CHIMWEMWE CHIJERE 08 674 044

1
 MANUAL OF
ADMINISTRATIVE LAW
IN MALAWI

A Guide for Ministers and Public

Servants

Printed by the Government Printer, Zomba, Malawi

2
 MANUAL OF
ADMINISTRATIVE LAW
IN MALAWI

A Guide for Ministers and Public

Servants

Printed by the Government Printer, Zomba, Malawi

3
 MANUAL OF ADMINISTRATIVE LAW
IN MALAWI
REVISED

A Guide for Ministers and Public Servants

by

STEVE D. MATENJE
Solicitor General and Secretary for Justice
Ministry of Justice
Malawi

and

CHRISTOPHER F. FORSYTH
Reader in Public Law
Director of the Centre for Public Law
University of Cambridge
United Kingdom

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Revised by Fidelis Edge Kanyongolo on behalf of Casals and Associates (2007)

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 FOREWORD

by His Excellency Dr. Bingu wa Mutharika, President of the Republic of Malawi

In order to facilitate the process of consolidating the rule of law in the civil service,
the Government held a workshop in December, 2000, for senior Government officials
on administrative law and procedures. The objective of the workshop was to enhance
and strengthen the rule of law in public administration by increasing the awareness of
Principal Secretaries and other senior Government officials of principles of
administrative law that are relevant in the decision-making process. Due to its
success, the participants of that workshop recommended that the workshop should be
held annually. They also decided that a Manual in ordinary language be written and
produced to serve as a reference guide for everyday use for Ministers and public
servants on basic principles of administrative law and procedure. It was decided that
the Manual should, at once, give a general overview of administrative law as a whole
and also specific details about its various elements. I commend the Principal
Secretaries for making this decision.

The main purpose of the Manual, therefore, is to serve as a practical tool for Ministers
and public servants alike in ensuring that their decisions are made in accordance with
well settled and universally accepted principles of law. It is hoped that such decisions
will facilitate the restoration of public confidence in the Government and its
institutions and enable the Government serve the citizens of Malawi well.

Given its purpose, the Manual familiarizes Ministers and public servants with various
principles of administrative law and procedures that they need to know to perform
their functions well and avoid making arbitrary decisions. It explains how discretion
which characterizes most administrative decisions may be fairly, reasonably and
lawfully exercised by Government decision-makers. It also defines discretion and
provides an overview of the all important process and procedure by which courts
review the decisions and actions of public authorities which result from the eercise of

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discretion for compliance with the law. The Malawi Public Service, like public
services in most democratic countries elsewhere, has administrative standards of its
own to observe, and it is essential that every Minister and public servant should know
of these standards and their application in the delivery of public services to the people
of Malawi. This Manual puts the application of the Malawi Public Service standards
in its proper perspective.

I have had the opportunity to read this Manual and am impressed with its quality,
content and presentation. While the information is deployed in succinct form, it is
knowledgeable, detailed and accurate, with appropriate citations to relevant sources.
It fills a real need and must find a place of the in the offices of the be used by
Ministers and public servants. We live in a multifaceted world, but non of us can
expect to be specialists in everything. To those public authorities who are not
lawyers, this Manual will ensure that at least they are aware of the full range of basic
principles of administrative law relevant to their work, and that they know hw to use
them. Therefore, it should not be ignored and allowed to gather dust on the
bookshelf. I am pleased to commend it to Cabinet Ministers, public servants and all
those who may be interested to know how decisions are expected to be made in public
institutions. I also congratulate the authors for a job well done.

Signed: Dr. BINGU WA MUTHARIKA

PRESIDENT OF THE REPUBLIC
OF MALAWI

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 PREFACE

As pointed out by His Excellency the President, Dr. Bingu wa Mutharika, in the
Foreword, this Manual has a simple but important purpose. It is to provide guidance
to Government decision-makers in Malawi – public servants and Ministers – on how
they may made decisions in ways that ensure that those decisions are fair, reasonable
and lawful.

Good decision-making is vital to effective and efficient public administration. It

ensures that the fundamental values – such as the rule of law, democracy and the
protection of human rights – enshrined in the Constitution of Malawi, are properly
respected and protected. It also ensures that the lawful policies adopted by the
Government of Malawi are effectively implemented. Moreover, good decisions will
be much less vulnerable to challenge in the courts, before the Ombudsman or before
the Human Rights Commission and this serves the narrower but still important public
interest of ensuring that scarce resources are not frittered away in endless litigation.

Most governmental decisions in Malawi are open to challenge in the courts by use of
the procedure known as the application for judicial review. But one theme that runs
through several parts of the Manual is that of mutual respect between the
administration and the courts. The administration must, out of respect for the
independence and impartiality of the courts, accept and implement the decisions of
the courts, even where those decisions overturned cherished plans or are inconvenient
or even very difficult to implement. The courts, on the other hand, must recognize
that the decisions of Ministers (and public servants accountable to them) have
democratic legitimacy and are entitled to great respect for that reason. Thus the
courts should ensure that decisions are lawfully made – and all the procedures (to be
explained shortly) have been followed and all the errors to be avoided have been
avoided – and strike the decisions down if they are unlawful. But they should not be
used or allow themselves to be used to frustrate perfectly lawful governmental
decisions or policies, even if the judges think that the decision or policy in question is
unwise or mistaken. Such matters are for the ballot box not the courts.

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Individual readers will each find their own way of using the Manual. However, we
recommend both general and specific use of the Manual. Decision-makers should
acquaint themselves generally with the Manual, so that they have the necessary
background understanding of the principles of good decision-making. This will
acquaint the reader with the fundamental constitutional principles underlying the
judicial control of decision-making, with the various grounds of judicial review and
similar matters. But when they come to make a specific decision they should turn to
Section IX “Questions to ask yourself in making decisions” and test your proposed
decision against those questions.

Appropriate use should also be made to the appendices. Appendix One sets out the
Fundamental Rights protected in the Constitution of Malawi and these mark out the
boundaries of lawful decision-making. Appendix Three deals with a most important
area – the discipline and dismissal of civil servants – and should be consulted (and
followed) whenever disciplinary action against a public servant is considered.
Appendix Four gives guidance on how and when to seek advice from the Law
Officers. Appendices Five and Two give guidance when a decision is being
challenged. Appendix Five describes the courts system in Malawi and Appendix Two
describes the technical details of the application for judicial review. Both contain
useful information.

The authors collaborated in writing this manual by meeting several time in Mangochi
and once in London but mostly by sending e-mails backwards and forwards between
Lilongwe and Cambridge. But at all times we enjoyed the task before us and believe
that our work will serve an important public interest in Malawi.

Signed: STEVE D. MATENJE Signed: CHRISTOPHER F. FORSYTH

Lilongwe Cambridge

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ACKNOWLEDGEMENTS

This Manual owes a great deal to the booklet “The Judge Over your Shoulder – A
Guide to Judicial Review for UK Government Administrators” produced by the
Treasury Solicitor. “The Judge Over your Shoulder”, now in its third edition, is
widely acknowledged to have improved the quality of decision-making in the UK
Civil Service. This Manual has been written in the hope that it will achieve similar
results in Malawi. Considerable reliance has been placed upon the “The Judge Over
your Shoulder” in the text that follows although care has been taken to ensure that it is
relevant to Malawi. Crown copyright is reproduced with the permission of the
Controller of Her Majesty’s Stationery Office for which the authors are very grateful.

The authors are also grateful to the then Secretary to the President and Cabinet, Mr
Alfred A. Upindi, for his guidance and support throughout the preparation of the
Manual and to Dorothy Matiya, the Personal Secretary to the Solicitor General and
Secretary for Justice, for helping to type the text of the Manual. The comments on the
draft of this Manual of the participants to the Second Workshop on Administrative
Law and Procedure for Principal Secretaries (Mangochi, December, 2001) are greatly
valued. Its shortcomings are the authors’ own responsibility.

(Distributed under the authority of the Secretary to the President and Cabinet)

© The Government of Malawi, 2002

All rights severed. No part of this publication may be reproduced or transmitted, in any form or by any means,
electrical, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature,
without the written permission of the Malawi Government, application for which shall be made to the Secretary to
the President and Cabinet, Private Bag 301, Lilongwe 3, Malawi; Fax (265) 01 788 456; Tel. (265) 01 789 311.

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 CONTENTS

Foreword
Preface
Acknowledgements
Contents
Table of Decided Court Cases
Table of Ombudsman Inquiries
Table of Statutes
Books and Other Reference Materials
I Introduction
II Sources of Law
The Constitution
Acts of Parliament
The Common Law/Case
Public and Private Law

III The Principles of the Constitution

Constitutional Supremacy
Accountability and Transparency
Human Rights
Rule of law
Separation of Powers

IV Discretion
The Definition of Discretion
Substantive and Procedural Limits of Discretionary Power

V The Distinction Between the Merits of a Decision and its Legality

VI The Grounds of Judicial Review: Procedural Fairness

The Duty of Procedural Fairness

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 The Varying Content of Procedural Protection
The Hearing Rule
The Rule Against Bias
Legitimate Expectations
The Duty to Give Reasons
Delegating the Hearing
Improper Procedure

VII The Grounds of Judicial Review: Failure to Retain Discretion

Improper Delegation
Dictation
Over-rigid Policies
Contracts
Estoppel

VIII The Grounds of Judicial Review: The Abuse of Discretion

Irrelevant Considerations and Improper Purposes
Unreasonableness

IX Alternative Forms of Accountability

The Ombudsman
The Human Rights Commission

X Questions to Ask Yourself in Making Decisions

Appendix One
Chapter Four of the Malawi Constitution
Appendix Two
Judicial Review Procedure and Remedies
The Rules of Standing
The Requirement of Leave
The Substantive Hearing
Remedies
Appendix Three

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 The Procedure for Taking Disciplinary Action Against a Civil Servant
Public Service Commission Regulations
The Preliminary Investigation
Interdiction and Suspension
Charges
The Disciplinary Enquiry
Criminal Proceedings
Absconding Officers
Industrial Class Employees
Appendix Four
The Law Officers and When to Take Legal Advice from them
Appendix Five
The Court System in Malawi
Appendix Six
Public Service Act
Glossary of Terms

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Table of Decided Court Cases

Air Malawi Ltd. v. Ombudsman (2000)

Anton Piller KG v. Manufacturing Process Ltd. (1976)
Associated Provincial Picture Houses v. Wednesbury Corporation (1948)
Attorney General v. Crayford Urban District Council (1962)
Attorney General v. Fulham Corporation (1921)
Attorney General of Hong Kong v. Ng Yuen Shin (1983)
Attorney General v. Lunguzi (In the matter of the removal of Lunguzi as Inspector
General (1994)
Ayr Harbour Trusttes v. Oswald (1883)
Birkdale Electricity Supply Co. v. Southport Corporation (1926)
Breen v. Amalgamated Engineering Union (1971)
Carltona Ltd. v. Commissioners of Works (1943)
Chawani v. Attorney General (2000)
Civil Liberties Committee v. Attorney General (1999)
Congreve v. Home Office (1976)
Dimes v. The Proprietors of the Grand Junction Canal Company (1925)
Dr Bentley’s case (1723)
Great Atlantic Insurance Co. v. Home Insurance Co. (1981)
Gregory v. Fearn (1953)
Lloyd v. Mc Mahon (1987)
Mareva Compania Naviera v. International Bulk Carriers Ltd. (1980)
Nseula v Attorney General (1996)
Ombudsman v. Malawi Broadcasting Corporation (2000)
Pett v. Greyhound Racing Association (1969)
Padfield v. Minister of Agriculture, Fisheries and Food (1968)
Reid v. Secretary of State for Scotland (1999)
Re Wykes (1961)
R.B. Kachere and others v. the President and Speaker of Parliament (MSCA) (1994)
R.. v. Board of Visitors of HM Prisons, the Maze, ex parte Hone (1988)
R. v. Bow Street Metropolitan Stipendiary Magistrates Court, ex parte Pinochet
Ugarte (No. 2) (1999)

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R. v. Ealing LBC ex parte Times Newspapers Ltd. (1986)
R. v. Ealing Magistrates Court ex parte Fanneran (1996)
R. v. Home Secretary ex parte Asif Mahmood Kahn (1984)
R. v. Lancashire CC ex parte Huddleston (1986)
R. v. North and East Devon Health Authority ex parte Coughlan (1999)
R. v. Secretary of State for the Environment ex parte Hammersmith (1991)
R. v. Secretary of State for Home Department ex parte Hosenball (1977)
R. v. Sussex Justices ex parte Mc Carthy (1924)
Registered Trustees of the Public Affairs Committee v Speaker of the National
Assembly (2003)
Ridge v. Baldwin (1964)
Roberts v. Hopwood (1925)
Rooke’s case (1598)
Secretary o State for the Environment v. Tameside MBC (1977)
Shaughnessy v. United Sates (1935)
Sharp v. Wakefield (1891)
Taulo V. Attorney-General and Circle Plumbing Ltd. (1993)
The State v Registrar General ex.p. Civil Liberties Committee (1998)
United Democratic Front v. Attorney General (1994)
Vacher & Sons Ltd. v. London society of Compositors (1913)
Westminster Corporation v. London and North Western Railway Company (1905)

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 Table of Ombudsman Inquiries

C.S.T. Wanda v. Ministry of Agriculture and Irrigation (2000)

Kennedy Chirambo v. Ministry of Lands, Housing, Physical Planning and Surveys
(2000)
Lifred Nyali v. Mangochi Police Station (2002)
P.E. Kadzuwa v. Ministry of Information (2000)

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 Books and other reference materials

Attorney General’s Chambers, Procedure for Obtaining Legal Advice and for
Preparation, Publication and Passing of Proposed Legislation (1980)
Blackstone, Commentaries on the Laws of England (1765)
Office of the Ombudsman, Guide to Good Administrative Practice (2000)
Osborn’s, Concise Law Dictionary, 8th Edition
Vile, M.J.C., Constitutionalism and the Separation of Powers
Wade and Phillips, Constitutional Law, 8th Edition
Wade and Forsyth, Administrative Law, 8th Edition
Whitehead and Kadar, A Foundation in English Law (1992)

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 Table of Statutes

(Principal and Subsidiary Legislation)

Civil Procedure (Suits by or against the Government or Public Officers) Act, Cap.
6:01
Corrupt Practices Act, Cap. 7:04
Courts Act, Cap. 3:01
Criminal Procedure and Evidence Code, Cap. 8:01
Constitution of Malawi, 1994
Customs and Excise Act, Cap. 42:01
General Interpretation Act, Cap 42:01
Immunities and Privileges Act, Cap. 16:01
Legal Education and Legal Practitioners Act, Cap. 3:04
Limitation Act, Cap. 6:02
Local Government Act, 1998
Medical Practitioners and Dentist Act, Cap. 36:01
National Construction Industry Council Act, 1996
Ombudsman Act, 1996
Public Audit Act, 2003
Public Procurement Act, 2003
Public Service Act, 1994
Treaties and Conventions Publications Act, 2000
Malawi Public Service Regulations (MPSR)
Public Service Commission Regulations (PSCR)

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 I

INTRODUCTION
1.1 You are sitting at your desk exercising a power such as granting licences on
behalf of your Minister or Ministry or other public body such as a local
government authority or statutory corporation. Or, it may be, you are the
Minister granting the licences directly. The relevant statutory power is
expressed in the widest possible terms: “The Minister or Principal Secretary
or the Director may grant licences on such conditions as he thinks fit”. With
seemingly unfettered discretionary power like that you might think that there
could be no possible ground for legal challenge in the courts. But you would
be wrong. Your decision refusing to grant the licence could still be challenged
by the applicant.

1.2 The reason for this is that there are a number of laws that, in the interests of
good administration, restrict the ways in which discretion can be exercised.
The most important of such laws is section 43 of the Constitution of Malawi
which provides that:

“Every person shall have the right to:-

(a) lawful and procedurally fair administrative action, which is
justifiable in relation to reasons given where his or her rights,
freedoms and legitimate expectations or interests are affected
or threatened; and
(b) be furnished with reasons in writing for administrative action
where his or her rights, freedoms, legitimate expectations if
those interest are known”.

1.3 Thus, first of all, any administrative action – such as a decision to grant or
revoke a licence – by a Minister or public servant (who are often referred to
collectively as “public authorities” or “decision-makers”) must be
“procedurally fair”. Procedural fairness (often called the rules of natural

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 justice) as well as the protection of legitimate expectations and the duty to
give reasons will be discussed more fully below. For the present, it is enough
to note that it requires that those likely to be affected by a decision should be
given an opportunity to be heard and that decision-makers should appear to be,
impartial and unbiased in making the decision. But a “hearing” does not
always have to be oral; it is often sufficient if those affected have an
opportunity to make their view known in writing. In addition, section 43
spells out that the decision-maker must give reasons in writing for the
decision. The duty to give reasons is an important part of modern
administrative law and we will consider it in more detail below.

1.4 Furthermore every person is also entitled to “lawful … administrative action”

and lawful restrictions of the exercise of administrative powers may come
from other sources. Other provisions of the Constitution must be complied
with otherwise the action in question will be unlawful.

1.5 For instance, discrimination on grounds of “race, colour, sex, language,

religion, political or other opinion, nationality, ethnic or social origin,
disability, property [and] birth or other status” is prohibited in section 20(1) of
the Constitution. Any administrative action that discriminated on any of these
grounds would unlawful. (The human rights protected in Chapter IV of the
Constitution are listed in Appendix One).

