CHAPTER XXII - TRANSITIONAL ISSUES
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Section 203
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Should this section apply only to the High Court or to all courts of law. The section is about retention of judicial power and the section should logically apply to all courts except, obviously, those that have been effectively abolished by the Constitution, namely traditional courts as they existed under the old Constitution. [see section 103 (3)] | |||||||||
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Section 206 (2)
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This section begins with the words-
"For the purposes of subsection 51 (2) and subsection 80 (1), and only for that purpose,....." |
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| The words "and only for that purpose" should read "and only for those purposes" as being the more correct grammar | ||||||||||
| Further, the citations of subsection 51 (2) and 80 (1) should be read as "section 51 (2)" and "section 80 (1)". | ||||||||||
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Section 207
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This section vests all lands and territories of Malawi in the Republic. | |||||||||
| When contrasted with section 208, perhaps the vesting of the lands and territories should have been in the Government and not the Republic. The lands and territories are in any event components of the Republic or the State of Malawi or Malawi itself. | ||||||||||
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Section 210 (2)
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Paragraph (a) of this section makes the National Assembly the only or sole branch of Parliament up to the time the Senate is established. | |||||||||
| As defined in section 49 (1), Parliament consists of the National Assembly, the Senate and the President as Head of State. Paragraph (a) of section 210 (2) needs to be amended to include the President consistent with the definition of Parliament. It could be amended to read as follows- | ||||||||||
| "(2) Until the establishment of the Senate and election and appointment of its members- | ||||||||||
| (a) all legislation shall be enacted by the National Assembly as if this Constitution had not made provision for the Senate and Parliament had consisted exclusively of the National Assembly, acting on its own without being subject to the review of the Senate, and of the President as Head of State.". | ||||||||||
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Section 211 (1)
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This section provides as to how international treaties are to come into force in relation to Malawi under the new Constitution. It contrasts with subsection (2) which addresses the question of treaties entered into before the new Constitution and states that all such treaties are now part of the law of Malawi until either Parliament provides otherwise or the particular treaty lapses by its own operation. | |||||||||
| The intention of subsection (1), on the other hand, would appear to be to require that under the new Constitution treaties shall bind Malawi only if they have been ratified by Parliament by or through an Act. Its wording, however, is somewhat confused. It is suggested that subsection (1) would read more clearly as follows- | ||||||||||
| "Any international agreement entered into after the commencement of this Constitution shall be subject to ratification by an Act of Parliament and shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement.". | ||||||||||
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Section 214
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The section defines the expression "age prescribed for retirement" as used in several parts of the Constitution in relation to the retirement of persons holding public offices. | |||||||||
| The definition, however, is restricted to the age prescribed in an Act of Parliament. Yet, for several categories of public officers, such as judges and magistrates, retirement age has been prescribed in the Constitution itself. The definition should therefore be extended to any retirement age prescribed in the Constitution. Thus, the definition needs to be amended to read as follows- | ||||||||||
| "age prescribed for retirement" is such age as is prescribed in this Constitution or as may be prescribed in an Act of Parliament for the retirement of a person holding public office.". | ||||||||||
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General Observations
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Public Office | |||||||||
| The expression or the term "public office" or its cognate form "public officer" is the one expression which is very widely used in the Constitution and with very inconsistent meanings. The general pattern is to use it in reference to persons holding what are known as established posts in the public service, meaning posts which have been created under a Warrant of Establishment issued by the Treasury under section 12 of the Finance and Audit Act. | ||||||||||
| However, it is also very commonly applied to persons holding what are really political offices or elective offices. For example, in section 40, subsection (3), the Constitution confers on every person the right "to vote, to do so in secret and to stand for election for public office". And the only elective offices provided for in the Constitution are those of the President, Members of Parliament, Members of the Senate and Members of Local Government Authorities. Section 40 (3) clearly suggests that these are public offices and the holders would then earn the description "public officers". And there are a few other sections in the Constitution to the similar effect. | ||||||||||
| There is need to consider introducing an appropriate definition of the term "public office" or "public officer", which has been a source of many a confusion in the interpretation of the Constitution by our courts. | ||||||||||
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Recall of Parliament after Dissolution
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There is need for a provision allowing for recall of Parliament after dissolution in the event of an emergency. The Constitution does not contain such a provision. | |||||||||
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Composition of the Senate and changes in the number of the country's Districts |
The effect of the wording of section 68 of the Constitution, which specifies the composition of the Senate, is a recognition by the Constitution that the country shall have twenty-four Districts, being those which existed at the commencement of the Constitution. This recognition would put any increase or decrease in the number of the country's Districts at variance with section 68 of the Constitution which expressly prescribes a total Senate membership of eighty Senators made up of-
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There may be need to consider a review of section 68 in relation to the prescribing of a total number of members of the Senate linked to the number of the country's Districts as they existed at the commencement of the Constitution. |
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Time for lection of the President and the
National Assembly
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There is need to address the gap between the election of the President and the election of the National Assembly. The term of the Presidency does not necessarily coincide with the term of the National Assembly and there is need certainly for the next general election to reconcile the two sets of provisions. | |||||||||
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Presidential authority between terms
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It is also necessary to consider introducing a new provision that will enable the retiring President to continue in office until the next President is sworn into office. | |||||||||
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Retirement Age for Judges
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Given that in section 111 (3), the age of seventy years has been prescribed as the retirement age for magistrates and other junior judicial officers who ought to aspire for the higher posts of judges, shouldn't the retirement age of judges be raised to either seventy years or higher from the present sixty-five years as prescribed in section 119 (6). The prevailing retirement age for judges within the SADC sub-region is seventy years. | |||||||||
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Restriction on the exercise of the powers
of the DPP and the Attorney General
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The Constitution, in
section 100 (1), restricts the exercise of the DPP's powers to only the
person holding that office and his subordinates in the public service.
A similar provision has been made in section 98 (2) with respect to the
powers of the Attorney General.
In practical terms, there cannot be any guarantee that there shall always be sufficient capacity within the office of the DPP or the Attorney General to conduct criminal prosecution or civil litigation of every description or complexity. There may be cases that may prompt sourcing expert services from outside the public service. In fact this has, on occasions, been done despite the restrictions placed by the Constitution. This has been possible through court rulings that clearly go against the clear wording of the relevant constitutional provisions. The point, however, is that the restrictions introduced in the Constitution will not always be practical and the relevant provisions need to be considered for possible review. |
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Acts of Parliament required to implement
the Constitution
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The Technical Review exercise should also aim to identify those provisions of the Constitution which require the enactment of new legislation for their effective or proper implementation. The task of developing the new laws so identified should be undertaken by the Law Commission. | |||||||||
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