CHAPTER VI
THE LEGISLATURE
Parliament
48. -
  1. All legislative powers of the Republic shall be vested in Parliament which shall have the powers and responsibilities set out in this Constitution.
  2. An Act of Parliament shall have primacy over other forms of law, but shall be subject to the Constitution.
  3. Any question proposed for decision by the National Assembly or by the Senate 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.
Definitions
49. -
  1. For the purposes of this Constitution, unless otherwise provided, "Parliament" consists of the National Assembly, the Senate and the President as Head of State.
  2. Unless otherwise provided in this Constitution, an "Act of Parliament" shall be a Bill which has -
     
  1. been laid before and passed by a majority of the National Assembly;
  2. been laid before and passed by a majority of the Senate; and
  3. been assented to by the President in accordance with this Chapter.
   
  1. "Chamber" means either the Chamber of the National Assembly or of the Senate.
Quorum
50. -
  1. The quorum of each Chamber shall be formed by the presence at the beginning of any sitting of at least two thirds of the members of that Chamber entitled to vote, not including the Speaker or a presiding member.
  2. If it is brought to the attention of the Speaker or person acting as Speaker by any member of the Chamber over which he or she is presiding that there are less than the number of members prescribed by the Standing Orders of that Chamber present and after such interval as may be prescribed in the rules of procedure of the Chamber, the Speaker or person acting as Speaker ascertains that the number of members present is still less than that prescribed by the Standing Orders of the Chamber, he or she shall adjourn the Chamber.
Qualifications of Members of Parliament 
6 of 1995
51. -
  1. 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-
     
    1. the age of twenty-one years, in the case of the National Assembly; and
    2. the age of thirty-five years, in the case of the Senate.
     
  1. is able to speak and to read the English language well enough to take an active part in the proceedings of Parliament; and
  2. has, within the last seven years, been convicted by a competent court of a crime involving dishonesty or moral turpitude;
   
  1. 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 or appointment or where that person resigns from that office in order to stand;
  6. belongs to, and is serving in the Defence Forces of Malawi or the Malawi Police Force; 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.
Oath of allegiance
52. 
Every officer and member of Parliament, before taking his or her seat, or assuming the duties of his or her office shall take and subscribe before the Chief Justice in the Chamber in which he or she shall sit -
     
  1. the oath of allegiance in the form prescribed by law; and
  2. such other oaths for the due performance of their respective offices as may be prescribed by law.
The Speaker
53. -
  1. There shall be a Speaker of the National Assembly and a Speaker of the Senate who shall be elected by majority vote of the Chamber in which he or she sits at the first sitting after any dissolution of that Chamber.
  2. 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 election in the case of the National Assembly or after a local election in the case of the Senate and after any event which results in a vacancy in the office of any Deputy Speaker.
  3. The office of Speaker shall become vacant -
     
  1. on the death or resignation of the Speaker;
  2. if the Speaker ceases to be a member of the Chamber in which he or she sits; 
  3. if the Speaker becomes President, Vice-President, a Minister or a Deputy Minister or a member of the Senate; or
  4. if the Chamber in which the Speaker presides, by a resolution supported by the votes of not less than two-thirds of all the members of that Chamber, resolves that the Speaker be removed from office:
    Provided that the 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. 
  1. The Speaker of each Chamber, or in the absence of the Speaker, such Deputy Speaker of that Chamber as the Speaker has nominated, shall preside at every sitting of that Chamber:
    Provided that in the absence of the Speaker and of every Deputy Speaker, the Chamber may elect one among its members to act a Speaker for that session or that sitting. 
     
  1. Any person who is elected Speaker, or any person acting as Speaker, shall discharge his or her functions and duties and exercise such powers as he or she has by virtue of that office independent of the direction or interference of any body or authority, save as accords with the express will and the Standing Orders of the Chamber in which he or she sits.
  2. Notwithstanding that the Speaker or a person acting as Speaker has been elected as a member of a political party to the Chamber in which he or she sits 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.
  3. The Speaker may, where there is a matter which is the subject of debate in the Chamber over which he or she is presiding and which is a matter solely pertaining 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.
Casting vote
54. -
  1. Subject to subsection 53 (7) the Speaker of a Chamber shall not have a deliberative vote, but if the votes of the Chamber over which that Speaker is presiding are equally divided upon any question, he or she shall exercise the casting vote.
  2. Any member of the National Assembly or Senate, other than the Speaker or Deputy Speaker, shall, when presiding in the Chamber of which he is a member, retain his or her original deliberative vote as a member and shall also have and exercise a casting vote if the votes of that Chamber are equally divided.
The Clerk
55. 
There shall be a Clerk to the National Assembly and a Clerk to the Senate who shall be public officers and shall assist the Speaker of the Chamber to which that Clerk is appointed and perform such other functions and duties as the Speaker may direct.
The right to  regulate procedure 
6 of 1995
56. -
  1. Subject to this Constitution, the National Assembly, the Senate, or may by Standing Order or otherwise regulate its own procedure.
   