1.6 In addition, even where no constitutional question arises, the law assumes that
Parliament, even when enacting widely phrased administrative powers, intends
that those powers should be fairly and reasonably exercised.

1.7 Thus the courts will require decision-makers to observe limits to their powers
even if these are not expressly stated in the statute. Such limits prohibit
decision-makers from exercising their powers irrationally; restraining their
discretion; or abusing their power by taking into account an irrelevant
consideration or acting for an improper purpose or exceeding their power in
some other way. If a decision-maker exceeds the limits of his or her power by
doing any of these things, he or she will have acted illegally and the decision

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 made will be liable to be over-turned in the courts. The various ways in which
a decision-maker may abuse his powers and so act unlawfully will also be
considered below.

1.8 Decision-makers must thus take great care in making their decisions. If they
err in any of the ways set out above not only will they have denied to the
public they serve their rights, but they may also have undermined the rule of
law and, by squandering scarce state resources, frustrated the policy goal of
fiscal management..

1.9 The purpose of this Manual is, therefore, simply to provide guidance on how
decisions may be made by public authorities in such a way that they are fair,
reasonable and lawful; decisions which will be upheld as valid even if they are
challenged in the courts,. It is not intended to prevent public authorities from
being sued for their actions provided that they comply with administrative law.
Thus the Manual will merely give guidance on the way in which the courts
and the public expect public functions to be exercised.

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 II

SOURCES OF LAW
2.1 Before we can turn to the details of how decisions should be made, we must
first of all outline the different sources of law. The Constitution recognizes
four main sources, namely the Constitution itself, Acts of Parliament, the
common law and customary law (section 200 of the Constitution). These
sources are discussed in turn below.

The Constitution

2.2 The Constitution of Malawi is the primary source of law and has the status of
“supreme law” in Malawi (sections 5 and 199 of the Constitution). In
practice, the supremacy of the Constitution means that in the case of any
conflict between a provision of the Constitution, on the one hand, and any Act
of Parliament or principle of common law or customary law, on the other, the
former will prevail. The specific provisions of the Constitution govern
decision-making by public authorities are discussed in Part III of this Manual.

Acts of Parliament

2.3 The other major source of law of particular importance to public authorities is
statute law made by Parliament. Statute law is a body of written law drawn up
by Parliament. The individual laws are called statutes. In Malawi just like in
other countries they are commonly called Acts of Parliament. Subject to the
Constitution, Parliament can make any law it likes. Most powers of
government are expressly granted by Parliament to Ministers, or to public
servants under statutes. But limitations on powers are often implied in the
statutory scheme, and still others may derive from fundamental constitutional
principles. The courts ensure that decision-makers stay within the powers that

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 are granted to them by Parliament expressly or impliedly in the written law. A
common sort of power that is granted to Ministers is the power to make
subordinate or subsidiary legislation which is also referred to as delegated
legislation. Regulations, orders and rules made by a Minister are a good
example of subsidiary legislation. Local government authorities, too, are
given similar powers to make by-laws. Legislation does not come into force
unless it is published in the Gazette.

2.4 Accordingly, legislation constitutes the main source of the powers that are
exercised by public authorities in the performance of their duties. It is
therefore important for a decision-maker to know and understand the
legislation administered by his or her Ministry or Department in order to
ascertain the nature, purpose and extent of the power he or she or his or her
Ministry or Department is required to exercise.

The Common Law

2.5 Another important source of law is “the common law”. This consists of various
unwritten general principles of law that have been used and consistently
followed from time immemorial in England. The English common law applies
in Malawi unless it is inconsistent with the Constitution or written law made by
Parliament. The common law has been developed and interpreted by courts
through the principles of judicial precedent. Judicial precedent was developed
from the ancient doctrine of stare decisis. It means “let the decision stand”.
This means that where a superior court has decided what the law is in particular
circumstances the other courts will follow that judgment in subsequent similar
cases; and it lends certainty, uniformity and consistency to the law. It is,
however, important for the administrator to remember that it is a fundamental
rule for the exercise of discretionary administrative power that each case must
be considered on its own merits and decided as the public interest requires at the
time.

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2.6 Over the years, the principle of stare decisis has become the chief feature of the
common law, and we still speak today of law being “judge-made” or case law.
This means nothing more than the law which has developed out of the principle
of judicial precedent. It is also important to note that precedent are often
referred to by the name of the case which established that precedent. We will
do that, as appropriate, in what follows.

Public and Private Law

2.7 At the national level, the law is generally divided into public and private law.
Public law is concerned mainly with public affairs or matters. It mainly
governs the acts of public bodies and the exercise of public functions.
Constitutional and administrative law (with which we are primarily
concerned), taxation laws and criminal law fall into this category. Private
sector bodies may, however, also be subject to administrative law when they
exercise a public function. Generally, bodies exercise public functions when
they act and have authority to act for the collective benefit of the general
public.

2.8 On the other hand private law (also known as civil law to distinguish it from
criminal law) deals with the rights and obligations of individuals in relation to
each other. It is concerned with the settlement of disputes between them and
includes laws dealing with contracts, marriages, divorce, and torts such as
negligence. Of course, the Government may enter into contracts and be guilty
of negligence. For these purposes of civil liability the Government is treated
as if it were an individual; and it can sue and be sued as such and become
subject to private law.

2.9 For example, if a Government Ministry of Department buys new vehicles, the
contracts with the supplier for the purchase of the vehicles will be governed by
contract law (i.e. private law). But the decision, in the first place, of the
Ministry of Department to buy the vehicles, or the selection of the supplier
involves the exercise of its public functions. The test the courts have adopted
to distinguish the two areas is complex, and involves examining in each case

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 the degree to which public functions are involved in the activity concerned.
Some of these tests are:-
a) Legality (e.g. acting within the scope of any powers and
for a proper purpose)
b) Procedural fairness
c) Unreasonableness

2.10 These and others are discussed in detail below. For now it is necessary to
mention, first that for purposes of civil litigation, suits by or against
Government Ministries and Departments or public officers within the civil
service are commenced in the name of the Attorney General. The legislation
that makes this possible is the Civil Procedure (Suits by or against the
Government or Public Officers) Act. On the other hand, public bodies such as
local government authorities and statutory corporations with legal personality
separate from that of the Government sue and are sued in their own names and
must seek their own legal representation.

2.11 Secondly public law is derived largely from principal (or primary) legislation,
i.e. an Act of Parliament, or subsidiary (or delegated) legislation made by
some specified authority (e.g. a Minister) on behalf of Parliament pursuant to
power delegated to that authority by Parliament. Private law is largely derived
from the common law.

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 III

The Principles of the Constitution

Constitutional Supremacy

3.1 The Constitution provides that any act of the Government or law that is
inconsistent with the provisions of the Constitution is invalid to the extent of
the inconsistency (section 5). The Constitution also binds all executive,
legislative and judicial organs of the State at all levels of Government (Section
4 of the Constitution). This means that the Constitution is supreme and
prevails upon everything and everyone (section 199 of the Constitution). Any
law (or conduct) which is in conflict with the Constitution may therefore be
declared to be unconstitutional by a court of law. Such a declaration will have
the effect of rendering the law invalid. The task of determining whether any
specific legislation (or conduct) is consistent with the Constitution is
assigned to the High Court of Malawi by section 108 of the Constitution.
Section 108 (2) provides that:
“The High Court shall have original jurisdiction to review
any law, and any action or decision of the Government, for
conformity with this Constitution, save as otherwise
provided by this Constitution and shall have such other
jurisdiction and powers as may be conferred on it by this
Constitution or any other law.

3.2 Given that most of the legislation was enacted before 18th May, 1994, before
the Constitution came into force, it is important to watch out for provisions in
the existing legislation that may be inconsistent with the Constitution. An
example is a provision that intends to limit the power of the courts to decide
a particular matter. An example of such a provision is one which states that the

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 decision of the Minister “shall not be subject to appeal” or “shall not be
questioned” or “shall be final”. You may also come across a provision that
authorizes the Minister to cancel a licence “without giving reasons” to the
licensee. Known as “ouster” or “finality” clauses, such provisions attempt to
render the decision of the relevant decision-maker, body or tribunal final and
place it beyond the scope of judicial review.

3.3 Here are two examples of ouster and finality clauses from the Laws of
Malawi.

Example I

“If the Controller in his discretion refuses to issue any

licence or refuses to renew any such licence or cancels any
such licence the applicant or licensee, as the case may be,
may appeal to the Minister against such action by the
Controller and the decision of the Minister shall be final
and shall not be questionable in any court”, (Section 65
(12) of the Customs and Excise Act, Chapter 42:01).

Example 2
Notwithstanding any other law, where any written law
confers the power to issue any licence, permit or
authorization, such licence, permit or authorization may at
any time be cancelled upon the directions of the
responsible Minister, without the assignment of any reason,
if the Minister is satisfied that the holder of the licence has
acted in a manner harmful to the interests of the national
economy or the security of the State”. (Section 62(1) of the
General Interpretation Act, Chapter 1:01).

3.4 By virtue of sections 5 and 199 of the Constitution, ouster and finality
provisions, such as the one in Example 1 above , are now clearly invalid in so
far as they are inconsistent with the Constitution. This is because section

27
 11(4) of the Constitution provides that “Any law that oust or purports to oust
the jurisdiction of the courts to entertain matters pertaining to this Constitution
shall be invalid.” Thus the applicant or licensee under section 65 (12) would
still be entitled to appeal to the Minister and, by virtue of section 11 (4) of the
Constitution, still be able to challenge the Minister’s decision in court if
dissatisfied notwithstanding the fact that section 65 (12) of the Customs and
Excise Act declared the Minister’s decision to be “final and shall not be
questionable in any court”.

3.5 Some Acts of Parliament enacted after 1994, however, do now recognize the
effect of section 11 (4) of the Constitution by expressly providing for the right
of appeal against the decision of a public authority such as a Minister or a
statutory board. For instance:-

Example 1

“Any person aggrieved by a directive contained in a notice

issued under subsection (1) [restricting the dealing with
property connected to suspected corrupt practices] may, at
any time apply to the High Court for an order to reverse or
vary such directive ” (Section 23(5), Corrupt Practices Act,,
1996).

Example 2
(1) Subject to subsection (2), any bidder that claims to have
suffered, or that may suffer, loss or injury due to a breach
of a duty imposed on the procuring entity by this Act or the
Regulations, may seek review in accordance with this Part
(Section 37, Public Procurement Act, 2003)
………………..
(4) Appeals against the decision of the head of procuring
agency shall be made to the concerned Minister or, in the
case of procurement whose value exceeds the threshold

28
 prescribed in the Regulations, to the Director (Section 38,
Public Procurement Act, 2003)
…………………………..
(13) The High Court shall have jurisdiction over actions
pursuant to section 37 and over petitions for judicial review
of decisions made by review bodies, or of the failure of
those bodies to make a decision within the prescribed time-
limit. (Section 38, Public Procurement Act, 2003)

3.6 With respect to any statutory provision that authorizes a public authority to
make a decision without giving reasons, section 43 of the Constitution is
relevant. The section guarantees a right to every person to be given reasons in
writing for administrative actions of the Government that affect or are likely to
affect his or her personal rights, freedoms, legitimate expectations or interests.
Accordingly, every public authority is bound to give reasons for such
administrative action even though a statutory provision may state that the
authority is not bound to do so.

Accountability and Transparency

3.7 Other principles of the Constitution which are relevant to decision-making by

public authorities are accountability and transparency. The Constitution
provides that:
the authority to exercise state power depends on
sustaining the trust of the people of Malawi
through open, accountable and transparent
Government and informed democratic choice.
(Section 12(iii)).

3.8 The principle of accountability requires public authorities to explain, and be

answerable for, the exercise of their powers, not only to the people who are
directly affected by those powers, but also to the general public. Thus, public

29
 authorities do not only have to give reasons for administrative action as
required by section 43(2) of the Constitution (see paras. 6.21 to 6.22 below),
but may also have to account for those decisions to oversight institutions such
as parliamentary committees. The following is an example of a law which
provides for such accountability:

(2) Where under subsection (1) the Director of Public

Prosecutions withholds consent to any prosecution
under this Act, he shall—
(a) …………
(b) in addition to providing reasons to the Director [of
the Anti-Corruption Bureau], inform the Legal Affairs
Committee of Parliament of his decision within thirty
days of the decision (Section 42, Corrupt Practices Act,
1996)

3.9 Related to the constitutional principle of accountability is that of transparency.

This principle requires that, in general, decision-making processes by public
authorities must be open to the public. The law facilitates this mainly by
giving members of the public the right to have access to information held by
public authorities and placing on certain public authorities the duty to
publicise their decisions. The following laws are relevant in both respects:

Subject to any Act of Parliament, every person shall have

the right of access to all information held by the State or
any of its organs at any level of Government in so far as
such information is required for the exercise of his rights.
(Section 37, Constitution of Malawi)

The followingi s an example of a law which obliges a public authority to

proactively publish its decisions:

30
 A procuring entity shall promptly publish notice of all
procurement contract awards when the price of the award
exceeds the level set by regulation, and the notice, which
shall indicate the contract price and the name and address
of the successful bidder, shall be published in the
Gazette.(Section 26, Public Procurement Act, 2003)

3.10 This does not mean that there is an inevitable conflict between government
and the judges. The wise decision-maker sees administrative law as an
instrument for achieving an effective and efficient public administration and
not as an impediment to the performance of public duties. There is an alliance
between administrative law and modern public administration. This alliance
was, again, well observed by the authors of Administrative Law, 8th Edition, at
pages 7 and 8 as follows:-

“It is a mistake to suppose that a developed system of administrative law is

necessarily antagonistic to efficient government. Intensive administration will
be more tolerable to the citizen, and the government’s path will be smoother,
where the law can enforce high standards of legality, reasonableness and
fairness. Nor should it be supposed that the continuous intervention by courts,
which is now so conspicuous, means that the standard of administration is
low. This was well observed by Sir John Donaldson M.R. in R. v. Lancashire
CC exp. Huddleston –
‘… the wider remedy of judicial review… has created a new
relationship between the courts and those who derive their
authority from the public law, one of partnership based on a
common aim, namely the maintenance of highest standards of
public administration. With very few exceptions, all public
authorities conscientiously seek to discharge their duties strictly
in accordance with public law and in general, they succeed.
But it must be recognized that complete success by all
authorities at all times is a quite unattainable goal. Errors will
occur despite the best endeavors. The courts, for their part,

31
 must … respect the fact that it is not for them to intervene in the
administrative field, unless there is a reason to inquire whether
a particular authority has been successful in its endeavors. The
courts must … recognize that, where errors have, or are alleged
to have occurred, it by no means follows that the authority is to
be criticized. In proceedings for judicial review, the applicant
no doubt has an axe to grind. This should not be true of the
authority’.

Provided that the judges observe the proper boundaries of their office, administrative
law and administrative power should be friends and not enemies. The contribution
that the law can and should make is creative rather than destructive.

Human Rights

3.11 Among the underlying principles of the Constitution of Malawi is that which
is stated by the Constitution itself in the following words:
The inherent dignity and worth of each human being
requires that the State and all persons shall recognize and
protect fundamental human rights and afford the fullest
protection to the rights and views of all individuals, groups
and minorities whether or not they are entitled to vote.
In exercising their powers, therefore, public authorities have a constitutional
obligation to ensure that they do not violate the human rights of the people that
are affected by their decisions.

3.12 Chapter 4 of the Constitution provides the primary legal guarantees of human
rights in Malawi. Some of the rights relate directly to administrative decision-
making by public authorities. This is particularly true of the right to
administrative justice which is guaranteed by section 43. The right is discussed
more fully in Part VII of this Manual. Suffice it to note at this stage that the
right requires procedural fairness and regularity in administrative decision-

32
 making. In other words, decision-makers must observe what are also referred
to as the rules of natural justice.

3.13 As governmental powers continually grow more drastic, it is only through

procedural fairness that they are rendered tolerable. The United States
Supreme Court has said –

“Procedural fairness and regularity are of the

indispensable essence of liberty. Severe substantive laws
can be endured if they are fairly and impartially applied”
(per Justice Jackson in Shaughnessy v. United States, 306
US 206 (1935).

3.14 It is only natural that public authorities should be tempted to regard procedural
restrictions as an obstacle to efficiency. In fact, it is true that the rules of
natural justice restrict the freedom of administrative action and that their
observance costs a certain amount of time and money. However, time and
money are likely to be well spent if they reduce friction in the machinery of
government; and it is because they are essential rules for upholding fairness
and so reducing grievances that the rules of natural justice can be said to
promote efficiency rather than impede it. Provided that the courts apply them
reasonably and keep them in touch with the standards which good
administration demands in any case, the rules should be regarded as a
protection not only to citizens but also to public authorities. Moreover, an
administrative decision which is made without bias, and with proper
consideration of the views of those affected by it, will not only be more
acceptable; it will also be of better quality. Accordingly, administrative
justice and efficiency go hand in hand.

