CHAPTER VI - THE LEGISLATURE
Section 48 (3)
 -In the third line, delete the word "other" so that it reads-

", unless this Constitution or any Act of Parliament otherwise provides".
  The Constitution is not an Act of Parliament and therefore the word "other" has been incorrectly used.
Section 49 (2)
 This section defines what an Act of Parliament is. It states -"(2) Unless otherwise provided in this Constitution, an "Act of Parliament" shall be a Bill which has-

(i) been laid before and passed by a majority of the National Assembly;

(ii) been laid before and passed by a majority of the Senate; and

(iii) has been assented to by the President in accordance with this Chapter.".
 
There are a few points of difficulty in the meaning of this provision.
  Firstly, the phrase "Unless otherwise provided in this Constitution" is, in truth, only intended to qualify the majority required to pass a Bill into an Act of Parliament. A Bill for an Act to amend the Constitution, for example, requires in certain circumstances a two-thirds majority and not just a simple majority. But placed at the opening of the subsection, this phrase is capable of qualifying all other aspects of this subsection. For example, it could mean that the Constitution can prescribe a number of less than the majority of the Chamber to pass a Bill into an Act, a thing that would be contrary to democratic principles where the majority must rule. It could also mean that the Constitution could provide that a Bill need not be laid before both or either Chamber, or need not be assented to by the President, to be an Act of Parliament. What is required therefore is to remove this qualifying phrase from the opening of the subsection.
  The second difficulty is with the wording of paragraphs (i) and (ii) which, depending on where one places the poses in reading those paragraphs, is capable of importing the meaning that the laying of the Bill is to be not only before the Chamber but before the Chamber sitting with a majority of its membership. Yet in the context of this provision the requirement for a majority of the Chamber is for the passage of the Bill and not for its laying before the Chamber. These paragraphs needed to be punctuated with commas in appropriate places.
  Thirdly, of course, is the fact that the three paragraphs of the subsection ought to be numbered with letters (a), (b) and (c) in keeping with legislative drafting practice in Malawi where letters are used for the numbering of paragraphs and Roman numerals are used for subparagraphs.
  Subsection (2) of section 49 would better read, without in any way changing its intended meaning, as follows-
  "(2) An "Act of Parliament" shall be a Bill which has -

(a) been laid before the National Assembly and before the Senate;

(b) been passed in both the National Assembly and the Senate by simple majority or by such other majority as is otherwise required by this Constitution in respect of any particular Bill; and

(c) been assented to by the President in accordance with this Chapter".
Section 50 (2)
 -The section speaks of "person acting as Speaker" in reference to a member presiding over a Chamber in the absence of the Speaker. Such persons do not act in the office of the Speaker. If they are Deputy Speakers, they preside as Deputy Speakers and not as Acting Speaker. If they are persons other than the Speaker or Deputy Speakers, elected under the proviso to subsection (4) of section 53, they preside as presiding members. For language consistency with that proviso and also within the section itself the proper wording would be to refer to any such person as "a presiding member".
  "Standing Orders of the Chamber" and not "Standing Orders Chamber" (see the last line).
Section 51 (2) (e)
 This section disqualifies one from nomination or election as a member of the National Assembly if one-"(e) holds, or acts in, any public office or appointment....".
  The question must be asked as to what is meant by public office and in particular "public appointment". There are many public appointments beyond those of officers in the public service. A Minister's appointment, for example, would qualify as a public appointment. It is unimaginable that it was intended to bar Ministers from standing for election to Parliament, unless they first resign as Ministers. Public appointments could also extend to appointments to boards of directors of statutory corporations and to many other categories of appointment.
Section 53
 The marginal note should read

"The Speaker and Deputy Speakers" since the section deals with these two distinct offices.
Subsection (2)
 Instead of stating that "The members of each Chamber shall elect one or more persons to be Deputy Speaker or Deputy Speakers at the first sitting after a general elections.", the subsection should state that-
  "The members of each Chamber shall elect, from amongst the members of that Chamber, one or more persons to be Deputy Speaker or Deputy Speakers of the Chamber at the first sitting after the general elections.".