  1. Save as otherwise provided in this Constitution, the National Assembly and the Senate may act unless more than two-thirds of all their seats are vacant.
  2. The presence or participation of any person not entitled to be present or to participate in the proceedings of each Chamber shall not invalidate those proceedings. 
  3. Each Chamber 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. 
  4. The proceedings of Parliament shall be conducted in the English language and such other languages as each Chamber may prescribe in respect of its own proceedings.
  5. 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.
  6. 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. 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 of Parliament or by the Standing Orders of Parliament.
Money Bills
57. -
  1. Except upon the recommendation of the Minister responsible for Finance, signified in writing, the National Assembly shall not -
     
  1. 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;
     
  1. 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
  2. receive any petition that, in the opinion of the person presiding, requests that provision be made for any of the purposes.
   
  1. The Senate shall not have the power to debate or vote upon any motion or receive any Bill to which this section applies except with the recommendation of the Minister responsible for Finance, signified in writing, and may not in any case amend or reject such a motion or Bill.
Subsidiary legislation
58. -
  1. 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.
  2. 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.
Sessions and sittings
59. -
  1. Every session of the National Assembly and of the Senate shall be held at such place within Malawi and shall commence at such time as each Speaker, in consultation with the President, may appoint with respect to the Chamber in which that Speaker presides and the sittings of each Chamber after the commencement of that session shall be held at such times and on such days as that Chamber shall appoint:
Provided that -
     
  1. the President, in consultation with the Speaker of the relevant Chamber, may summon, on extraordinary occasions, a meeting of the National Assembly or the Senate; and
  2. the President may, in consultation with the Speaker of the relevant Chamber, prorogue the National Assembly or the Senate.
   
  1. There shall be at least two sittings of the National Assembly and of the Senate every year.
Privileges and immunities
60. -
  1. The Speaker, every Deputy Speaker, every member of the National Assembly and every member of the Senate shall, except in cases of treason, be privileged from arrest while going to, returning from, or while in the precincts of the National Assembly or the Senate, and shall not, in respect of any utterance that forms part of the proceedings in the National Assembly or the Senate, be amenable to any other action or proceedings in any court, tribunal or body other than Parliament.
  2. 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.
  3. The National Assembly and the Senate shall each 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 prudent exercise of the respective functions of each Chamber.
Member's interests
61. -
  1. A member of the Parliament, where he or she has a direct or indirect material interest in a matter being discussed by the Chamber of which he or she is a member, shall -
     
  1. disclose such interest to that Chamber; and
  2. not be entitled to vote on that matter without leave of that Chamber.
   
  1. 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 Chamber of which he or she is a member.
Composition of the National Assembly
62. -
  1. The National Assembly shall consist of such number of seats  representing every constituency in Malawi, as shall be determined by the Electoral Commission.
  2. 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.
Vacancies in the National Assembly 
31 of 1994
63. -
  1. 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, or becomes a member of the Senate;
  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;
  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; or
  7. if a member is subject to recall by his or her constituency in accordance with the provisions of this Constitution or of an Act of Parliament.
   
  1. 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).
   
  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.
Recall of members
64. 
* (Repealed by Act No. 6 of 1995).
Crossing the floor
65. -
  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 and has joined another political party represented in the National Assembly.
  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.
Functions and powers of the National
66. -
  1. The National Assembly shall be a directly elected Chamber the primary purpose of which shall be legislative and which shall Assembly 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. receive, amend, accept or reject any Bills remitted from the Senate;
  4. debate and vote motions in relation to any matter including motions to indict and convict the President or Vice-President by impeachment;
  5. exercise such other functions and powers as are conferred on it by this Constitution; and
  6. take all actions incidental to and necessary for the proper exercise of its functions.
   
  1. 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;
     
  1. a Private Member's Bill shall be -
     
    1. promulgated by a member of Parliament; and 
    2. introduced by that member in the Chamber of which he or she is a member in accordance with the procedure of that Chamber.
Dissolution of the National Assembly 

38 of 1998

67. -
  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:
  2. 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. 
     