3.15 In its broadest sense, natural justice may mean simply ‘the natural sense of
what is right or wrong’ and even in its technical sense it is now often equated
with ‘fairness’. In administrative law natural justice is a well-defined concept,
which comprise two fundamental rules of procedure: (1) that a person may not
be a judge in his own case; and (2) that a person’s defence must always be

33
 fairly heard (i.e. no person may be condemned unheard). These fundamental
rules of natural justice seek to ensure that an individual is given a proper
opportunity to present his side of the case prior to a decision being reached
and that the decision-maker exercises his or her power without actual or
apparent bias. In courts of law and statutory tribunals it can be taken for
granted that these rules must be observed. But so universe are they, so
‘natural’, that they are not confined to judicial power. They apply equally to
administrative power, and sometimes also to powers created by contract. It is
in their application to administrative power that public authorities are likely to
overlook them.

The Rule of Law

3.16 Another principle of the Constitution of Malawi which is of particular interest

to administrators is “the Rule of Law.” The Constitution states one of its
underlying principles in the following words: All institutions and persons shall
observe and uphold the Constitution and the rule of law and no institution or
person shall stand above the law (Section 12(iv). The rule of law also features
in the Constitution as part of the principle of national policy which requires
the state to govern “in accordance with the law of nations and the rule law and
actively support the further development thereof in regional and international
affairs” (Section 13(k).

3.17 The concept of the rule of law has a long history in the common law. One of
the most authoritative definitions of the principle was provided by the English
legal scholar, A.V. Dicey in his book titled Introduction to the Study of the
Law of the Constitution. In the book which was first published in 1885, Two
aspects of that definition have come to be accepted as fundamental tenets of
governance in modern democratic states. The first is that the government and
all its organs must exercise power only according to the law; that
governmental power must not be exercised arbitrarily but must be within the
limits of the law. The second is that every person must be subject to the law;
that no person is above the law.

34
3.18 In adhering to the constitutional obligation to uphold the rule of law, therefore,
administrators must exercise only those decision-making powers that they
granted by the law and they must do so within the express and implied limits
set down by the law. It also means that in making decisions, administrators
must apply the relevant rules of law consistently and must not exempt any
person from the application of such rules regardless of that person’s status or
other attribute.

3.19 CHECKS AND BALANCES:While the three branches operate and function
independently of each other, they are subject to the principle of checks and
balances enshrined in the Constitution. This system is intended to ensure that
none of the three branches exercises more power than is conferred upon it by
the Constitution or the law. The most important aspect of these checks and
balances from the point of view of a decision-maker is judicial review as the
means by which the judiciary can check or determine the legality or
lawfulness of administrative actions or decisions of the executive and public
bodies and provide remedies to individuals adversely affected by them. The
role of administrative law in this equation was well observed by the authors of
Administrative Law (Wade and Forsyth, 8th Edition, at page 5) as follows:-

“The primary purpose of administrative law, therefore, is

to keep the powers of government within their legal bounds,
so as to protect the citizen against their abuse. The
powerful engines of authority must be prevented from
running amok. “Abuse”, it should be made clear, carries
no necessary innuendo of malice or bad faith. Government
departments may misunderstand their legal positions as
easily as may other people, and the law, which they have
no administer, is frequently complex and uncertain. Abuse
is therefore inevitable, and it is all the more necessary that
the law should provide means to check it… the government
must have legal warrant for what it does and that if it acts
unlawfully the citizen has an effective legal remedy”.

35
 Separation of Powers

3.20 As a matter of constitutional history, government seemed to start in

practically all states with one person exercising all power – i.e., making the
laws, executing the laws and judging whether the laws have been broken. But
inevitably there developed a tendency to separate the powers of government so
the legislature, was separated from the executive and the courts were separated
from both. This is what has become to be known as the doctrine of the
separation of powers and it holds that this separation is not just the result of
convenience but is important to prevent abuse of power. There is too great an
opportunity for abuse if, for instance, one person could make the law, execute
that law and then judge whether it has been broken. Thus:

“Wherever the right of making and enforcing the law is

vested in the same man or one and the same body of men,
there can be no public liberty”. (Blackstone,
Commentaries on the Laws of England (1765)).

“When the legislative and executive powers are united in

the same person, or in the same body of magistrates, there
can be no liberty… Again, there is no liberty if the judicial
power be not separated from the legislative and executive.
Were it joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control; for the judge
would then be the legislator. Were if joined to the
executive, however, the judge might behave with violence
and oppression” (De I Espirit des Lois, Book IX, ch. 6, by
Montesquieu, quoted in MJC Vile, Constitutionalism and
the Separation of Powers (1967, 90)).

36
3.21 It will be seen from the above quotation that the separation of powers is not an
optional extra – it must exist in some form or other within a country, if the rule
of law is to be observed, because a structure of government committed to the
rule of the law must itself embody a separation between the key functions
involved in the administration of justice. According to Montesquieu, if this
were not so, “all would be lost if the same man or the same body or principal
men, either or nobles, or of the people, exercised these three powers: that of
making the laws, that of executing public resolutions, and that of judging the
crimes or the disputes of individuals”.

3.22 The Malawi Constitution, like many constitutions across the world, adopts the
separation of powers in establishing a constitutional structure for the
government of the State. Thus the Constitution provides in Section 7 that:-

“The executive shall be responsible for the initiation of

policies and legislation and for the implementation of all
laws which embody the express wishes of the people of
Malawi and which promote the principles of this
Constitution”.

And Section 8 provides that:

“The legislature when enacting laws shall reflect in its
deliberations the interests of all the people of Malawi and
shall further the values explicit or implicit in this
Constitution”.

While Section 9 provides that:

“The judiciary shall have the responsibility of interpreting,
protecting and enforcing this Constitution and all laws in
accordance with this Constitution in an independent and
impartial manner with regard only to legally relevant facts
and the prescriptions of law”.

3.23 So, the Malawi Constitution clearly establishes three separate branches of
government, namely, the executive, legislature (or Parliament) and judiciary

37
 and gives them different functions. In this structure, the President heads the
executive in the capacity as the Head of Government. The Chief Justice and
the Speaker of Parliament head the judiciary and the National Assembly,
respectively. In his capacity as the Head of State, the President and the
National Assembly together from the Parliament of Malawi (section 49 (1) of
the Constitution)..
.
3.24 The High Court of Malawi has underlined the importance of separation of
powers as a means for preventing the abuse of power, especially given the
country’s historical experience of such abuses. In the case of Nseula v
Attorney General, the judge observed that:
“[The framers of the Constitution] wanted a good
measure of separation of powers that would engender a
measure of independence and autonomy of the three
branches of Government……………..
Somehow it was perceived that some excesses of
the period before the Constitution could be attributed to
the lack of clear separation between the branches of
Government………….” (Nseula v Attorney General
Civil Cause No. 63 of 1996).

38
 IV

DISCRETION
The Definition of Discretion
4.1 Most of the things that public authorities are empowered by legislation to do
involve the exercise of discretion. Essetially, discretion means the ability to
freely choose from among several possible courses of actions or decisions. In
the context of administrative decision-making, discretion gives a decision-
maker the freedom to choose from two or more possible decisions. In order
to indicate that a decision-maker has discretion, the law granting the relevant
power will usually use the word “may”. The following are examples of
discretionary power granted by Malawian law:

Example 1
A procuring entity may -
(a) reject all bids at any time prior to the acceptance of a bid, without
incurring thereby any liability to the bidders
(Section 23, Public Procurement Act)
This provision gives the procuring entity the freedom to choose between rejecting
and accepting the bids.

Example 2
For the purpose of fulfilling the functions and duties lawfully
conferred or imposed on the Auditor General, the Auditor General
and every person authorized by him-

(b) may require any person to supply any information or answer

any questions relating to documents, books and accounts, money,
or operations subject to audit and examination by the Auditor
General;
(Section 7(1), Public Audit Act)

39
 This provision gives the Auditor General and any person he or she authorizes
the freedom to choose whether or not to require any person to supply the
information or answer the questions that it refers to. It is this freedom of
decision-makers to choose that administrative law and principles of
administrative justice seek to regulate.

4.2 Although discretion gives decision-makers the freedom to choose, the

principle of the rule of law and the general principles of administrative law
imposes certain limits on the freedom. In other words, the discretion of
administrators is not unfettered. In the words of the judge in the English case
of Sharp v. Wakefield (1891):
“… ‘ discretion’ means when it is said that something is to be
done within the discretion of the authorities that that something
is to be done according to the rules of reason and justice, not
according to private opinion:… according to law and not
humour. It is to be, not arbitrary, vague, and fanciful, but regal
and regular. And it must be exercised within the limit, to which
an honest man competent to the discharge of his office ought to
confine himself.”

4.3 If an administrator makes decisions based on discretionary power, the validity

of that decision may be challenged successfully if the discretion was not
exercised within the limits set by the law. The limits are set by the rules of
natural justice as well as those that require retention of discretion and
prohibition of its abuse. These rules are discussed in detail later in the
Manual. For now, it is sufficient to merely summarize what discretion given
by Parliament under legislation entails in law. First, it must be protected. It
must be exercised by the proper authority only and not by some agent or
delegate. It must be exercised without restraint and as the public interest may
from time to time require. It must not be fettered or hampered by contracts or
other bargains or by self-imposed rules of thumb.

4.4 Secondly, discretion must not be abused. A public authority, for instance, may
act within the apparent limits of his or her statutory powers, but still he or she

40
 may act for the wrong motives or on irrelevant grounds or arbitrarily or
unreasonably. For example, while an Act may say that a public authority may
revoke any television licence, the court will not allow him or her to do so
unreasonably or oppressively. It may say that he or she may make such order
as he or she thinks fit, but he or she will not be allowed to pass beyond the
bounds of reasonableness. If the public authorities’ order is not in line with
the implicit policy of Parliament, it is outside the powers of the Act and ultra
vires. Parliament cannot be supposed to have intended that discretionary
power granted under legislation be open to abuse. It must have assumed that
the designated public authority would act properly and responsibly, with a
view to doing what was best in the public interest and most consistent with the
policy of the statute. It is from on this presumption that the courts justify their
power to impose legal bounds on even the most extensive discretion.

The Substantive and Procedural Limits of Power

The Principle of ultra vires

4.5 Power must be exercised within the limits imposed by the legislation under
and for the purpose for which it is granted. In addition, the Constitution of
Malawi imposes certain limits on the exercise of powers. When a power is
exceeded, any acts done in excess of the power are invalid as being ultra vires
(which means simply beyond the powers). Administrative power is, therefore,
amenable to judicial control or intervention if it is exceeded.

4.6 We are generally concerned in this Manual with decision-makers whose

decisions may be set aside by the courts because of an alleged error in the way
in which the decision is made. For instance, when procedural fairness is not
observed or perhaps the discretion is abused in one of the ways explained
above. Such decisions are said to be invalid because of procedural ultra vires.
However, it is important not to lose sight of the fact that there may also be
substantive limits on the exercise of the powers. In other words, the decision
may be flawed because it breaches a substantive limit on the power and is said
to be substantively ultra vires. This is best explained by an example.

41
 Case Example

In the Attorney-General v Fulham Corporation, the London

Borough Council of Fulham arranged to benefit the housewives
of the borough by installing a municipal laundry with the latest
contrivances worked by corporation officials. Under the Baths
and Wash-houses Acts, 1846 and 1847, the council had power
to establish a wash-house, where people could wash their own
clothes. A ratepayer sought by an injunction to restrain the
corporation from conducting the laundry as a business. It was
held by the court that the statutory power was confined to the
establishment of a wash-house and that it was ultra vires for
the Fulham Corporation to establish something different. Thus
were the women of Fulham deprived of the benefit of an up-to-
date municipal laundry because the Fulham Corporation had
no power to set up such a laundry.

4.7 The limits of a public authority’s power are, however, not always as obvious
as in this example where they were set out expressly; the limits may also be
merely implied because powers of a public authority include not only those
expressly conferred by statute but also those which are reasonably incidental
to those expressly conferred.

Case Example

In Attorney-General v Crayford Urban District Council [1962]

by the Housing Act, 1957, the “general management,
regulation and control’ of council houses were vested in the
local housing authority. At no cost to the general rate fund, the
Crayford Urban District Council arranged with an insurance
company a scheme by which tenants could pay a small weekly
premium, collected by the council together with the rent, for the
insurance of their household goods. The scheme was held by

42
 the court to be within the Council’s statutory power of
management.

4.8 It is for this reason that most Acts of Parliament in Malawi are enacted to
provide for specific matters as well as “matters incidental thereto” or “connected
with”. Almost invariably this is stated in the long title to most Acts of
Parliament. An example is the long title to the Corrupt Practices Act, Chapter
7:04, of the Laws of Malawi which reads as follows:

“An Act to provide for the establishment of an Anti-Corruption

Bureau; to make comprehensive provision for the prevention of
corruption; and to provide for matters connected with or
incidental to the foregoing”.

4.9 Having looked at the tests for legality and the requirements for the way a
decision is made, we now turn, in the next part, to the questions, which you
need to ask yourself in making a decision. We have provided notes to each
question to help you relate the questions to the relevant sections of the
Manual.

43
 V

THE DISTINCTION BETWEEN THE

MERITS OF DECISION AND ITS
LEGALITY

5.1 As we have seen, administrative law is simply the law relating to the control
of government power in general (In this context, “government” includes local
authorities and other public authorities such as regulatory bodies). But, most
importantly, administrative law is mostly concerned with the control of
discretion.

5.2 It is important to understand that a judge will not be able to quash a decision
made by a Minister or public servant simply because the judge does not agree
with it. For example, if the minister or public servant decides that a license
should be granted to X but not to Y, it is not for the courts to grant the license
to Y. It is for the minister or public servant to take the decision and to use his
or her special skill and knowledge to judge where the public interest lies. A
judge is unlikely to possess such skill and knowledge because she or he is not
a public administrator and does not exercise administrative power. And where
the decision to be taken is a controversial one, it is appropriate that it should
be taken by the Minister who forms part of the democratically elected
government answerable to Parliament rather than by an unelected judge.

5.3 What then is a judge to do? A judge exercises judicial power to check the
legality or lawfulness of administrative decisions or actions. His or her only
concern is the legality or lawfulness of the decision. The courts can only
intervene if the decision maker has acted unlawfully, for example, where X is
given the license because he or she has paid a bride or is related to the
Minister or public servant. This called the distinction between the merits of
decision (with which the courts are not concerned but which is the concern of

44
 the decision-maker) and review (which is concerned with the way in which the
decision is reached, which is the concern of the courts).

5.4 This has been clearly recognized by the courts of Malawi. For instance in In
the Matter of the Constitution of the Republic of Malawi and the Removal of
Lunguzi as Inspector General of Police (1994) Justice Mkandawire put this
well when he said:

“Judicial Review is not about an appeal from a decision,

but a review of the manner in which the decision was made.
Judicial review is concerned with reviewing not the merits
of the decision but the decision-making process through
which that decision was reached. It not intended to take
away from those authorities the powers and discretions
properly vested in them by law and to substitute as the
bodies making the decisions. It is intended to see that the
relevant authorities use their powers in the proper
manner… The task before me, therefore, is not to question
the merits of the decision to remove the first plaintiff from
the office of Inspector General of Police. . . the question
which I have to review is whether in removing the first
plaintiff the President followed the right procedures.”

5.5 The same point is stressed in the case of Taulo v. Attorney-General and Circle
Plumbing Ltd. (1993), a case which concerned the validity of the sale of the
Wood Industries Corporation (WICO), then a government owned company, to
a privately owned company, Circle Plumbing Limited. Justice Mbalame
explained the position in the following words:

“It is …pertinent to remember that the remedy of judicial

review is concerned with reviewing not the merits of the
decision of the government in selling the company WICO
but the decision- making process by which the government
arrived at that decision. The purpose of judicial review

45
 proceedings …is to ensure that people like the plaintiffs in
this case (employees of WICO) are given fair treatment by
the authorities to which they have been subjected. Indeed it
is wrong to substitute the opinion of this court for that of
the authority constituted by law to decide the matters in
question…

Therefore, I am only entitled to quash the decision herein if

the government acted without jurisdiction or exceeded its
jurisdiction or failed to comply with the rules of natural
justice or (made some other legal error in reaching its
decision)”

5.6 Sometimes, however, the statutory law will provide that there is an appeal
from the decision of the public servant. Such an appeal may be to a court or
another official or some other special body. In an appeal, as opposed to
judicial review, the merits of a decision can generally be reconsidered. The
difference between an appeal and judicial review has been explained as
follows-

“The system of judicial review is radically different from

the system of appeals. When hearing an appeal the court is
concerned with the merits of a decision. Is it correct?.
When subjecting some administrative act or order to
judicial review the court is concerned with its legality: is it
within the limits of the powers granted?. On an appeal the
question is “right or wrong?” On review the question is
“lawful or unlawful?” Rights of an appeal are always
statutory. Judicial review, on the other hand is the exercise
of the courts inherent power to determine whether action is
lawful or not and to award suitable relief. For this, no
statutory authority is necessary: thiss court is simply

46
 performing its ordinary functions in order to enforce the
law. The basis of judicial review therefore is common law.
This is nonetheless true because nearly all cases in
administrative law are under some act of parliament.
Where the court quashes an order made by a minister
under some act, it typically uses its common law power to
declare that the act did not entitle the minister to do what
he did, and that he was in some way exceeding or abusing
his powers. Judicial review thus is a fundamental
mechanism for keeping public authorities within due
bounds for upholding the rule of law. Instead of
substituting its own decision for that of some other body, as
happens when on appeal, the court on review is concerned
only with the question whether the act or order under
attack should be allowed to stand or not….