This makes it clear that the Speaker and Deputy Speakers are to be elected from the membership of the Chamber.

"a local government election" and not "a local election"
Subsection (3)
 The provisions of this subsection should extend to Deputy Speakers. Otherwise, there is no provision as to how the offices of Deputy Speakers become vacant.
Subsection (4)
 In the proviso, the word "session" to read "meeting" (see remarks in relation to section 59).
Subsection (5)
 Should make mention of "the Speaker, Deputy Speaker or any other presiding member".
Subsection (6)
 -"a presiding member" and not "a person acting as Speaker".
Section 56 (1)
 -"Standing Orders" and not "Standing Order"
Section 59
 This section has created an unfortunate confusion of certain terms in their application to the business of Parliament. The section provides for there to be sessions and sittings of Parliament and omits reference to meetings.
  In accepted and well-settled legal and constitutional terms, a Parliament of a country has sittings, meetings and sessions. A sitting occurs within or during a meeting and it is each day Parliament sits in the Chamber. A meeting is the period of several sittings or days when Parliament assembles in one place. A session is a period, usually of one year, within which several meetings are held such as-
  (a) the meeting to introduce to the Nation the business of State that will come before Parliament during the session (in Malawi referred to as the Meeting of the State Opening of Parliament);

(b) the budget meeting which in Malawi has been occurring during the month of March and will now be occurring in June; and

(c) the meeting that has been occurring in mid year (about June/July) in Malawi principally to deliberate on legislation and other matters of State.
  That is the position which accords with the traditions of Parliament in Commonwealth jurisdictions and it remains the position under the new Standing Orders of Parliament made pursuant to the new 1994 Constitution as was the case in the Standing Orders under the previous Constitution.

 
Section 59
 should therefore be corrected accordingly.
  The marginal note should read "Meetings, sittings and sessions
Subsection (1)
 It is quite clear that this subsection is addressing the holding of meetings and not sessions. To begin with, a session as described above cannot be held at a place and, then, in the proviso conferring powers on the President to summon Parliament in extraordinary circumstances the actual word used is "meeting", and correctly so.
  In subsection (1) therefore, the word "session" wherever appearing should be substituted by the word "meeting".
Subsection (2)
 This subsection provides that "there shall be at least two sittings of the National Assembly and of the Senate every year". Clearly, these are meant to be meetings and not sittings since this subsection builds upon subsection (1) which, as stated above, can logically be taken to refer to meetings.

And instead of "every year" the subsection should speak of "every session".

Subsection (2) should therefore be in the following terms-

"There shall be held at least two meetings of the National Assembly and of the Senate in each session".

The word "held" must be inserted for proper grammar and precision of meaning.
New Subsection (3)
 A new subsection should be added to provide for sessions as follows-

"(3) A session of the National Assembly and of the Senate shall be a period of twelve months beginning October of each year and ending September of the following year and shall be opened by the President during the month of October.".

The suggested choice of the period of a session as running from October to September merely follows the order of sessions of Parliament adopted in Malawi since the country attained its republican status in 1966. Thus, for example, the session which opened in October, 1997, is called the "Thirty-second Session of Parliament", mirroring thirty-two years since 1966. And the meeting that opened on 22nd May, 1998, is referred to as the "Third Meeting of the Thirty-second Session of Parliament", the other two being the Meeting held in March, 1998, and the Meeting held in October/November, 1997.
Section 60 (3)
 The powers conferred by this provision on the National Assembly and on the Senate to compel attendance of persons before those bodies should expressly be extended to the committees of those Houses. To the extent that these powers have the effect of restricting the liberty of the subject against whom they are exercised, it would be questionable as to whether a committee of either House could exercise those powers in the absence of an explicit provision. Yet attendance before either House will in practice take the form of attending before its committees.
  Thus, after the words "The National Assembly and the Senate" there should be inserted the words "and any committee thereof" and the word "each" which follows the word "shall" should be deleted.
  Additionally, the subsection must provide for a sanction for failure to attend. It would be questionable to impose a penal sanction on an individual without an express provision authorising such imposition.
  Thus, there should be added, at the end, the following words-
  "and failure to attend without leave or without valued reason or excuse shall be held to be in contempt of the Chamber or committee in question.".
Section 66
 This section specifies the powers and functions of the National Assembly. Among these functions is the function in paragraph (e), to-

"(e) exercise such other functions and powers as are conferred on it by this Constitution;".

