Acknowledgement
of expert inputs by Commissioners
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While acknowledging the expertise provided by
the team of experts mentioned above, it must also be acknowledged that
there was considerable technical, expert and professional input from individual
members of the Commission. The range of their input was wide, based on
their expert knowledge and experience of the working of the Constitution
as interpreted by the courts and as understood by Parliamentarians in their
debates and also as understood by the general public. Some members of the
Commission made contributions based on their expert knowledge of international
treaties and conventions, particularly in relation to the rights guaranteed
in the Constitution. There were valuable contributions from some members
from the perspective of their expert knowledge of the English Language
and some from the perspective of their expert knowledge and experience
of the workings of the executive branch of the Government.
Above all, all members exhibited considerable commitment to their task
and this was evident, in part, from their high level participation in the
deliberations of the Commission.
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The Malawi Constitution was adopted in 1994.
It was made to operate provisionally for one year during which period Parliament
was at liberty to make amendments. Parliament made a number of substantive
amendments before the Constitution finally became fully operational in
1995. Currently, the substance of the Constitution is generally acceptable
and is admired internationally. However, since 1995 the text of the Constitution
has been the subject of extensive public comment, extensive and sometimes
heated debates in Parliament and differing interpretations in the courts.
In addition to several significant issues which appeared, at times,
to threaten the smooth and effective operation of the Constitution, there
were many lesser matters where obvious errors called for correction. There
were also several uncertain points which needed to be clarified. It therefore
became evident that there was a need to revisit the text of the Constitution
in order to resolve these issues. Not only was this necessary in order
to ensure the effective operation of the Constitution but also to bolster
public confidence in the Constitution. Only when this has been done will
it be appropriate to provide authoritative translations into local languages
and to take steps to ensure that the contents of the Constitution and the
rights that it protects are known amongst the population as a whole.
The Constitution, in Chapter XII, establishes the institution of the
Law Commission as the State institution entrusted with the responsibility
to review and make recommendations relating to the laws of Malawi, including
the Constitution itself. The Law Commissioner, believing that it was of
the first importance that the Constitution, as the supreme law of the land,
should enjoy widespread public confidence, initiated a "clean up" exercise
of the Constitution to address the concerns arising from the issues mentioned
above.
Thus, a special Law Commission was appointed after consultation with
the Judicial Service Commission (as required by section 133 of the Constitution)
with the membership set out above.
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The Commission's formal mandate was-
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to identify overlaps and repetitions between and within sections and Chapters;
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to check for consistency and accuracy throughout the text; and
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to make textual and editorial suggestions as to how any overlaps and inconsistencies
identified might be corrected.
Work Method
The Commission met in several sessions, at all times in plenary, during
the months of July, August and September 1998. All meetings were held in
Lilongwe and the venue changed between the Capital Hotel and Lilongwe Hotel.
As a working procedure, the Commission decided to have some members
serve as Chairpersons to guide its proceedings and the following were elected
as such-
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Justice M.P. Mkandawire, Chairperson
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The Very Rev. Fr. Constantine A. Kaswaya, First Deputy Chairperson
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Mr. R.N.L. Nkomba, Second Deputy Chairperson
With the presence of three senior members of the Clergy on the Commission,
each day of meetings was opened and closed with a prayer by one of those
members in turn. The Commission considers this particular role of the Clergy
to have been an invaluable contribution to the successful outcome of its
deliberations of each day. The Commission wishes to register its special
tribute to the three members concerned.
The Commission considered each Chapter of the Constitution in turn.
In this regard, the Commission was generally guided by a compilation of
written comments and observations made by the Law Commissioner in his Paper
as appended to this report for reference. However, members were free to
raise any matter about the text of the Constitution that fell within the
Commission's mandate and to make suggestions as to how such matters could
be addressed. The result was a very detailed consideration of the text
of the Constitution and the Commission took the approach of examining each
and every section of the Constitution in sequence.
For the purpose of this task, the Commission recognized that the text
of the Constitution consisted of the following four enactments, read together
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the Constitution, as enacted under the Republic of Malawi (Constitution)
Act, 1994 (Act No. 20 of 1994);
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the Republic of Malawi (Constitution) (Amendment) Act, 1994 (Act No. 31
of 1994);
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the Constitution (Amendment) Act, 1995 (Act No. 6 of 1995);
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the Constitution (Amendment) Act, 1995 (published as Act No. 1 of 1997).
Copies of these enactments are available at the Law Commission.
The Commission heard or received presentations from representatives
of a number of interest sectors, namely-
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the Young Voices groups, regarding the rights of children under section
23 of the Constitution;
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Women's Rights groups, regarding the rights of women under section 24 of
the Constitution;
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the Media, regarding freedom of expression, freedom of the press and freedom
of access to publicly held information under section 35, 36 and 37, respectively;
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the Electoral Commission on Chapter VII of the Constitution, dealing with
national and local government elections;
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the Ministry of Local Government on Chapter XIV of the Constitution, dealing
with local government institutions; and
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the Malawi Army on Chapter XVI relating to the Malawi Defence Forces.
In cases of some of the presentations mentioned above, there were written
submissions either in place of, or to support, oral presentations. The
Commission's attention was also drawn to a UNDP sponsored study on local
governance and decentralisation which made recommendations for some technical
amendments in relation to the Chapter on local government. Copies of these
written submissions and recommendations have been attached to this Report
for reference.
There were three technical papers presented to the Commission. Two of
those were presented by Professor Christopher Forsyth, first, on the term
"public office" as used in the Constitution and interpreted by the courts
and another on the question of the "quorum" for meetings of Parliament
as interpreted in rulings by the Speaker during proceedings in the House
and as interpreted by the courts. The third technical paper was presented
by Professor Erasmus and it addressed the apparent confusion and ambiguity
in relation to the provisions of sections 44 and 45, read together, on
derogation, limitations and restrictions of the rights guaranteed in Chapter
IV of the Constitution. These three papers are also appended to this Report
for reference.
During the course of its deliberations, the Commission identified many
matters within its mandate all of which it has sought to resolve through
recommendations for amendment to the Constitution. Each recommendation
will be accompanied with the reasons for the recommendation and a proposed
amended text. The amended text is shown in bold. To assist in understanding
the Report, short subtitles set out in italics in square brackets
have been inserted at the point of introducing each section to reflect
the gist of what was discussed in relation to that section. These subtitles
are not to be regarded as a substitute for the marginal notes appearing
in the Constitution.
It is advised that this Report be read with a copy of the Constitution
at hand. Furthermore, two Constitutional Amendment Bills are appended as
schedules to this Report. They give effect, in legislative form, to the
recommendations contained in the Report.
Through its deliberations, the Commission inevitably identified several
matters in respect of which the Commission considered there was a strong
case for reform even though they fell outside its mandate. Having regard
to the importance of these matters, the Commission has dealt with them
at the appropriate point in this Report but has not drafted the necessary
constitutional amendments to give effect to them. However, the Commission
recommends that these matters should receive close and early attention
by the appropriate organs of State.
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