Judicial control, therefore, primarily means review, and is

based on a fundamental principle, inherent throughout the
legal system, that powers can be validly exercised only
within their true limits. The doctrines by which those limits
are ascertained and enforced form the very marrow of
administrative law.” (Administrative Law, 18 Edition,
Wade and Forsyth pages 34 to 35.)

5.7 The distinction between review and appeal was vividly made clear by the
comparison of the role of the judge in judicial review proceedings to that of a
referee in a football mach made by Lord Donaldson MR in the English case
R. v. Secretary of State for the Environment, ex parte Hammersmith and
Fulham London Borough Council (1991). Lord Donaldson in his judgment
said:

“In football…..the moves made by the players and the

tactics employed by the teams are matters entirely for

47
 them. The referee is only involved when it appears that
some player has acted in breach of the rules. The referee
may then stop play and take some remedial action, but
tempting though it may be , it is not for him to express any
views on the skill of the players or, how he would have
acted in their position. Still less, following a breach of the
rules does he take over one of the positions of the players.
So too with the judiciary…”

5.8 Judicial Review is, thus, a means by which the courts can supervise how
Ministers, public servants Government Ministries and departments or other
public bodies and authorities exercise their powers or carry out their duties. It
plays an important in the process of good administration, providing a
powerful and effective method of ensuring that the improper exercise of power
can be remedied. Decision-makers should welcome the guidance of the courts
on what is the correct procedure to follow in making their decisions for this
will ensure that their decisions are fairer and taken on a proper basis. But the
courts must (and will) also recognize that the public servants are accountable
through their Minister to the President and Parliament. And it is in these
elected institutions that policy is made and through the public service that it is
implemented.

48
 VI

THE GROUNDS OF JUDICIAL REVIEW:

PROCEDURAL FAIRNESS
The Duty of Procedural Fairness

6.1 Every public authority has a legal duty to ensure that the procedure adopted in
administrative decision-making is fair. Historically, the duty developed as part
of the common law known as the rules of natural justice. As mentioned earlier
in this Manual, these rules required every decision-maker to (a) provide any
person likely to be affected by his or her decision an opportunity to be heard
and (b) ensure that there was no appearance of bias on his or her part. The duty
of procedural fairness is now also based on section 43 of the Constitution
which guarantees every person lawful and procedurally fair administrative
action as a human right.

6.2 Let us start by considering the first component of procedural fairness, namely
that every person likely to be affected by a decision ought to be provided the
opportunity to be heard before the decision is made. The principle that
someone should be heard in their own defence before they are punished or
before some decision adverse to them is made, is of very ancient origin. It was
traced to the Garden of Eden in Dr Bentley’s case in 1723 where Mr Justice
Fortescue said that “even God himself did not pass sentence upon Adam,
before he was called upon to make his defence, Adam, says God, where art
thou. Hast thou not eaten of the tree, whereof I commanded thee that thou
shouldst not eat”. But the principle is also modern and recognised in many
different legal systems and international conventions protecting human rights
and fundamental freedoms including, as we have seen, the Constitution of
Malawi.

49
6.3 There are two major reasons why the duty of procedural fairness is so
important. The first is to allow the person affected to participate in the
decision and so to understand it and be prepared to accept it even if it is in the
end adverse to his or her interests. But, secondly, and more importantly,
procedurally fair decisions will be better decisions. Very often, the person
affected will be in possession of important information that would otherwise
not be before the decision-maker. At the very least the person affected will
better understand the impact of an adverse decision upon them; and will be
able to place that information before the decision-maker.

6.4 It is perhaps inevitable that public authorities should see procedural fairness as
a bit of nuisance. They want to get on with the job. Nonetheless, not only will
their decisions be better but they will also survive scrutiny before the judges if
the procedures adopted are fair. The good decision-maker wants to avoid
arbitrary decisions and to be aware of all the relevant considerations before he
or she makes his or her decision.

6.5 Here are two illustrations of the operation of section 43 of the Constitution:

Where no Hearing Was Given

In Chawani v the Attorney-General (MSCA Civil Appeal No 18

of 2000) Dr B.S. Chawani joined the civil service as an
Education Officer and had a very successful career so that by
1995 he held the position of Senior Principal Secretary. Then,
when he had eight years to serve before he reached the
mandatory retirement age of 55, he received a letter from the
Office of the President and Cabinet stating that he was retired
from the Public Service “in the public interest”. Dr Chawani
was given no hearing or reasons as required by section 43 of
the Constitution: and it was conceded by the Attorney-General
on appeal that the decision which required Dr Chawani to go
on premature retirement was improper and contravened the
Constitution.

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 In its judgement, the Supreme Court of Appeal indicated that,
in such circumstances, the normal course was that the court
would quash the early retirement and restore the civil servant
to office. This would mean that the State would have the choice
of either accepting that restoration or of commencing
proceedings against the employee by a procedure that complied
with the Constitution. However, since Dr Chawani had
delayed in bringing the matter to court the only real issue
before the court was compensation. The State had already paid
Dr Chawani a sum equivalent to eight times his salary (for his
remaining eight years of service) as well as a gratuity and a
pension. But these sums were calculated on the basis of his
existing salary. The Supreme Court of Appeal held that he was
entitled to his annual increments estimated at 20 percent per
annum, that his pension and gratuity should be calculated on
the basis of this enhanced salary and that in addition he should
have been paid leave grants for those eight years.

The lesson to be learned from the case is that it is never in the public interest
that a civil servant should be dismissed using a procedure that does not
comply with section 43 of the Constitution.

Where No Reasons Were Given

In Attorney General v Lunguzi (MSCA Civil Appeal No 23 of

1994). Mr Lunguzi was Inspector General of the Malawi
Police Service and had held this office for four years. In May
1994, however, he was informed verbally by the Government
that he was being removed from that post and instead was
being accredited to Canada as a diplomat. No reasons for this
decision were given. In addition to section 43, section 154 (4)
of the Constitution was relevant. It said that the Inspector
General of Police could be removed “only by reason” of the

51
 office holder “being incompetent in the exercise of his or her
duties”, or where that person’s “capacity to exercise his or her
power impartially is in serious question”, or where that person
is “otherwise incapacitated” or “over the age prescribed for
retirement”. Even though Mr Lunguzi continued in State
employ, the Court held that he should have been given reasons
for his removal from the post of Inspector General. The failure
to do this “violated the provisions of section 43”. Note though
that the duty to give reasons is not onerous. The court said that
it would have been enough for the Government to indicate in
writing which of the grounds specified in section 154 (4) was
being relied upon – of course, though, it would not be enough
to give a reason that was not the true reason.

The Varying Content of Procedural Protection

6.6 These two cases are examples of where there should have been a hearing (or
reason should have been given) but no hearing at all (or reasons at all) were
given. However, the duty of procedural fairness is a duty of varying content.
If, for example, a public servant is facing disciplinary proceedings because
certain misconduct is alleged against him or her, then he or she will be entitled
to procedural protection almost as far reaching as that accorded to a person
facing a criminal charge. Thus he or she will be entitled to legal
representation, to cross-examine the witnesses against him or her, to know the
full case against him or her, and of course an oral hearing, etc. On the other
hand, if the decision is being taken on fundamental grounds of policy – for
example, where an obvious increase in traffic has generated the need for a
new road – the landowners over which the road will run will be affected (and
may be entitled to compensation) but there is no misconduct alleged against
them. They are entitled to be heard and to make their representations (as a
result of which a less disruptive route may be chosen) but they are not entitled
to cross-examine witnesses; and perhaps they will not be entitled to an oral
hearing but simply to put their case in writing.

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6.7 The position is well set out in the following words of Lord Bridge in the
judgment in the English case of Lloyd v McMahon (1987):

“… the so-called rules of natural justice are not engraved on

tablets of stone. To use the phrase which better expresses the
underlying concept, what the requirements of fairness demand
when any body domestic, administrative or judicial, has to
make a decision which will affect the rights of individuals
depends upon the character of the decision-making body, the
kind of decision it has to make and the statutory or other
framework in which it operates…”

6.8 In general, the, a decision-maker should be aware of the need to comply with
section 43 of the Constitution. However, before making a decision, he or she
must still consider what the requirements of procedural fairness are in the
particular case. On the whole, it may be expected that judges will be
understanding of the difficulties faced by public authorities and thus will not
quash decisions for trivial and technical reasons provided that it is clear that
the decision-maker has made a genuine attempt to give those affected a fair
opportunity to make their views known and those views have been properly
taken into account. The rules that follow explain further the varying content
of procedural protection and are given for general guidance but in any difficult
case legal advice should be taken.

The Hearing Rule

6.9 (1) Generally, the right to be heard includes the right to correct or
contradict anything prejudicial to a person’s point of view; and that
means that he or she must be told that case he or she has to answer.
Thus adverse reports (or objections to the decisions ought) in the
possession of one party should be disclosed to the other party. But if
those reports contain information gathered in confidence or if

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 disclosure would be in itself harmful – because, for instance, it would
mean revealing the name of a police informer or revealing other
matters which touch national security – then only the gist of the
allegations made against the person affected need be revealed.

Case Example

In R v Secretary of State for the Home Department, ex parte

Hosenball (1977), a case involving a challenge to the Secretary
of State’s decision to deport Mr Hosenball on the ground that
his continued presence in the United Kingdom was not
conducive to the public good, it was accepted by the English
Court of Appeal that Mr Hosenball knew nothing and had been
told nothing of the nature of the confidential information which
formed the basis of the decision. He had not been given the
opportunity of correcting or contradicting any of the
information, or of testing it by cross-examination. Moreover,
he had not been given sufficient information as to the charges
against him so as to be able to respond to them. Nevertheless,
the judge Lord Denning MR, said that this was “….a case in
which national security is involved, and our history shows that,
when the state itself is endangered, our cherished freedoms
may have to take second place. Even natural justice itself may
suffer a set-back … the rules of natural justice have to be
modified in regard to foreigners here who prove themselves
unwelcome and ought to be deported”.

(2) Generally a “hearing’ is an oral hearing, but, provided the demands of

fairness are substantially met, the opportunity to make written
representations will often suffice. The making of written
representations may be the ideal option where, for example, the
decision-maker is a licensing body dealing with a great many
applications. However, where factual disputes are crucial, an oral
hearing (and cross-examination) will be necessary, notwithstanding

54
 administrative inconvenience and expense. Where there is a dispute
over important facts, then, fairness will generally require that there
should be cross-examination – but this should be limited to the facts in
dispute and not stray into issues of policy. Even where there is an oral
hearing, the strict rules of evidence that would apply in court do not
necessarily apply, although, of course, the obligation remains to give a
fair hearing. Accordingly, a ‘hearing’ may take the form of an oral
hearing or written submissions.

(3) At common law there was no right to legal representation in the

decision-making process even where there had to be an oral hearing.

Case Example

In R v Board of Visitors of HM Prison, the Maze, ex parte Hone

(1988), the appellants alleged that the board’s decisions not to
allow them to be legally represented during disciplinary
proceedings amounted to a breach of natural justice. Lord
Goff said that “I am unable to accept … that any person
charged with a crime (or the equivalent thereof) and liable to
punishment is entitled as a matter of natural justice to legal
representation.

… No Doubt it is true that a man charged with a crime before a

criminal court is entitled to legal representation … No doubt it
is correct that a board of visitors is bound to give effect to the
rules of natural justice. But it does not follow that, simply
because a charge before a disciplinary tribunal such as a
board of visitors relates to facts which in law constitute a
crime, the rules of natural justice require the tribunal to grant
legal representation”.

(4) But there are cases where the seriousness of the matter, where the
complexity of the case, where difficult points of law arise and where

55
 the accused is incapable of presenting his or her own case that fairness
requires that there should be representation. In such circumstances,
there will be a right to legal representation. Thus every person who is
detained in police or prison custody has the right under section 42 of
the Constitution to consult confidentially with a legal practitioner and
“where the interests of justice so require” to be provided with the
services of a legal practitioner by the State.

Case Example

In Pett v Greyhound Racing Association (1969), Mr Pett faced

the prospect of losing his livelihood if allegations of doping
greyhounds were made out against him. The judge, Lord
Denning MR said that: “It is not every man who has the ability
to defend himself on his own. He cannot bring out the point in
his own favour or the weakness in the other side. He may be
tongue-tied or nervous, confused or wanting in intelligence.
He cannot examine or cross-examine witness… (in court) if
justice is to be done, he ought to have the help of someone to
speak for him; and who is better than a lawyer has been
trained for the task? I should have thought, therefore, that
when a man’s reputation or livelihood is at stake, he not only
has the right to speak by his own mouth. He also has a right to
speak by counsel or solicitor.”

(5) The actual procedure to be adopted at a hearing is very variable. We

are concerned with administrative decision-making not judicial
procedure where all matters of procedure are tightly regulated by the
Criminal Procedure and Evidence Code for criminal cases and civil
procedure rules contained in the Courts Act for civil litigation cases.
In administrative decision-making, some mattes of procedure may be
provided for in principal or subsidiary legislation. But many others
will have to be decided by the decision-maker himself or herself. This
will include matters such as notice of the hearing, whether the hearing

56
 can be adjourned, whether the person affected has been informed
sufficiently of the allegations against them, whether they are entitled to
cross-examine witnesses and whether they are entitled to legal
representation. The decision-maker must make all these decisions
reasonably and carefully always bearing in mind the need to ensure
that the procedure is fair and perceived as fair. Often the persons
concerned will be confused, or uneducated or illiterate. It is
particularly important in such cases that the issues at state are fully,
clearly and correctly explained to them and that their view should be
heard and recorded even if this takes longer.

(6) What if a hearing “would make no difference”? Procedural objections

may be raised by individuals in cases where it seems obvious that only
one decision could be reached, but decision-makers should resist the
temptation to refuse procedural protection even to such parties. In the
English case of R v Ealing Magistrates’ Court ex p. Fanneran (1996)
it was said by Lord Justice Staughton that the argument that it would
not have made a difference “is to be treated with great caution. Down
that slippery slope lies the way to dictatorship”.

The Rule Against Bias

6.10 Apart from the right to be a hearing, the other component of procedural
fairness is the rule against bias. What is bias? Essentially, it means an
improper predisposition of a decision-maker to decide in one way or another.
The rule against bias is concerned with the appearance of bias rather than bias
itself. If bias could be proved then, almost invariably, it would have been
shown that an irrelevant consideration had been taken into account. Thus the
application of the rule against bias is concerned with protecting the value that
the judicial and administrative process should be above suspicion.

6.11 The leading case from the common law is R v Sussex Justices, ex parte
McCarthy (1924) where it was said that:

57
 “it is of fundamental importance that justice should ‘not only
be done, but should manifestly and undoubtedly be seen to be
done”.

6.12 Where the decision-maker has a financial interest in the outcome of the
decision, however small, bias is “irrebutably presumed”. That this was the
common law was laid down in the case of Dimes v The Proprietors of the
Grand Junction Canal Co (1852) where decrees made by the Lord Chancellor
relating to the Grand Junction Canal Company were set aside because he
owned shares in the company. The rule against bias is plainly concerned with
the appearance of bias rather than actual bias itself for the House of Lords
(sitting as a court) said:

“No one can suppose that [the Lord Chancellor] could be in

the remotest degree influenced by the interest that he had in
this concern [yet his decrees must be set aside]”.

6.13 But even where the decision-maker has no financial interest but has associated
himself of herself too closely with one of the parties the decision will b set
aside and the recent case of R v Bow Street Metropolitan Stipendiary
Magistrates Court, Ex parte Pinochet Urgarte (No 2)(1999) has now provided
an example of this principle – decision-maker disqualified for non-pecuniary
interest. Lord Hoffmann had no financial interest in the case but he was so
closely linked to one of the parties (Amnesty International) that procedural
fairness demanded that he be disqualified from deciding the case of Pinochet.
The facts of the case are set out in more detail below:.

Pinochet was the former Head of State of Chile. Whilst in the

United Kingdom, his extradition was sought by the government
of Spain which wanted him to stand trial for crimes against
humanity alleged to have been committed whilst he was head of
State. Warrants for his arrest were issued by the magistrates.
The House of Lords was required to consider the extent and

58
 scope of the immunity of a former Head of State from arrest
and extradition proceedings. Before the appeal was heard, a
committee of three Law Lords granted Amnesty International
(AI) and several other interested parties permission to
intervene in the appeal. AI therefore made written submissions
and were represented by a lawyer. The House of Lords decided
by a majority of 3:2 that Pinochet was entitled to immunity.
Subsequently it transpired that one of the Law Lords, namely
Lord Hoffmann, one of the three Law Lords in the majority,
was a director and chairperson of Amnesty International Ltd.,
the charitable arm of AI. Pinochet’s lawyers therefore
appealed. It was held by the court that where the decision of a
judge would lead to the promotion of a cause with which he
was involved together with one of the parties, he would be
automatically excluded from hearing the matter even though he
had no pecuniary interest in the outcome of the case. On the
facts of the present case, Lord Hoffmann was automatically
disqualified from hearing the appeal.

