therefor, and the Bill shall not be again debated by the National Assembly until after the expiry of twenty-one days from the date of the notification of that withholding.
If the Bill is debated again and passed by a majority of the National Assembly at any time between the date of the expiry of the twenty-one days referred to in subsection (2) and three months from that date, the Bill shall again be presented for assent by the President.
Where a Bill is again presented to the President for assent in accordance with subsection (3), the President shall assent to the Bill within twenty-one days of its presentation.
When a Bill that has been duly passed is assented to in accordance with this Constitution, the Clerk shall cause it to be published immediately in the Gazette.

74. The coming into force of laws

No law made by Parliament shall come into force until it has been published in the Gazette, but Parliament may prescribe that a law shall not come into force until some later date after its publication in the Gazette.