The National Assembly is conferred various powers and functions under several Acts of Parliament. A few examples are powers under the Customs and Excise Act to confirm or approve tariffs of duty prescribed by the Minister, powers under the Stamp Duties Act to approve rates of stamp duty prescribed by the Minister, powers to grant various types of authorisations under the Finance and Audit Act and, lately, powers to confirm certain public appointments such as the appointment of members of the Electoral Commission under the Electoral Commission Act and the Director of the Anti-Corruption under the Corrupt Practices Act.

Paragraph (e) of section 66 needs to be extended to refer to functions and powers under Acts of Parliament. It should be amended to read-

"(e) exercise such other functions and powers as are conferred on it by this Constitution or by an Act of Parliament.".
Section 67 (2)
 The section is, in part, about the holding of the first meeting of the National Assembly following a general election, requiring that such meeting shall be held within forty-five days from the polling day. However, the section incorrectly makes reference to a session (and not a meeting) of the National Assembly. A session being a period of twelve months cannot be held on a day or be held at all.

Thus, the words-

", and the date of a session of the National Assembly shall be appointed by the President to commence within forty-five days..." should be deleted and replaced with the words-

"and the next meeting of the National Assembly following a general election shall be held from a date to be appointed by the President occurring within forty-five days...".
Subsection (2)
 as amended would read as follows-

"(2) Whenever the National Assembly is dissolved a general election of the members of the National Assembly shall be held within sixty days of the date of the dissolution and the next meeting of the National Assembly following a general election shall be held from a date, to be appointed by the President, occurring within forty-five days of the date appointed by the Electoral Commission as the polling day for the general election or, if more than one polling day is appointed, within forty-five days of the last polling day".
Section 68

Subsection (2)

 This subsection creates a body (called a Committee) which will be charged with the nomination of the thirty-two members of the Senate from various sectors of civil society, being those other than District Councillors or Chiefs.
  The subsection, however, refers to the Committee as the "Nominations Committee of the Senate". Clearly this is not a committee of the Senate. It even includes persons outside the Senate, namely, the Speaker of the National Assembly and the Ombudsman. The Committee should properly be called the "Senate Nominations Committee".
  Further, the subsection does not designate who will preside over the Committee. It is essential that leadership of the Committee is clearly spelt out to enable proper co-ordination of its business. Given the ranking of its members in terms of relative seniority, it would be reasonable to designate the Speaker of the National Assembly as the Chairperson of the Committee.
Subsection (2)
 will need to be amended so as
  (a) to refer to the Committee as the "Senate Nominations Committee" and not the "Nominations Committee of the Senate";

(b) to make the Speaker of the National Assembly the Chairperson of the Committee.

The subsection as amended would read as follows-

"(2) There shall be a Senate Nominations Committee which shall be formed within forty-five days of each local government election for the purpose of nominating the representatives referred to in subsection (1) (c) and which shall consist of the Speaker of the National Assembly, who shall be the Chairperson thereof, the Ombudsman and seven other members, being Senators elected under subsection (1) (a) or (b), appointed by the National Assembly on a motion by the Speaker of the National Assembly.".
  Further, the period of forty-five days (prescribed in this subsection) within which the Senate Nominations Committee is to be formed exceeds the thirty days period required by section 72 within which the tenure of the Senate shall commence after every local government election. There is need to reconcile these two provisions.
New Subsection (5)
 Section 68 does not explicitly designate the body which will conduct elections of members of the Senate under subsections (1) (a) and (b) of that section to come from amongst District Councillors and Chiefs. From the references made here and there to the Electoral Commission within the subsequent section 69, it would seem that the intention was to confer this responsibility on the Electoral Commission.
  There should therefore be added a new subsection as follows-
  "(5) The election of Senators under subsection (1) (a) and (b) shall be conducted by the Electoral Commission.".
Section 69