6.14 In explaining why the House of Lords took this decision to disqualify a fellow
judge, one of the judges in the case, Lord Hope, said:

“It is no answer for the judge (who was disqualified) to say

that he is in fact impartial and that he will abide by his judicial
oath. The purpose of the disqualification is to preserve the
administration of justice form any suspicion of (a departure
from) impartiality”.

6.15 Even where there is no financial interest and no close association with one of
the parties, the rule against bias may still operate to disqualify a decision-
maker if the decision was tainted by a “real likelihood” of bias. This same test
is applied to justices, jurors, other members of inferior tribunals and
arbitrators. It must be pointed out that in neither the Grand Junction Canal
case nor the Pinochet case was it alleged that either judge was in fact biased.

59
 However the nature of their relationships with a canal company on the one
hand and AI on the other were sufficient to disqualify them.

6.16 The rule against bias does not prevent the adoption of lawful policies by a
decision-maker and that decision-maker having a predisposition to decide in
accordance with those policies. Furthermore, the parties to a decision may
waive any right to object to a decision on the ground of bias.

Legitimate Expectations

6.17 Procedural fairness also covers legitimate expectations. Legitimate

expectations are specifically protected by section 43 of the Constitution, but
what is a legitimate expectation? The legitimate expectations doctrine holds
that where a decision-maker leads a person affected by a decision legitimately
to expect either that a particular procedure will be followed in reaching a
decision or that a particular (and generally favourable) decision will be made
(and such a decision would be within his powers), then, save where there is an
overriding public interest, the legitimate expectation must be protected. The
trust that the individual has placed in the decision-maker should not be
betrayed: and if it is betrayed the decision will be quashed in judicial review
proceedings. For instance, in the case of Attorney General of Hong Kong v
Ng Yuen Shiu (1983) an illegal immigrant legitimately expected, because of
government promise, that he would be interviewed before deportation; the
deportation order made without the promised interview was, therefore,
quashed by the court.

6.18 Broadly, expectations are divided into two groups, procedural expectations –
where procedural justice of one form or another is expected – and substantive
expectations – where a favourable decision of one kind or another is expected.
The English case of R v Home Secretary ex parte Asif Mahmood Kahn (1984)
provides a good example of a substantive expectation. In this case, a Home
Office circular was sent to Mr Kahn specifying criteria applicable to a decision

60
 whether to admit a child to UK for adoption; different criteria were applied
and the child was refused admission; that refusal was quashed by the court.

6.19 Where procedural expectations are concerned, the obvious way to protect
them is to ensure that the promised procedure is followed. But with
substantive expectations the position is less straight forward. Of course, they
may be procedurally protected.

6.20 Although substantive protection has been recognised several times in the
decided cases, the problem is that in effect it amounts to fettering the exercise
of discretion – something which as was mentioned earlier in the Manual is
contrary to the very essence of freedom to decide which is embodied in the
concept of discretion. Moreover, decision-makers must not, by the substantive
protection of expectations, be prevented from changing their policies.
Nevertheless, case law from the Commonwealth has upheld the principle of
substantive protection and required decision-makers to fulfill the expectation.
Consider, for example, the following English case :

In R v North and East Devon Health Authority ex parte

Coughlan (1999) the English Court of Appeal held that an
assurance given to patients that they could live as long as they
chose to at a purpose-built public health facility (to which they
were to be moved) created a legitimate expectation of a
substantive benefit whose frustration would be so unfair as to
amount to an abuse of power. In reaching such a conclusion,
Lord Woolf MR considered the nature of the court’s role when
a member of the public seeks to rely on a legitimate expectation
as against a public authority. The judge said that where the
court considers that a lawful promise or practice has induced a
legitimate expectation of a benefit which is substantive, not
simply procedural, authority now establishes that here too the
court will in a proper case decide whether to frustrate the
expectation is so unfair that to take a new and different course
will amount to an abuse of power.

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 The Duty to Give Reasons

6.21 At the common law there was no duty on the decision-maker to give reasons.
However, as we have seen there is in Malawi a specific human right to
reasons in section 43 of the Constitution. There can thus be no dispute that
public authorities exercising powers affecting the rights, freedoms or
legitimate expectations or interests of people are obliged to give reasons. The
more difficult question will be when that duty is discharged. How full do the
reasons need to be? Judges will not use the duty to give reasons to impose
onerous restrictions upon public authorities. But the duty to give reasons will
not be discharged by the use of vague general words. Reasons which are not
intelligible and do not address the substantial points that have been raised in
the decision-making process will also be inadequate.

6.22 The duty to give reasons is imposed in order to enable those affected by a
decision to judge whether there has been some flaw in the decision justifying
an application for judicial review or an appeal. Unless the citizen can discover
the reasoning behind a decision, he or she may be unable to tell whether it is
reviewable or not, and so may be deprived of the protection of the law. But
from the point of view of the decision-maker compliance with the duty will
ensure and demonstrate that he or she has addressed all the points in issue on a
proper basis and so will have made a better decision. The decision-maker as
much as the person affected by the decision should welcome this.

Delegating the Hearing

6.23 Where the statute places the decision-making power in one person’s hands,
then generally that person must make the decision and conduct any hearing
that may be necessary. Often though this may pose practical difficulties,
where there are many decisions to be made. However, a decision-maker will
often be able to delegate to another (e.g. a sub-committee) the finding of facts,
hearing of objectors and the like. But he or she must retain the final decision-

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 making power in his or her own hands after having received a full and proper
report from the sub-committee.

Improper Procedure

6.24 Where the rule of procedural fairness or specific legislation requires that a
particular procedure be followed in exercising a discretion failure to observe
the procedure may result in the purported exercise of the power being declared
a nullity.

Case example

In Ridge v Baldwin (1964), the Brighton Watch Committee had

dismissed their Chief Constable following his trial at the
Central Criminal court on charges of conspiracy to obstruct he
course of justice. He was acquitted of the charge but his
acquittal had been accompanied by serious criticism of his
conduct by the trial judge. Disciplinary regulations made
under the Police Act 1919 laid down a procedure by which a
formal inquiry had to be held into charges brought against a
chief constable before he could be dismissed. The Watch
Committee contended that this procedure did not apply to the
power of dismissal, which they were exercising under the
Municipal Corporation Act 1882. The House of Lords (sitting
as a court) held that the disciplinary regulations did apply in
this case and “in as much as the decision was arrived at in
complete disregard of the regulations it must be regarded as
void and of no effect” per Lord Morris.

6.25 This does not, however, mean that every minor procedural error will invalidate
the decision as substantial compliance with the procedure will generally be
considered sufficient.

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 VII

THE GROUNDS OF JUDICIAL REVIEW:

FAILURE TO RETAIN DISCRETION

7.1 When Parliament through legislation gives a discretion to a particular person,

a Minister or a public servant, the general presumption is that Parliament
intends that that person should exercise that power. It is that person who must
weigh the various factors that are relevant and form his of her own view of
where the public interest lies and decide accordingly.

7.2 One of the most common errors that can be made in making a decision is
therefore to fail to keep the discretion in the hands of the person to whom it
was granted. This error can be made in the following ways:

(a) improper delegation of the power to another person;

(b) dictation by another person
(c) adoption of an over-rigid policy;
(d) entering into a contract that prevents the free exercise of the discretion;
(e) acting so as to create an “estoppel”.

Each of these may now be considered in a little more detail.

Improper Delegation

7.3 There is a general presumption of law that power granted to one person does
not include the power to delegate it to another person. Since most central
government powers are vested in Ministers this appears to mean that ministers
would need to exercise most powers personally. However, as all public
servants will know, efficient administration would be impossible if the law did

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 require ministers to personally exercise discretionary powers granted to them
and not delegate them; in fact it does not.

7.4 Fortunately, it is widely recognised in most legal systems that the ‘functions
which are given to ministers are so multifarious that no minister could ever
personally attend to them … The duties imposed upon ministers and the
powers granted to them by ministers are normally exercised under the
authority of the ministers by responsible officials of the department. Public
business could not be carried on if that were not the case.” This is known as
the “Carltona principle” because it was first recognised in the English case of
Carltona Ltd v Commissioners of Works (1943). In English common law, this
has come to be the basis on which public servants exercise their Minister’s
powers. In fact, this is not considered true delegation because the public
official acts not as a delegate but as “the alter ego” of the minister, meaning
that the public official acts like the minister himself or herself.

7.5 In Malawi, however, wide-reaching formal powers of delegation are expressly

provided for by the law. The General Interpretation Act (Cap. 1:01) provides
in sections 35 (Powers of the President) and 36 (Powers of Ministers and other
high officials) that, unless expressly prohibited by written law, any power or
duty granted to the President, Minister or the Attorney-General, a Permanent
Secretary, the Director of Public Prosecutions or the [Inspector General] of
Police may be exercised by another person designated either by name or by
the office which they hold. However, that person must, of course be deputed
to exercise the power or duty by the President, Minister or other high official
and may only exercise that power or duty subject to any conditions, exceptions
or qualifications that may be set by the high official who delegates the power
in the first place. Minister’s powers to make subsidiary legislation may not be
delegated under section 36. Any power of the President to make subsidiary
legislation may however, be delegated. And in all cases the person who made
the delegation can always exercise the power themselves or cancel or vary any
delegation.

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 Dictation

7.6 As noted in the discussion of delegation, a decision-maker who is granted a

discretion is expected to personally weigh the various factors that are relevant
and form his of her own view of where the public interest lies and decide
accordingly. This will not be the case where he is she makes the decision on
the basis of dictation by another person. It is an abdication of discretion for
any decision-maker to make a decision according to the orders of another
person rather than a free exercise of his or her own judgment of where the
public interest lies.

7.7 The important point is that you must be careful not to delegate your powers to
another person or body and simply rubber stamp decisions taken elsewhere. If
you have been given the power, you must exercise it in accordance with the
general principles of administrative law discussed in this Manual and not the
directives or dictation of others.

Over-Rigid Policies

7.8 The freedom to decide individual cases in a flexible way is central to the
notion of discretionary power. If it were entirely clear what should be done, a
rule could be adopted rather than granting a discretion. On the other hand,
where a public authority has to decide many cases and many of them are
similar it is not only convenient but it also secures consistency and the treating
of like cases alike if a policy is adopted indicating how cases of that nature are
to be decided. This raises an apparent tension between the freedom that is
implied by discretion and the requirement of consistency by policy.

7.9 The law addresses the apparent tension between discretion and policy through
the general principle which provides that decision-makers can have policies
and they can apply policies – this serves efficiency and consistency – but they
must ensure that the policies are not over-rigid. A policy becomes over-rigid
when it prevents the decision-maker from responding to the merits of the case.

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 In other words, a policy must permit the decision-maker to depart from its
demand for consistency and to use his or her discretionary power to make
exceptions in cases which he or she judges to be appropriate. In practice, it is
always advisable to tell an applicant or the person to be affected by your
decision what your policy is, and say that you will decide the case in the way
indicated by the policy unless in hearing what he has to say it becomes clear
that there is something exceptional about the case that would justify a
departure form the policy. Such a policy is not over-rigid and does not
amount to an unlawful abdication of discretion.

Contracts

7.10 If a decision-maker enters into a contract that prevents him from exercising his
discretion in the future in the most appropriate way, he will have fettered his
discretion and acted unlawfully. On the other hand, public authorities must
enter into contracts in order to discharge their duties. The crucial question is
whether there is some incompatibility between the contract entered into and
statutory purposes for which they have been given the powers. In the leading
English case of Ayr Harbour Trustees v Oswald (1883), the trustees had a
power to acquire land for the public good; but they entered into a contract
which prohibited them from acquiring certain lands. The effect of the
contract was to fetter their discretionary power to freely assess the public
good in the future. On the other hand, an electricity supply company was held
in the Birkdale electricity Supply Co. v Southport Corporation (1926) to have
contractual power to agree prices and the like; it could not fulfill its statutory
functions without entering into such contracts – even if such contracts
restricted the prices it could charge in the future. Such contracts were said in
this case to be part of the company’s “statutory birthright”.

Estoppel

7.11 Where an official makes a representation to an individual – e.g., that the

licence required to carry on a particular business will be granted - and the

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 individual relies on that, for instance, by spending money or acquiring
property, it may be thought that the official should not be able to go back on
that representation; that the official should be “estopped” from going back on
what he has said. However, subject to certain exceptions, this is not the case.
Officials are not estopped from going back on their representations. The
reasons for this is that were this not the case, the designated decision-making
body would be deprived of its discretion to decide whether in the particular
circumstances it was in the public interest to go back on the representation or
not.

7.12 However, officials should not think though that they can freely say whatever
they wish and there will be no legal consequences. As we have seen earlier in
some circumstances a representation may amount to a legitimate expectation
which will be protected by the courts. In such circumstances, the legitimate
expectation may amount to an exception to the estoppel rule.

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 VIII

THE GROUNDS OF JUDICIAL REVIEW:

ABUSE OF DISCRETION

8.1 Public authorities must not, of course, abuse their powers. But what is meant
by abuse of power? Over the years, the common law has come to define abuse
of discretionary power in the context of administrative decision-making as the
making of a decision based on: irrelevant considerations (or failure to take into
account relevant considerations); an improper purpose; unreasonableness and
bad faith.

Irrelevant Considerations and Improper Purposes

8.2 As has been noted earlier in the Manual, discretionary power does not give
decision-makers unlimited freedom to decide as they please. The
constitutional principle of the rule of law and general principles of
administrative law requires that discretion be exercised within the limits of
the law. Perhaps the most basic of the limits is that which requires discretion
to be exercised in accordance with the intention of Parliament as expressed in
the law which grants the discretion.

8.3 The intention of Parliament is expressed in the first instance in the policy of
the Act in question., The exercise of power should therefore first promote the
policy of the Act of Parliament under which the power was granted. As Lord
Reid said in the English case of Padfield v Minister of Agriculture, Fisheries
and Food (1968):

“Parliament must have conferred the discretion with the

intention that it should be used to promote the policy and
objects of the Act; the policy and objects of the act must be

69
 determined by construing the Act as a whole and construction
is always a matter of law for the court. In matters of this kind
it is not possible to draw a hard and fast line, but if the
Minister, by reason of having misconstrued the act or for some
other reason, so uses his discretion as to thwart or run counter
to the policy and the objects of the Act, then our law would be
very defective if persons aggrieved were not entitled to the
protection of the court”.

8.4 What had happened there was that under the Act in question the Minister had
power to appoint a committee of investigation to investigate certain kinds of
complaint “if the Minister in any case so directs”. However, a group of milk
producers (who were in the minority on the Milk Marketing Board – which set
the price of milk) thought that they were being paid too little for their milk
because of failure to consider their additional costs of transport. But they
could not persuade the Board to increase the price. The Minister refused to
appoint a committee to investigate their complaint, he said they had to be
content with “the normal democratic machinery” (i.e. their permanent
minority on the Milk Marketing Board). But the House of Lords (sitting as a
court) said that the Minister had been given his power so that he could
intervene by ordering a committee of inquiry where the Milk Marketing Board
could not or would not provide a remedy. So to refuse to appoint a committee
of inquiry would in some circumstances, such as these, frustrate the policy of
the Act and be an abuse of power.

8.5 The limits of discretion are set not only by the policy of the Act but also more
particular requirements that apply to the discretionary powers which it grants.
These requirements consist of the specific considerations which the decision-
maker is permitted to take into account in making decisions, and the purposes
for which the discretion may be exercised. With regard to the former, it was
observed in the English case of Breen v Amalgamated Engineering Union
(1971) that:

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 “The discretion of a statutory body is never unfettered. It is a
discretion which is to be exercised according to law. That
means at least this: this statutory body must be guided by
relevant considerations ……... If its decision is influenced by
extraneous considerations, which it ought not to have taken
into account, then the decision cannot stand. No matter that
the statutory body may have acted in good faith; nevertheless
the decision will be set aside”.

8.6 Very often discussion of irrelevant considerations overlaps with that of

improper purposes because a decision-maker who takes into account an
irrelevant consideration may do so because he acts for an improper purpose.
On the other hand, a person for a proper purpose, may err in good faith as to
what the relevant considerations are. Thus here emerging naturally from the
discussion of the absence of an unfettered discretion are the two ways in
which discretions may be abused: through taking into account an irrelevant
consideration (or failing to take into account a relevant consideration) and
through acting for an improper purpose.

8.7 Sometimes the statute will expressly say what are relevant considerations. For
instance, section 21(1) and (2) of the Public Audit Act (2003) requires the
Public Accounts Committee of Parliament to take evidence in public, but
empowers the Committee to exercise discretion and take evidence in private
“where the Committee is of the opinion that the evidence relates to a matter of
a confidential or secret nature.” Thus, in the exercise of its discretionary
power, the Committee is authorized by the Act to take into account only one
factor: whether the evidence relates to a matter of a confidential nature. For the
Committee to take into account other considerations is an abuse of discretion
and any decision based on those irrelevant considerations will be unlawful.

8.8 Often though the relevant considerations will not be so clearly set out and
careful judgments will have to be made by the decision-maker as to what is
irrelevant and what is not. But if the decision-maker has acted reasonably in
not taking into account a certain consideration the courts will not generally

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 intervene. What this mean is that powers vested in public authorities must be
exercised in accordance with the intention of Parliament as may be inferred
from the Act which grants them.