  3. 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 two days, before after the polling day, excluding Sundays.
  4. 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 .
  5. 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.
  6. 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 day preceding the general election.
Composition of the Senate
68. -
  1. The Senate shall consist of eighty members as follows -
     
  1. one Senator from each District, registered as a voter in that District and elected by the District Council of that District in secret ballot within thirty days of each local government election
  2. one Senator from each District, being a Chief registered as a voter in that District and elected by a caucus of all the Chiefs of that District in secret ballot within thirty days of each local government election;
  3. thirty-two other Senators who shall be elected by a two-thirds majority of sitting members of the Senate on the basis of nominations by the Nominations Committee provided for in subsection (2) from all of the following sectors -
     
    1. interest groups, who shall include representatives from women's organizations, the disabled and from health, education, farming and business sectors, and from trade unions;
    2. society, who shall be such persons as are generally recognized for their outstanding service to the public or contribution to the social, cultural, or technological development of the nation; and
    3. religion, who shall include representatives of the major religious faiths in Malawi.
   
  1. There shall be a Nominations Committee of the Senate 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, the Ombudsman, and seven members, being Senators elected under subsections (1) (a) or (b), appointed by the National Assembly on a motion by the Speaker of the National Assembly.
  2. A Senator may be elected or nominated for an indefinite number of subsequent terms, unless otherwise disqualified or removed. 
  3. The Nominations Committee shall endeavour to ensure, when considering nominations, that the Senate is proportionally representative of the various groups in Malawian society and therefore shall seek to ensure, so far as it is possible, that one-half of the members of the Senate are women.
Vacancies in the Senate
69. -
  1. The seat of a member of the Senate shall become vacant -
     
  1. if the Senate has been dissolved; 
  2. if a member dies or resigns his or her seat;
  3. if a member ceases to be a citizen of the Republic;
  4. if a member assumes the office of President or Vice-President, Minister or Deputy Minister or becomes a member of the National Assembly;
  5. if any circumstances arise that, if he or she were not a member of the Senate, would cause that member to be disqualified for nomination or election under this Constitution or an Act of Parliament; or
  6. if the Senate declares a member's seat vacant in accordance with such rules and Standing Orders as may permit or provide for the removal of a member for good and sufficient reason provided that they accord with the principles of natural justice.
   
  1. The Speaker of the Senate shall give notice to the Electoral Commission and in the Gazette in the event that the seat of any member of the Senate becomes vacant under this section.
  2. Where the seat of a member of the Senate is declared vacant by virtue of this section -
     
  1. 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; 
  2. if that member was elected by Chiefs, then the Speaker of the Senate shall notify the Chiefs of the District from where that member was elected so as to convene the relevant caucus of Chiefs for the election of another member; 
  3. if that member is a sector representative, then the Speaker of the Senate shall convene the Nominations Committee of the Senate which shall put forward nominations for appointment to the Senate.
Functions and  powers of the Senate
70. 
The Senate shall be an indirectly elected chamber purpose the primary of which shall be deliberative and which shall have power, subject to this Constitution, to -
   
  1. receive, scrutinize and amend Bills from the National Assembly;
  2. vote motions to confirm or remit Bills passed by the National Assembly;
  3. debate any issue on its own motion, initiate Private Member's Bills and vote motions in respect of any matter, including motions to indict or convict the President or Vice-President by impeachment;
  4. exercise such other functions and powers as are conferred on it by this Constitution;
  5. carry out such other functions as may be delegated to it by an Act of Parliament; and 
  6. take all actions incidental to and necessary for the proper exercise of its functions.
Scrutiny by the Senate
71. -
  1. All Bills shall be laid before the Senate.
   
  1. Any member of the Senate may, in respect of a Bill laid before the Senate -
     
  1. within fourteen days of that Bill being laid, raise a motion to debate that Bill in full readings; or
  2. after fourteen days, but before the lapse of forty days, raise a motion to remit the Bill to the National Assembly.
   
  1. Any Bill laid before the Senate which has not been the subject of a motion to debate within the meaning of this section shall after the lapse of forty days, be presented for assent by the President.
  2. Where a Bill is debated under subsection (2) (a), it shall be passed back to the Speaker of the National Assembly who shall certify that it is -
     
  1. without amendment, in which case the Speaker shall present it for assent by the President; or
  2. amended, in which case the Bill shall be laid before the National Assembly for fourteen days, provided that if no motion to debate the Bill in full is raised by any member of the National Assembly within that time it shall be presented in amended form for assent by the President.
   
  1. Where a Bill has been remitted by the Senate by virtue of a majority vote in favour of a motion under subsection (2) (b) -
     
  1. the Senate shall give written reasons for that remittance; and
  2. the Speaker of the National Assembly shall table the Bill which may be further debated and amended, and if passed by a majority of all the members of the National Assembly, may be presented for assent by the President.
   
  1. Where a Private Member's Bill has been initiated and passed by the Senate it shall be sent to the Speaker of the National Assembly who shall table that Bill which may be further debated and amended and, if passed by a majority of the National Assembly, the Bill shall be presented for assent by the President.
Dissolution of the Senate
72. 
The Senate shall continue 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.

Presidential assent 

6 of 1995

73. -
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
The coming into force of laws
74. 
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.