Subsection (1),

Paragraph (f)

 Since both Chambers of Parliament, that is the National Assembly and the Senate, have powers to making Standing Orders, it will make for clarity to specify the relevant Chamber wherever mention is made of Standing Orders and certainly in this particular provision. In this paragraph therefore after the words "Standing Orders" should be inserted the words "of the Senate".
Subsection (2)
 Notice of a vacancy in the seat of a member of the Senate should also be given to the Senate Nominations Committee through the Speaker of the National Assembly in cases where the Committee will be required to nominate a new member to fill the vacancy.
Subsection (3)
 This subsection speaks of only a seat in the Senate being declared vacant (under subsection (1) of the same section). However, in terms of subsection (1), there are several circumstances under which a seat may become vacant without requiring a declaration.
  It will be consistent with the language of subsection (1) if in subsection (3) the words "is declared" are deleted and substituted with the word "becomes".
Paragraph (a), (b) and (c) of subsection (3)
 lay down the procedures to be followed to fill a vacant seat in the Senate. But these procedures are somewhat confused and in some cases simply erroneous. For example, paragraph (a) reads as follows-

"(a) if that member was elected by a District Council, then the Electoral Commission shall notify the Council of that District which elected that member to declare an election within thirty days of the seat becoming vacant;"

This means that it is not the Electoral Commission that will conduct the by-elections but the District Councillors themselves. Yet, the electoral machinery for elections to the Houses of Parliament exists not within any District Council but within the Electoral Commission.
Paragraph (b),
 which deals with filling a vacant Senate seat that was held by a chief, is to the similar effect as paragraph (a), leaving it to the chiefs themselves to organize and conduct the resultant by-election.
Paragraph (c),
 dealing with vacancies in seats of Senators appointed from civil society, requires the Speaker of the Senate to convene the Senate Nominations Committee for purposes of appointing new members. Yet, the Speaker of the Senate may not be a member of the Committee. The responsibility to convene the Committee ought to be assigned to the Speaker of the National Assembly who is a member of the Committee.
  Accordingly, subsection (3) of section 69 will need to be considerably cleaned up to read as follows-

"(3) Where the seat of a member of the Senate becomes vacant by virtue of this section-

if that member was elected by a District Council, then the Electoral Commission shall notify that District Council of the vacancy and shall, within thirty days of the seat becoming vacant, convene a meeting of the District Council for the election of another member;

if that seat was elected by chiefs of a District, then the Electoral Commission shall notify the chiefs of that District and shall, within thirty days of the seat becoming vacant, convene the caucus of chiefs of the District for the election of another member;

if that member is a sector representative, then the Speaker of the National Assembly shall, within thirty days of the seat becoming vacant, convene the Senate Nominations Committee to put forward nominations for appointments to the Senate.".
Section 72
 The language of this section is vague in some respects. The section states

"Desolution 72. The Senate shall continue of the
Senate
 from the date of its first sitting, being no later than thirty days after a Local Government election after any dissolution, until it dissolves sixty days before the next Local Government elections:

Provided that the life of the Senate shall not, in any case, be longer than three years.".
  The words "any dissolution" most probably refer to dissolution of local government authorities. It would be clearer to expressly say so. However, the difficulty is compounded by the fact that neither in the Chapter of the Constitution on Local Government, Chapter XIV, nor anywhere else in the Constitution is there a provision for dissolution of local government authorities.
Section 72
 also speaks of the Senate dissolving sixty days before the next local government election. The date of holding local government elections is not fixed or otherwise prescribed in the Constitution. The Electoral Commission may therefore, by notice of any duration, appoint any date for holding a general election for local government, and such notice could be for one month, two weeks or whatever period. The duration of the notice announcing the date for a local government election will have a bearing on the period of the life of the Senate. In other words, there is no certainty as to the exact length of the life of the Senate, save to the extent that it shall not last for more than three years.