8.9 The law is similar with respect to improper purposes. Often it will be clear for
instance from the long title of an Act of Parliament why it was enacted and
that will make plain what the purposes are for which the powers granted must
be exercised. For example, in the case of the Corrupt Practices Act (Cap.
7:04), the long title states that it is “An Act to provide for the establishment of
an Anti-Corruption Bureau; to make comprehensive provision for the
prevention of corruption; and to provide for matters connected with or
incidental to the foregoing.” But where an Act does not state its purpose
clearly, decision-makers will have to determine it themselves based on
reasonable consideration of the circumstances. Here is an example of a case
in which discretionary power was held to have been abused because it was
exercised for an improper purpose.

Case Example

In R v Ealing LBC ex parte Times Newspapers Ltd (1986) a

local authority refused to provide certain newspapers in their
public libraries because the local authority was politically
hostile to the newspapers owners (who had dismissed workers
when they went on strike). The ulterior political objective (of
supporting the strikers) was irrelevant to their statutory duty to
provide “a comprehensive and efficient library service” and
their decision was quashed by the court.

8.10 Where the decision-maker acts for a mixture of motives some good and some
bad, then the good motive must be the predominant one otherwise the decision
will be unlawful and quashed.

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8.11 Statutes often use language which suggests that the decision-maker is to be the
sole judge of what considerations are relevant and what purpose is proper. The
following are examples of the use of such subjective language:

Example 1

If the Registrar is satisfied that the qualification and the

particulars or documents submitted under subsection (1) are in
accordance with the requirements of this Part, he shall, upon
payment by the applicant of the appropriate prescribed fee,
register the applicant in the appropriate register (section 29 (3)
of the Medical Practitioners and Dentists Act Chapter 36:01).

Example 2

On hearing an appeal under subsection (1) the Minister may:

(a) …………………..
(b) if he is of the opinion that he Council has not acted in
accordance with this Act, make an order that he name of the
appellant be entered or retained on the register…. (section 26
(2) of the National Construction Industry Council Act, 1996).

8.12 Such language has often been used in an attempt to ensure that the decision
was unchallengeable in the courts: once the minister made an affidavit saying
he was satisfied that was the end of the matter. But it is now clear that even
when such words are used, the decision maker must act reasonably, for proper
purposes and on proper grounds. This is what Lord Wilberforce said in the
English case of Secretary of State for the Environment v Tameside MBC:

“The question is framed in “subjective” form – if the Secretary

of State is “satisfied”. This form of section is well known and
may at first sight be thought to exclude judicial review.
Sections of this form may, no doubt, exclude judicial review on

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 what is or has become a matter of pure judgement. But I do
not think that they go further than that. If the judgement
requires, before it can be made, the existence of some facts,
then although the evaluation of those facts is for the Secretary
of State alone, the court must inquire into whether those facts
exist and have been taken into account, whether the judgment
has been made on a proper self-direction as to those facts,
whether the judgment has not been made upon other facts
which ought not to have been taken into account”.

8.13 It may sometimes be difficult to identify what is a matter of “pure judgment”

on which “no objective test is possible”. Such a matter is said to be “non-
justiciable.”

Unreasonableness

8.14 Decision-makers must always act reasonably. Rooke’s Case (1598) which
was decided more than 400 years ago in England (and yet has lost nothing of
its accuracy) is a good place to begin. In levying charges for the repair of a
river bank (which they had power to do), the Commissioners of Sewers had
cast the entire charge upon one adjacent owner instead of spreading the charge
amongst all the owners who had benefited. In delivering his judgment in the
case, Sir Edward Coke said:

“… and notwithstanding the words of the commission give

authority to the commissioners to do according to their
discretions, yet their proceedings ought to be limited and bound
with the role of reason and law. For discretion is a science or
understanding to discern between falsity and truth, between
wrong and right, between shadows and substance, between
equity and colourable glosses and pretences, and not to do
according to their wills and private affections….”

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8.15 And the English case of Roberts v Hopwood (1925) is to similar effect. The
Poplar Borough Council had power to pay such wages “as they think fit”. But
it was held “contrary to law” to pay more than what was reasonable in the
light of general wage rates. Lord Wrenbury said:

“A person in whom is vested a discretion must exercise his

discretion upon reasonable grounds. A discretion does not
empower a man to do what he likes merely because he is
minded to do so – he must, in the exercise of his discretion, do
not what he likes but what he ought to do. In other words, he
must, by the use of his reason, ascertain and follow the course
which reason directs. He must act reasonably”.

8.16 It is important to understand that this requirement that the decision-maker

should act reasonably does not mean that judges will intervene or be able to
intervene simply because they disagree with the decision made by the
decision-maker. We have already discussed this above. Thus, there will
always be a range of reasonable decisions that can be made in any case and it
is not for the court to intervene simply because the judge might not have made
the same decision as the public administrator.

8.17 All this is borne out by the rather confusing but important English case of
Associated Provincial Picture Houses v Wednesbury Corporation (1948).
This case concerned a complaint by the owners of a cinema that it was
unreasonable for the local authority to grant licences for Sunday performances
subject to the condition that no children under 15 would be admitted. Lord
Greene laid down the law in a way that has been profoundly influential:

“On the face of it, a condition of the kind imposed is perfectly

lawful……………….. it must always be remembered that the
court is not a court of appeal (but) when discretion of this kind
is granted the law recognises certain principles upon which the
discretion must be exercised, but within the four corners of
these principles the discretion …, is an absolute one and

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 cannot be questioned in any court of law. What then are those
principles? …………………………………

It is true that the discretion must be exercised reasonably. Now

what does this mean? Lawyers familiar with the phraseology
commonly used in relation to the exercise of statutory
discretions often use the word ‘unreasonable’ in a rather
comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that must
not be done. For instance, a person entrusted with a discretion
must, so to speak, direct himself properly in law. He must
exclude from his consideration matters which are irrelevant to
what he has to consider. If he does not obey those rules, he
may truly be said and often is said, to be acting ‘unreasonably’.
Similarly, there may be something so absurd that no sensible
person could ever dream that it lay within the powers of the
authority. (For instance, if a) red-haired teacher was
dismissed because she had red hair. That is unreasonable in
one sense. In another sense it is taking into consideration
extraneous matters. It is so unreasonable that it might almost
be described as being done in bad faith; and, in fact, all these
things run into one another”.

8.18 There are two important points to understand about this: first, that much of
what is meant by reasonableness overlaps with the law relating to irrelevant
considerations, improper purposes and the like which we have considered
above. It is unreasonable to take into account irrelevant considerations or to
act for an improper purpose. But there is also a category of cases in which the
decision is “so absurd that no sensible person would ever dream that it lay
within the powers of the “decision-maker”.

8.19 This category of absurd decisions or decisions “so outrageous in their defiance
of logic or accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it” (per Lord

76
Diplock in a later case), is often called the Wednesbury irrational decisions.
When judges do quash decisions on this basis they are in fact intervening
simply because the merits of the decision are so bad. They are intruding into
the merits of the decision – and for this reason this form of review is also
sometimes called “substantive review” because the judge decides on the
substance (or merits) or the case. But it should be noted that they only do so
in exceptional circumstances; and almost always when they intervene because
of the alleged Wednesbury irrationality of the decision, there is some other
flaw in the decision. Admittedly, when judges review an administrative
decisions on the grounds that is is unreasonable in the sense that it is absurd,
they may appear to be straying beyond the boundaries of judicial review and
assuming the role of an appeal tribunal. For this reason, judges will use the
ground of unreasonableness (meaning absurdity) only in exceptional
circumstances.

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 IX

ALTERNATIVE FORMS OF

ACCOUNTABILITY

9.1 Judicial review is not the only way in which public servants may be held to
account for their exercise of governmental power. The Constitution
establishes several other ways in which civil servants may be held to account.
The most prominent of these is through the office of the Ombudsman (sections
120 – 128) and the Human Rights Commission (sections 129 – 131).

The Ombudsman

9.2 The office of the Ombudsman is established by the Constitution and has
powers defined by the Constitution and the Ombudsman Act, 1996. This
institution (which originated in Sweden almost 200 years ago) consists of a
completely independent officer who has power to investigate “any and all
cases” where it is alleged a person suffered injustice and it appears that there is
no judicial remedy for that injustice “reasonably available”. It is clear from
the Ombudsman Act, 1996, section 5, that there are five kinds of
maladministration which require investigation by the Ombudsman. These are
instances of abuse of power, unfair treatment, manifest injustice, oppressive
conduct or unfair conduct by an official in the employ of any organ of
Government.

9.3 The Ombudsman’s powers to investigate are very wide (section 124 of the
Constitution.). He may subpoena witness, and question any person connected
to the investigation. He or she may require the immediate disclosure of any
information or document from a public body. The Ombudsman, or his

78
 officers, after obtaining a warrant from a magistrate, is also entitled access to
any premises (other than a private home) where he or she may question any
person. He or she may also inspect and copy any documents or reports (other
than private correspondence) (section 6 (1) (b) of the 1996 Act).

9.4 He or she also has wide powers to take remedial action including the power to
“direct that appropriate administrative action be taken to redress the
grievance” (section 126 (a) of the Constitution). These powers are quasi-
judicial in nature. But the Ombudsman is not a judicial officer and his or her
decisions are subject to judicial review. However, the Supreme Court of
Appeal has made it clear in The Ombudsman v. Malawi Broadcasting
Corporation (MSCA Civil Appeal NO. 47 of 2000; 6th February, 2002) that it
will not interfere with any decision of the Ombusman, unless it was “palpably
obvious” that the Ombudsman had made a wrong determination. Any such
interference would “frustrate the efficient and speedy working of the
Ombudsman scheme.”

9.5 Interestingly, although the Constitution says that the Ombudsman may
investigate “any and all cases” of injustice (section 123 (1)), the High Court
has, on at least one occasion held that these words must not be taken literally.
In the case of The Ombudsman v. Malawi Broadcasting Corporation, the
court made it plain that the Ombudsman only has power to investigate
governmental activities and not those of non– governmental organizations,
churches and private companies and the like. The reason for this is that the
Ombudsman has no coercive powers to enforce his or her directives other than
to report his or her findings to the National Assembly; and only public bodies
accountable to the National Assembly can thus be expected to heed the
Ombudsman’s directives. Other important matters that the Ombudsman
cannot investigate are: matters which fall within the remit of the National
Compensation Tribunal (liability of the Government of Malawi for acts
committed before the coming into force of the Constitution) and

79
 commencement or conduct of civil or criminal proceedings in any court of
law.

9.6 A wide view has been taken by the Ombudsman of the phrase “reasonably
available”, so the Ombudsman often investigates matters in which there would
be a judicial remedy but through the absence of legal aid, or indigence, or
some other similar reason, it is not reasonable to expect the person affected to
go to the law. In Air Malawi Ltd. v. The Ombudsman (MSCA Civil Appeal
No. 1 of 2000) the Malawi Supreme Court of Appeal held that where there
was no legal remedy in a labour dispute because of the “possibility” that so
much time had passed, it was appropriate for the Ombudsman to investigate.
But the court made it clear that the Office of the Ombudsman was not
designed to “operate in parallel to the courts”, The court said:-

“It is our view that the Ombudsman should not take on

matters which other tribunals can perform merely because
they have been brought to him. The Ombudsman should
avoid taking the attitude of saying: ‘I can do anything that
[the courts] can do’” (per Chief Justice R.A. Banda).

9.7 It is impossible to specify all the ways in which a public authority may be
found to have been guilty of maladministration by the Ombudsman. However,
the Ombudsman’s Annual Reports offer guidance to his findings in the past
year. In addition, the Ombudsman has published a booklet “Guide to Good
Administrative Practice (2002)” which sets out the principles by which he or
she operates. This contains accounts of many cases dealt with by the
Ombudsman arranged under the headings; abuse of power, unfair treatment,
manifest injustice, oppressive conduct or unfair conduct.

9.8 Here, however, are a few examples of some common instances of

maladministration.

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 Delay in making a decision or taking action

9.9 The importance of avoiding delay in making decisions should not be

underestimated. The complainant will have been subjected to unnecessary
frustration and stress; small grievances will have grown into large ones and the
reputation and stature of the public service will have fallen.

Case examples

In C.S.T Wanda v. Ministry of Agriculture and Irrigation (Inquiry No.

5/2000), the complainant was declared redundant in September 1995
but was not paid his terminal benefits until June 2000. This was found
to be maladministration through delay and the Ombudsman laid down
that a reasonable period to effect such payments was 3 to 6 months.

In Lifred Nyali v. Mangochi Police Station (Inquiry No. 54/2000), the

complainant had been arrested in April 1995 on an allegation of theft
but up to June 2000 the public prosecutor had failed to complete the
investigation. The prosecution were found guilty of maladministration
“for failing without proper reasons to conclude the case within a
reasonable period of three months”.

Failing to give a Minister Proper Advice

9.10 Another important form of maladministration recognized by the Ombudsman

is that of failing to advise the Minister properly. Decisions taken by Ministers
must be taken on proper advice. Public servants must provide that advice and
where they fail to provide proper advice they are guilty of maladministration.

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 Case example

In P.E. Kadzamira v. Ministry of Information (Inquiry No. 94/2000),

the complainant had been appointed Chairman of the Malawi
Communications Regulatory Authority Board for a period that would
expire in May 2003 as laid down in the Communications Act. The
Board was dissolved contrary to the Act. It was alleged that the
complainant’s lawyer wrote to the Ministry responsible requesting it
to advise the Minister that the dissolution was illegal but the Minister
was not so advised. The Ombudsman found that “the Ministry was
guilty of maladministration for not advising the President that the
Board could not be dissolved before the expiry of 4 years”.

Ministers are not, of course, bound to take the advice of the public servants although
they will do well to do so. If having been properly advised, a Minister takes the
wrong decision that is his or her responsibility. However, it is maladministration for
public servant to fail to give proper advice to the Minister without valid reasons.

Failing to Maintain Proper Records

9.11 A further species of maladministration is that of failing to maintain proper

records.

Case example

In Kennedy Charambo v. Ministry of Housing, Lands and Physical

Planning and Surveys (Inquiry No. 103/2000, the complainant was
granted written permission to purchase a certain house under the
Public Service Home Ownership Scheme, but although the
complainant paid valuation fees on the house the records on this were
lost and the house was sold to another person. The Ombudsman found
that the failure to keep records was maladministration.

Abuse of power and Oppressive conduct

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9.11.1 The importance of acting responsibly, rationally and on proper and relevant
considerations is borne out by the following example.

In Beatrice Kadzamira v. Malawi Polytechnic and Ministry of

Education (Inquiry No. 61/2002), the complainant, a lecturer at the
Malawi Polytechnic, was dismissed allegedly by the Minister of
Education on the instructions of another minister whose wife was also
a lecturer at the same institution. The alleged reason for the dismissal
was that the other minister’s wife was not “comfortable” to work
together with the complainant. These allegations were not challenged
by the Ministry during the inquiry. Instead, the Ministry opted to settle
the matter amicably. The Ombudsman found that the decision to
dismiss the complainant was an abuse of power, irrational and
oppressive.

The Human Rights Commission

9.12 The Human Rights Commission is established by the Constitution (Section

129), The powers of the Commission are defined by both the Constitution
(Section 130) and the Human Rights Commission Act, 1998 (sections 12 and
13) . The Commission is given the task by the Constitution and the Act of the
“investigation of violations of the rights accorded by [the] Constitution or any
other law” and the competence “in every respect to protect and promote
human rights in the broadest sense possible” (Sections 130 and 12
respectively) . And in order to do this the Commission has been given powers
of investigation by the Act, which it may exercise either when an individual or
class of persons make an application to it or petitions within its competence
are brought before it by individuals or groups of individuals (Section 12 ).

9.13 The Act Human Rights Commission Act gives the Commission a number of
responsibilities, including that of studying and examining the status and effect
of any legislation, judicial decision and administrative provision and proposal
in relation to human rights (Section 14(b)) . The Commission has no judicial
or legislative powers (section 130 of the Constitution). However, in terms of

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 section 22 of the Act, upon hearing complaints brought before it or based upon
any investigations it has carried out or at any stage, the Commission:-

(a) shall seek an amicable settlement through conciliation and, where

appropriate, on the basis of confidentiality;
(b) shall inform the complainant and the respondent of their respective
rights, remedies or obligations and the Commission shall promote a
party’s access to the remedies;
(c) may render assistance or advice as the party that brought the complaint
or petition may reasonably require;
(d) may transmit a complaint, petition or any other matter to any other
competent authority as prescribed by the law or as otherwise the
Commission thinks fit;
(e) may make recommendations to the competent authority, proposing
amendments or reforms of the law, regulations or administrative
provisions or practices if the Commission has identified such laws,
regulations or administrative provisions to have created the difficulties
or hardships encountered by the persons who brought the complaints or
petitions; and
(f) may recommend to the relevant authority the prosecution of any
persons found to have violated human rights or the taking of any other
action and any such authority shall consider the recommendation and
take such action as it deems appropriate.

9.14 A public authority may thus find that the Commission may investigate a
decision that he or she has made, and if it finds some flaw in that decision it
may criticize it and remedy it in terms of section 22 of the Act and/or
comment publicly on the violation in terms of section 14(d) of the Act. It is
important to bear in mind that it is an offence punishable by a fine of K20,000
and imprisonment for five years for a public authority to interfere with, hinder
or obstruct the Commission or any of its members of employees authorized to
act on behalf of the Commission in the exercise of the powers provided for in
the Act. Accordingly, the Act requires all organs of the Government to accord

84
 the Commission such assistance and cooperation as the Commission may
require to perform its functions and duties under the Act.

