Malawi 1994 Constitution (reviewed 2017)

CHAPTER VII. ELECTIONS

75. The Electoral Commission

1. There shall be an Electoral Commission which shall consist of a Chairman who shall be a Judge nominated in that behalf by the Judicial Service Commission and such other members, not being less than six, as may be appointed in accordance with an Act of Parliament.
2. A person shall not be qualified to hold the office of a member of the Electoral Commission if that person is a Minister, Deputy Minister, a member of Parliament or a person holding public office.
3. Subject to this section, a person shall cease to be a member of the Electoral Commission—
   1. at the expiration of four years from the date of his or her appointment, unless re- appointed to a new four-year term; or
   2. if any circumstances arise that, if that person were not a member of the Electoral Commission, he or she would be disqualified for appointment as such.
4. A member of the Electoral Commission may be removed from office by the President on the recommendation of the Public Appointments Committee on the grounds of incapacity or incompetence in the performance of the duties of that office.

76. Powers and functions

1. The Electoral Commission shall exercise such functions in relation to elections as are conferred upon it by this Constitution or by an Act of Parliament.
2. The duties and functions of the Electoral Commission shall include—
   1. to determine constituency boundaries impartially on the oasis of ensuring that constituencies contain approximately equal numbers of voters eligible to register, subject only to considerations of—
      1. population density;
      2. ease of communication; and
      3. geographical features and existing administrative areas;
   2. to review existing constituency boundaries at intervals of not more than five years and alter them in accordance with the principles laid down in subsection (2) (a);
   3. to determine electoral petitions and complaints related to the conduct of any elections;
   4. to ensure compliance with the provisions of this Constitution and any Act of Parliament; and
   5. to perform such other functions as may be prescribed by this Constitution or an Act of Parliament.
3. Any person who has petitioned or complained to the Electoral Commission shall have a right to appeal to the High Court against determinations made under subsections (2) (c) and (2) (d).
4. The Electoral Commission shall exercise its powers, functions and duties under this section independent of any direction or interference by other authority or any person.
5. Without prejudice to subsection (3)—
   1. the High Court shall have jurisdiction to entertain applications for judicial review of the exercise by the Electoral Commission of its powers and functions to ensure that such powers and functions were duly exercised in accordance with this Constitution or any Act of Parliament; and
   2. the National Assembly shall confirm all determinations by the Electoral Commission with regard to the drawing up of constituency boundaries but may not alter the boundaries of any constituency, except upon the recommendation of the Electoral Commission.

77. The franchise

1. All persons shall be eligible to vote in any general election, by-election, presidential election, local government election or referendum, subject only to this section.
2. Subject to subsection (3), a person shall be qualified to be registered as a voter in a constituency if, and shall not be so qualified unless, at the date of the application for registration that person—
   1. is a citizen of Malawi or, if not a citizen, has been ordinarily resident in the Republic for seven years;
   2. has attained the age of eighteen years; and
   3. is ordinarily resident in that constituency or was born there or is employed or carries on a business there.
3. No person shall be qualified for registration as a voter in a constituency if that person—
   1. is under any law in force in the Republic adjudged or otherwise declared to be mentally incompetent;
   2. is under sentence of death imposed by a court having jurisdiction in the Republic, either before or after the appointed day; or
   3. is disqualified from registration as a voter on the grounds of his or her having been convicted of any violation of any law relating to elections passed by Parliament and in force at the time of, or after, the commencement of this Constitution, but such disqualification shall be valid only with respect to registration for the election in question and the person so disqualified shall be qualified to be registered as a voter in the nextor any subsequentelection.
4. Where any person is qualified to be registered in more than one constituency as a voter, he or she may be so registered only in one of the constituencies.
5. No person shall exercise more than one vote in any one election.