9.15 The Commission consists of the Law Commissioner and the Ombudsman and
other persons, appointed by the President, but nominated by organizations that
are concerned with the promotion of constitutional rights and freedoms.
Although, it is required to keep the President fully informed on matters
concerning the general conduct of its affairs (Section 13(2) of the Act), the
Commission is a national institution independent of the authority or direction
of any other body or person (Sections 11 and 32 (1) of the Act).

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 X

QUESTIONS TO ASK YOURSELF IN

MAKING DECISIONS

1 Do I have the powers to do what I want to do? Am I acting within the

power granted by the law?

Notes

To act lawfully, you or your Ministry or Department must have the power to
do what you intend or it intends. If you do not, your actions will be called
ultra vires and will be of no effect. You should, therefore, know the source of
your power. The power will usually be found in: primary legislation (an Act
of Parliament) or subsidiary legislation (for example, rules, regulations or
orders made under an act of Parliament). (see paras. 2.4 to 2.10; 4.5 to 4.9).

2. Am I merely adopting a particular statutory interpretation, which

happens to suit what I want to do?

Notes

We have seen that the source of administrative power is usually principal or

subsidiary legislation. You will need to look at its words to work out what
you or your Ministry or Department can and cannot do. Usually, words in a
statute are given their plain English meaning. Where different interpretations
of the words are possible and your interpretation has been challenged in court,
the court will apply formal ‘rules of construction’ to try to determine what the
intention of the legislation was. Either way, you will need to consider the
general purpose of the statute. (see paras. 2.3 to 2.4; 3.1 to 3.6; 4.5 to 4.8;
7.3 to 7.5).

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3. Am I exercising the power for the purpose for which it was given?

Notes

As well as having the power to act, you or your Ministry or Department must
use the power for a lawful purpose. Your action will be ultra vires and an
abuse of power if you use the power to achieve a purpose that the power was
not created to achieve (see paras. 4.6 to 4.8; 8.9 to 8.11).

4. Am I acting for the right reasons? Have I taken into account all relevant
information and excluded irrelevant considerations?

Notes

Allied to the need to act for a proper purpose is the requirement that for the
decision to be lawful you must not have:

exercised your discretion on the basis of irrelevant factors; or

failed to take into account factors that you are under a duty to consider.

Doing either will usually lead to a decision being held invalid. Generally,
anything not identified by the power-giving legislation or relevant to the
particular circumstances in which a power is exercised will be irrelevant. It
will be enough to show that an irrelevant factor influenced the decision for it
to be held invalid. Whatever factors guide you, you also need to be sure that
the facts on which you base your decision are accurate (see paras. 8.5 to 8.8).

5. Do I have sufficient and correct reasons for my decision or action?

Notes

It is absolutely important to always bear in mind section 43 of the Constitution

before you make a decision and to be ready to provide reasons for the

87
 decision. Failure to do so may lead to it being held invalid by a court (see
paras. 1.2; 6.1 to 6.5; 6.21).

Recording reasons helps encourage careful decision-making. A record can

show that you addressed your mind to the relevant issues and followed the
principles of good administration. The fact that you are bound by section 43
to give reasons means that, for practical purposes at least, reasons must always
be recorded. Further, the absence of recorded reasons may lead to a
presumption that a decision was ‘irrational’.

There is no uniform standard for the quality of recorded reasons, but they must
be at least intelligible and address the substance of the issues involved. The
following factors will be important:

• any reason given for the decision must be lawful, that is within the
scope of the relevant power or duty;
• any material findings of fact should be set out;
• it should be clear that all relevant matters have been considered and
that no irrelevant ones have been taken into account;
• any representations or consultation responses should be noted as
having been properly considered, addressed and taken into account.

6. Will I hear and consider the point of view of people likely to be affected
by the decision? Have they been put in the picture sufficiently so that
they have a fair opportunity to make representations?

Notes

It is important to determine the type of ‘hearing’ you will accord the person
affected by your decision particularly if it is adverse to their interests or
expectations. Sometimes written representations may amount to a fair and
adequate ‘hearing’. At other times, an oral hearing may be a must. Either
way, you should provide the affected person with as much information as

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 possible relevant to the matter in respect of which you are required to make a
decision. This may include policy considerations and statutory provisions
relevant to the matter in question. The advantage is that the person you are
dealing with will be able to decide to pursue the matter or abandon it
altogether before time and money are wasted. At the same time you should
also carefully determine whether the issues are such that the person affected
may require legal representation. (see paras. 1.3; 3.13 to 3.15; 6.2 to 6.9;
6.23).

7. Have I allowed in my timetable sufficient time for consultation and

representations?

Notes

Where consultation is required by statute, or by the common law or is

undertaken anyway, it has to be conducted properly to satisfy the requirement
for procedural fairness. To be proper, four criteria must be satisfied:

• the consultation must be undertaken when proposals for a change of

policy, for example, are still at a formative stage;
• sufficient explanation for each policy option or proposal must be
given, so that those consulted can intelligently consider and respond to
them;
• adequate time needs to be given for the consultation process;
• the responses of the people consulted must be conscientiously taken
into account when the ultimate decision is taken.

The essence of consultation is the communication of a genuine consideration

of that advice. To achieve consultation, sufficient information must be given
to the consulted party to enable it to tender helpful advice, and enough time
allowed to the consulted party to do that.

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8. Have I made up my mind in advance or given that impression, or have I
merely blindly followed departmental policy without considering the
circumstances of the particular case? If I have followed a general policy
in a particular case have I made it clear when communicating my decision
that I have carefully considered the individual application to see whether
it deserved to be treated as an exceptional case?

Notes

Procedural fairness demands that decision-makers do not ‘fetter’ their

discretion. Their minds must be seen to remain open. A Minister or public
servant is entitled to have a pre-determined policy on how a discretion will
usually be exercised. But if a policy becomes so rigid that it prevents a
decision-maker from responding to the merits of each case, their discretion
will have been ‘fettered’. In effect, the policy has closed the decision-maker’s
mind to the possibility that a case might prove to be exceptional or that the
policy itself should be changed (see paras. 7.8 to 7.12).

Particular care thus needs to be taken when drafting official press statements
or advice to the public, for example, to ensure the impression of a fetter or a
closed mind is not mistakenly introduced.

9. Have I or anyone involved in making the decision, any conflicting interest

which might lead someone to suppose that there is bias?

Notes

The rule against bias is concerned to ensure that the decision-making process
is not a ‘sham’ because the decision-maker’s mind was always closed to the
representations of particular parties. It does not just deal with actual bias, but
the appearance of bias as well. The phrase, ‘justice must not only be done,
but …, be seen to be done,’ is often used to encapsulate this idea. The
strictness of the rule serves to strengthen public confidence in the legitimacy
of the decision-making process. Thus English common law already

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 recognises that decision-makers should not take part in deciding appeals
against their own decisions unless that is authorised by statute.

Actual bias occurs but is rare. Most cases are concerned with the appearance
of bias. The test here is whether, in all the circumstances of a case, the court
considers that there appeared to be a ‘real likelihood of bias’. If it does, the
decision will be set aside even if actual bias did not occur. So as well as being
sure that you lack actual bias before making a decision, you should not act as
the decision-maker if there is a real likelihood that your impartiality might be
doubted (see paras. 6.10 to 6.16). If you do act as the decision-maker in such
circumstances, your impartiality may be challenged in court and your decision
will be quashed and set aside for having been unlawfully made.

10. Are there any grounds for thinking I might not be acting fairly?

Notes

See the notes to question 9.

11. Have I led anyone to suppose that I will be acting differently from what is
now intended?

Notes

A ‘legitimate expectation’, giving rise to the need for fairness, will occur
where a decision-maker makes an express or implied (e.g. from past practice)
promise or representation that a person or class of persons will:

• receive a particular benefit or continue to receive a particular or not

substantially varied benefit; and
• be entitled to a hearing before any decision is taken which may affect
their rights or interests.

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 It should, however, be noted that where a legitimate expectation has arisen, a
public authority can still break its promise if an overriding public interest
requires it (see paras. 6.17 to 6.20).

12. Have I wrongly delegated the decision-making?

Notes

The general rule of administrative law is that where legislation confers a

power on a specified individual or body it must be exercised by that individual
or body and not ‘delegated’ to another. But the courts accept that Ministers
cannot personally make every decision which is made in their name. As we
have already seen in this Manual, this is known in common law as the
‘Carltona principle’. Its rationale is that, legally and constitutionally, the acts
of officials are the acts of their Ministers. However, in Malawi specific
statutory provisions will often govern this matter as explained above. Where
the statutory provisions do not cover the situation before you, then the
Carltona principle shall apply. If the power can be delegated you need to
check if there are limitations on the seniority or functions of officials who can
exercise it. You must be careful to avoid delegating decision-making to an
outside body and merely rubber-stamping their decisions. Likewise, do not
allow another Ministry or Department to take a decision for you unless the
relevant legislation expressly permits this. The Ombudsman inquiry in
Beatrice Kadzamira v Malawi Polytechnic and Ministry of Education is a
good example of this. (see paras. 6.23; 7.3 to 7.5).

13 Am I acting in a way which a court may regard as abusing my power or

generally so unreasonable that it is likely to find against me or my
Ministry or Department?

Notes

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 As well as acting within the limits of statutory authority and using a fair
process to come to a decision, decision-makers must not exercise their powers
and duties in an ‘unreasonable’ way. The threshold for ‘unreasonableness’ is
a high one. The courts can only interfere with the exercise of an
administrative discretion on substantive grounds when the decision is beyond
the range of responses open to a reasonable decision-maker. In ‘human
rights’ cases the courts are likely to make a more demanding enquiry of how
reasonable a decision-maker’s response was (see paras. 8.3 to 8.5; 8.14 to
8.19).

14 Have I followed the procedure, if any, provided for by the law which I am
required to follow before making the decision?

Notes

Legislation can impose express restrictions or requirements that must be

satisfied before a power can be exercised. For example, ‘The Minister shall’:

• consult the Board

• make due enquiry; or
• consider any objections before making a decision.

These are called ‘mandatory’ requirements because a failure to carry them out
will make a decision invalid. The decision-maker will need to have fulfilled
them in spirit as well as literally. A statutory requirement will always be
presumed to be mandatory. Occasionally, if the requirement is very trivial or
breach of the procedure does not affect the objects and purpose of a statute or
damage the public, this presumption is rebutted, and a requirement for the
exercise of a statutory power will be described as merely ‘directory’, that is to
say, a failure to satisfy it will not necessarily invalidate the decision (see
paras. 6.24 to 6.25).

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If you have serious doubts on any of these or other questions you should take legal
advice from the Attorney General before committing your Ministry or your
Department to a particular decision (see Appendix Four). The advice of the Attorney
General is required even if your Ministry has an in-house lawyer since the in-house
lawyer is not the principal legal advisor to the Government or an officer subordinate
to the Attorney General unless he acts on the instructions of the Attorney General (see
section 98 (1) and (2) of the Constitution). In general, statutory corporations
including local government authorities must seek advice from their legal practitioners.

Finally, it is important to bear in mind that this Manual cannot prevent a person
affected by your decision from challenging it in court even where all the guidelines
have been followed. But where the administrative law decisions discussed in this
Manual have been taken into account in making a decision, chances are that the
judicial review court will uphold your decision.

94
 Appendix One

CHAPTER FOUR OF THE MALAWI

CONSTITUTION

Chapter IV of the Malawi Constitution constitutes the Bill of Rights of Malawi and
sets out and guarantees the fundamental human rights and freedoms of all the people
in Malawi. The whole chapter is reproduced below for ease of reference. The
numbering of each human right or freedom corresponds to the section numbering as it
is in the Constitution.

CHAPTER IV
HUMAN RIGHTS
Protection of human rights and freedoms
15.--(1) The human rights and freedoms enshrined in this Chapter shall be respected
and upheld by the executive, legislature and judiciary and all organs of the
Government and its agencies and, where applicable to them, by all natural and legal
persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.
(2) Any person or group of persons with sufficient interest in the protection and
enforcement of rights under this Chapter shall be entitled to the assistance of the
courts, the Ombudsman, the Human Rights Commission and other organs of
Government to ensure the promotion, protection and redress of grievance in respect of
those rights.

The right to life

16. Every person has the right to life and no person shall be arbitrarily deprived of his
or her life:
Provided that the execution of the death sentence imposed by a competent court on a
person in respect of a criminal offence under the laws of Malawi of which he or she
has been convicted shall not be regarded as arbitrary deprivation of his or her right to
life.

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Genocide
17. Acts of genocide are prohibited and shall be prevented and punished.

Liberty
18. Every person has the right to personal liberty.

Human dignity and personal freedoms

19.--(1) The dignity of all persons shall be inviolable.
(2) In any judicial proceedings or in any other proceedings before any organ of the
State, and during the enforcement of a penalty, respect for human dignity shall be
guaranteed.
(3) No person shall be subject to torture of any kind or to cruel, inhuman or degrading
treatment or punishment.
(4) No person shall be subject to corporal punishment in connection with any judicial
proceedings or in any other proceedings before any organ of the State.
(5) No person shall be subjected to medical or scientific experimentation without his
or her consent.
(6) Subject to this Constitution, every person shall have the right to freedom and
security of person, which shall include the right not to be--
(a) detained without trial;
(b) detained solely by reason of his or her political or other opinions; or
(c) imprisoned for inability to fulfill contractual obligations.

Equality
20.--(1) Discrimination of persons in any form is prohibited and all persons are, under
any law, guaranteed equal and effective protection against discrimination on grounds
of race, colour, sex, language, religion, political or other opinion, nationality, ethnic
or social origin, disability, property, birth or other status.
(2) Legislation may be passed addressing inequalities in society and prohibiting
discriminatory practices and the propagation of such practices and may render such
practices criminally punishable by the courts.

Privacy

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21.--(1) Every person shall have the right to personal privacy, which shall include the
right not to be subject to--
(a) searches of his or her person, home or property;
(b) the seizure of private possessions; or
(c) interference with private communications, including mail and all forms of
telecommunications.

Family and marriage

22.--(1) The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State.
(2) Each member of the family shall enjoy full and equal respect and shall be
protected by law against all forms of neglect, cruelty or exploitation.
(3) All men and women have the right to marry and found a family.
(4) No person shall be forced to enter into marriage.
(5) Sub-sections (3) and (4) shall apply to all marriages at law, custom and marriages
by repute or by permanent cohabitation.
(6) No person over the age of eighteen years shall be prevented from entering into
marriage.
(7) For persons between the age of fifteen and eighteen years a marriage shall only be
entered into with the consent of their parents or guardians.
(8) The State shall actually discourage marriage between persons where either of them
is under the age of fifteen years.

Rights of children
23.--(1) All children, regardless of the circumstances of their birth, are entitled to
equal treatment before the law.
(2) All children shall have the right to a given name and a family name and the right
to a nationality.
(3) Children have the right to know, and to be raised by, their parents.
(4) Children are entitled to be protected from economic exploitation or any treatment,
work or punishment that is, or is likely to--
(a) be hazardous;
(b) interfere with their education; or

97
(c) be harmful to their health or to their physical, mental or spiritual or social
development.
(5) For purposes of this section, children shall be persons under sixteen years of age.

Rights of women
24.--(1) Women have the right to full and equal protection by the law, and have the
right not to be discriminated against on the basis of their gender or marital status
which includes the right--
(a) to be accorded the same rights as men in civil law, including equal capacity--
(i) to enter into contracts;
(ii) to acquire and maintain rights in property, independently or in association with
others, regardless of their marital status;
(iii) to acquire and retain custody, guardianship and care of children and to have an
equal right in the making of decisions that affect their upbringing; and
(iv) to acquire and retain citizenship and nationality.
(b) on the dissolution of marriage--
(i) to a fair disposition of property that is held jointly with a husband; and
(ii) to fair maintenance, taking into consideration all the circumstances and, in
particular, the means of the former husband and the needs of any children.
(2) Any law that discriminates against women on the basis of gender or marital status
shall be invalid and legislation shall be passed to eliminate customs and practices that
discriminate against women, particularly practices such as--
(a) sexual abuse, harassment and violence;
(b) discrimination in work, business and public affairs; and
(c) deprivation of property, including property obtained by inheritance.

Education
25.--(1) All persons are entitled to education.
(2) Primary education shall consist of at least five years of education.
(3) Private schools and other private institutions of higher learning shall be
permissible, provided that--
(a) such schools or institutions are registered with a State department in accordance
with the law;

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(b) the standards maintained by such schools or institutions are not inferior to official
standards in State schools.

Culture and language

26. Every person shall have the right to use the language and to participate in the
cultural life of his or her choice.
Slavery, servitude and forced labour 27.--(1) No person shall be held in slavery or
servitude.
(2) Slavery and the slave trade are prohibited.
(3) No person shall be subject to forced labour.
(4) No person shall be subject to tied labour that amounts to servitude.

Property
28.--(1) Every person shall be able to acquire property alone or in association with
others.
(2) No person shall be arbitrarily deprived of property.

Economic activity
29. Every person shall have the right freely to engage in economic activity, to work
and to pursue a livelihood anywhere in Malawi.

Right to development
30.--(1) All persons and peoples have a right to development and therefore to the
enjoyment of economic, social, cultural and political development and women,
children and the disabled in particular shall be given special consideration in the
application of this right.
(2) The State shall take all necessary measures for the realization of the right to
development. Such measures shall include, amongst other things, equality of
opportunity for all in their access to basic resources, education, health services, food,
shelter, employment and infrastructure.
(3) The State shall take measures to introduce reforms aimed at eradicating social
injustices and inequalities.
(4) The State has a responsibility to respect the right to development and to justify its
policies in accordance with this responsibility.

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Labour
31.--(1) Every person shall have the right to fair and safe labour practices and to fair
remuneration.
(2) All persons shall have the right to form and join trade unions or not to form or join
trade unions.
(3) Every person shall be entitled to fair wages and equal remuneration for work of
equal value without distinction or discrimination of any kind, in particular on basis of
gender, disability or race.
(4) The State shall take measures to ensure the right to withdraw labour.

Freedom of association
32.-(1) Every person shall have the right to freedom of association, which shall
include the freedom to form associations.
(2) No person may be compelled to belong to an association.

Freedom of conscience
33. Every person has the right to freedom of conscience, religion, belief and thought,
and to academic freedom.

Freedom of opinion
34. Every person shall have the right to freedom of opinion, including the right to
hold opinions without interference to hold receive and impart opinions.

Freedom of expression
35. Every person shall have the right to freedom of expression.

Freedom of the press

36. The press shall have the right to report and publish I freely, within Malawi and
abroad, and to be accorded the fullest possible facilities for access to public
information.

Access to information

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37. Subject to any Act of Parliament, every person shall have the right of access to all
information held by the State or any of its organs at any level of Government in so far
as such information is required for the exercise of his rights.

Freedom of assembly
38. Every person shall have the right to assemble and demonstrate with others
peacefully and unarmed.

Freedom of movement and residence

39.--(1) Every person shall have the right of freedom of movement and residence
within the borders of Malawi.
(2) Every person shall have the right to leave the Republic and to return to it.

Political rights
40.--(1) Subject to this Constitution, every person shall have the right--
(a) to form, to join, to participate in the activities of, and to recruit members for, a
political party;
(b) to campaign for a political party or cause;
(c) to participate in peaceful political activity intended to influence the composition
and policies of the Government; and
(d) freely to make political choices.
(2) The State shall, where necessary, provide funds so as to ensure that, during the life
of any Parliament, any political party which has secured more than one-tenth of the
national vote in elections to that Parliament has sufficient funds to continue to
represent its constituency.
(3) Save as otherwise provided in this Constitution, every person shall have the right
to vote, to do so in secret and to stand for election for public office.

Access to justice and legal remedies

41.--(1) Every person shall have a right to recognition as a person before the law.
(2) Every person shall have access to any court of law or any other tribunal with
jurisdiction for final settlement of legal issues.

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(3) Every person shall have the right to an effective remedy by a court of law or
tribunal for acts violating the rights and freedoms granted to him by this Constitution
or any other law.

Arrest, detention and fair trial

42.--(1) Every person who is detained, including every sentenced prisoner, shall have
the right--
(a) to be informed of the reason for his or her detention promptly, and in a language
which he or she understands;
(b) to be detained under conditions consistent with human dignity, which shall include
at least the provision of reading and writing materials, adequate nutrition and medical
treatment at the expense of the State;
(c) to consult confidentially with a legal practitioner of his or her choice, to be
informed of this right promptly and, where the interests of justice so require, to be
provided with the services of a legal practitioner by the State;
(d) to be given the means and opportunity to communicate with, and to be visited by,
his or her spouse, partner, next-of-kin, relative, religion counsellor and a medical
practitioner of his or her choice;
(e) to challenge the lawfulness of his or her detention in person or through a legal
practitioner before a court of law; and
(f) to be released if such detention is unlawful.
(2) Every person arrested for, or accused of, the alleged commission of an offence
shall, in addition to the rights which he or she has as a detained person, have the right-
(a) promptly to be informed, in a language which he or she understands, that he or she
has the right to remain silent and to be warned of the consequences of making any
statement;
(b) as soon as it is reasonably possible, but not later than 48 hours after the arrest, or if
the period of 48 hours expires outside ordinary court hours or on a day which is not a
court day, the first court day after such expiry, to be brought before an independent
and impartial court of law and to be charged or to be informed of the reason for his or
her further detention, failing which he or she shall be released;
(c) not to be compelled to make a confession or admission which could be used in
evidence against him or her;

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(d) save in exceptional circumstances, to be segregated from convicted persons and to
be subject to separate treatment appropriate to his or her status as an unconvicted
person;
(e) to be released from detention, with or without bail unless the interests of justice
require otherwise;
(f) as an accused person, to a fair trial, which shall include the right--
(i) to public trial before an independent and impartial court of law within a reasonable
time after having been charged;
(ii) to be informed with sufficient particularity of the charge;
(iii) to be presumed innocent and to remain silent during plea proceedings or trial and
not to testify during trial;
(iv) to adduce and challenge evidence, and not to be a compellable witness against
himself or herself;
(v) to be represented by a legal practitioner of his or her choice or, where it is required
in the interests of justice, to be provided with legal representation at the expense of
the State, and to be informed of these rights;
(vi) not to be convicted of an offence in respect of any act or omission which was not
an offence at the time when the act was committed or omitted to be done, and not to
be sentenced to a more severe punishment than that which was applicable when the
offence was committed;
(vii) not to be prosecuted again for a criminal act or omission of which he or she has
previously been convicted or acquitted;
(viii) to have recourse by way of appeal or review to a higher court than the court of
first instance;
(ix) to be tried in a language which he or she understands or, failing this, to have the
proceedings interpreted to him or her, at the expense of the State, into a language
which he or she understands; and
(x) to be sentenced within a reasonable time after conviction;
(g) in addition, if that person is a child, to treatment consistent with the special needs
of children, which shall include the right--
(i) not to be sentenced to life imprisonment without possibility of release;
(ii) to be imprisoned only as a last resort and for the shortest period of time;

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(iii) to be separated from adults when imprisoned, unless it is considered to be in his
or her best interest not to do so, and to maintain contact with his or her family through
correspondence and visits;
(iv) to be treated in a manner consistent with the promotion of his or her sense of
dignity and worth, which reinforces respect for the rights and freedoms of others;
(v) to be treated in a manner which takes into account his or her age and the
desirability of promoting his or her reintegration into society to assume a constructive
role; and
(vi) to be dealt with in a form of legal proceedings that reflects the vulnerability of
children while fully respecting human rights and legal safeguards.

Administrative justice
43. Every person shall have the right to--
(a) lawful and procedurally fair administrative action, which is justifiable in relation
to reasons given where his or her rights, freedoms, legitimate expectations or interests
are affected or threatened; and
(b) be furnished with reasons in writing for administrative action where his or her
rights, freedoms, legitimate expectations or interests if those interests are known.

Limitations on rights
44.--(1) There shall be no derogation, restrictions or limitation with regard to--
(a) the right to life;
(b) the prohibition of torture and cruel, inhuman or degrading treatment or
punishment;
(c) the prohibition of genocide;
(d) the prohibition of slavery, the slave trade and slave-like practices;
(e) the prohibition of imprisonment for failure to meet contractual obligations;
(f) the prohibition on retrospective criminalization and the retrospective imposition of
greater penalties for criminal acts;
(g) the right to equality and recognition before the law;
(h) the right to freedom of conscience, belief, thought and religion and to academic
freedom; or
(i) the right to habeas corpus.

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(2) Without prejudice to subsection (1), no restrictions or limitations may be placed
on the exercise of any rights and freedoms provided for in this Constitution other than
those prescribed by law, which are reasonable, recognized by international human
rights standards and necessary in an open and democratic society.
(3) Laws prescribing restrictions or limitations shall not negate the essential content of
the right or freedom in question, shall be of general application.
(4) Expropriation of property shall be permissible only when done for public utility
and only when there has been adequate notification and appropriate compensation,
provided that there shall always be a right to appeal to a court of law.
(5) Wherever it is stated in this Constitution that a person has the right to the services
of a legal practitioner or medical practitioner of his or her own choice, that right shall
be without limitation, save where the State is obliged to provide such services of a
legal practitioner or medical practitioner, in which case an Act of Parliament may
prescribe that the choice of the legal practitioner or medical practitioner should be
limited to those in Government service or employment.

Derogation and public emergency

45.--(1) No derogation from rights contained in this Chapter shall be permissible save
to the extent provided for by this section and no such derogation shall be made unless
there has been a declaration of a state of emergency within the meaning of this
section.
(2) The President may declare a state of emergency--
(a) only to the extent that it is provided for in this section;
(b) only with the approval of the Defence and Security Committee of the National
Assembly;
(c) only in times of war, threat of war, civil war or widespread natural disaster;
(d) only with regard to the specific location where that emergency exists, and that any
declaration of a state of emergency shall be publicly announced; and
(e) only after the state of emergency has been publicly announced.
(3) Derogation shall only be permissible during a state of emergency--
(a) with respect to freedom of expression, freedom of information, freedom of
movement, freedom of assembly and rights under section 19 (6) (a) and section 42 (2)
(b);

105
(b) to the extent that such derogation is not inconsistent with the obligations of
Malawi under International Law; and
(c) to the extent that--
(i) in the case of war or threat of war, it is strictly required to prevent the lives of
defensive combatants and legitimate military objectives from being placed in direct
jeopardy; or
(ii) in the case of a widespread natural disaster, it is strictly required for the protection
and relief of those people in the disaster area.
(4) The declaration of a state of emergency and any action taken in consequence
thereof shall be in force for a period of not more than twenty-one days, unless it is
extended for a period of not longer than three months, or consecutive periods of not
longer than three months at a time, by resolution of the National Assembly adopted by
a majority of at least two-thirds of all its members.
(5) The High Court shall be competent to hear applications challenging the validity of
a declaration of a state of emergency, any extension thereof, and any action taken,
including any regulation enacted, under such declaration.
(6) Where a person is detained under a state of emergency such detention shall be
subject to the following conditions--
(a) an adult family member or friend of the detainee shall be notified of the detention
as soon as is reasonably possible and in any case not later than forty-eight hours of
detention;
(b) the name of every detainee and a reference to the measures in terms of which he or
she is being detained shall be published in the Gazette within five days of his or her
detention;
(c) when rights entrenched in section 19 (6) (a) or section 42 (2) (b) have been
suspended--
(i) the detention of a person shall as soon as it is reasonably possible but not later than
ten days after his or her detention, be reviewed by a court, and the court shall order
the release of the detainee if it is satisfied that the detention is not necessary to restore
peace or order;
(ii) a detainee shall at any stage after the expiry of a period of five days after a review
under of subparagraph (i) be entitled to apply to a court of law for a further review of
his or her detention, and the court shall order the release of the detainee if it is
satisfied that the detention is no longer necessary to restore peace or order;

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(d) the State shall for the purpose of a review referred to in paragraph (c) submit
written reasons to justify the detention or further detention of the detainee to the court,
and shall furnish the detainee with such reasons not later than two days before the
review.
(7) If a court finds the grounds for the detention of a person to be unjustified or illegal
it shall order his or her release and that person shall not be detained again on the same
grounds unless the State shows good cause to a court prior to such re-detention.
(8) Under no circumstance shall it be possible to suspend this Constitution or any part
thereof or dissolve any of its organs, save as is consistent with the provisions of this
Constitution.

Enforcement
46.--(1) Save in so far as it may be authorized to do so by this Constitution, the
National Assembly or any subordinate legislative authority shall not make any law,
and the executive and the agencies of Government shall not take any action which
abolishes or abridges the fundamental rights and freedoms conferred by this Chapter,
and any law or action in contravention thereof shall, to the extent of the contravention,
be invalid.
(2) Any person who claims that a fundamental right or freedom guaranteed by this
Constitution has been infringed or threatened shall be entitled--
(a) to make application to a competent court to enforce or protect such a right or
freedom; and
(b) to make application to the Ombudsman or the Human Rights Commission in order
to secure such assistance or advice as he or she may reasonably require.
(3) Where a court referred to in subsection (2) (a) finds that rights or freedoms
conferred by this Constitution have been unlawfully denied or violated, it shall have
the power to make any orders that are necessary and appropriate to secure the
enjoyment of those rights and freedoms and where a court finds that a threat exists to
such rights or freedoms, it shall have the power to make any orders necessary and
appropriate to prevent those rights and freedoms from being unlawfully denied or
violated.
(4) A court referred to in subsection (2) (a) shall have the power to award
compensation to any person whose rights or freedoms have been unlawfully denied or

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violated where it considers it to be appropriate in the circumstances of a particular
case.
(5) The law shall prescribe criminal penalties for violations of those non-derogable
rights listed in subsection 44 (1).

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 Appendix Two

JUDICIAL REVIEW PROCEDURE AND

REMEDIES

If you carefully follow the guidance laid down in this Manual it is unlikely that any
of your decisions will be successfully challenged in the courts. This does not mean
that the decisions may not be challenged at all. Every person does have the right to
seek judicial review of administrative decisions; whether the review ends in his or her
favour is a different question. The law lays out the procedure which must be followed
by any person applying for judicial review. This appendix seeks to briefly explain
that procedure.

The Rules of Standing

The person making the challenge, called the applicant, has several hurdles to
overcome. First of all he or she must have “sufficient interest” (or “standing” or
“locus standi”) in the matter that they want to have reviewed. The idea is that people
who are not really affected by a decision or action of a public body should not be able
to challenge the decision or action. If they were allowed then the courts would be
flooded with hypothetical litigation. In Malawi locus standi is usually
straightforward. The courts require that the applicant should have some specific legal
interest in the matter that separates the applicant from society as a whole before he or
she will be able to have locus standi. If the applicant has no interest over and above
the general interest that everyone else, he or she lacks locus standi; he or she must be
directly affected by the decision or action in order to be allowed to challenge it. For
instance, a person challenging a decision to refuse him a permit or a civil servant who
has been interdicted unheard will clearly have sufficient interest in the matter
challenged. Thus in R.B. Kachere and Others v. The President and the Speaker
(1994) certain individuals calling themselves concerned citizens who considered that
the President and Speaker had not properly observed the Constitution were held by

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the Malawi Supreme Court of Appeal to lack locus standi because they had no special
interest in the matter over and above that which everyone else had. Similarly in
United Democratic Front v. Attorney General (1994) a political party wishing to
challenge a Government decision not to set up a public inquiry into a matter of public
interest concerning the death of three Cabinet ministers and one Member of
Parliament was also precluded from challenging the decision. The court remarked that
only members of the families of the deceased men had locus standi in the matter. The
courts also took a similar position in the case of Civil Liberties Committee v Attorney-
General (1999) which it decided in April 2004. In that case, the court held that a human
rights non-governmental organisation did not have sufficient interest to give it locus
standi to seek judicial review of a decision of the Registrar General to cancel the
registration of a publishing company and to ban a newspaper the company published for
alleged violation of registration laws. The court held that the non-governmental
organisation’s interest in the matter was too remote since the only connection it could
claim to the case was that it was a registered body established to promote, protect and
enforce human rights, democracy and the rule of law. In other words, the organisation
had not been affected by the decision of the Registrar General to any greater extent
than any other person or organisation.

One consequence of the locus standi rules in Malawi is that an NGO generally has
no locus standi to challenge the decisions of the Government that does not affect it.
In other countries –– particularly England and South Africa –– the rules of the
standing have been liberalized. If an applicant can make a strong case showing that
an unlawful decision has been made, his challenge is unlikely to fail simply because
of lack of standing particularly where the issue concerns human rights or the
environment. Such a liberal approach was taken in the case of Registered Trustees of
the The Public Affairs Committee v Speaker of the National Assembly (2003) in which
the High Court condemned the restrictive approach adopted in earlier cases as
representing “narrow, legalistic and pedantic ways of interpreting constitutional
provisions.” The court then allowed a non- governmental organisation to bring an
action in the High Court over an alleged breach of the constitutional provisions of
which it was not a direct victim as such. However, this decision was subsequently
criticised heavily by the Supreme Court of Appeal which restated that in Malawi, a
party has to prove a direct interest in the matter over and above that of everyone else.

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 The Requirement of Leave

The second hurdle that must be overcome by the applicant is the requirement of leave
–– the applicant must first of all approach the High Court and ask for leave (or
permission) to make an application for judicial review. The application is often made
to the court ex parte (see glossary for definition of ex parte). In addition, to have
standing, the applicant will need to show that he or she has “an arguable case” and
that he or she has not unduly delayed in seeking leave. As a general rule, the
application must be made within three months of the disputed decision but the court
can allow an application to be made later than that where good reasons for the delay
are shown. On the other hand, where the matter may cause serious administrative
inconvenience to the State or financial loss to third parties if it is overturned the court
may refuse leave even when the application is made within the three months. There is
a right of appeal to the Malawi Supreme Court of Appeal against a refusal of leave;
and the government can apply to the court to set aside the grant of leave where it can
show that it has been improperly granted, e.g. because the applicant misled the court
as to what actually happened or the applicant failed to disclose to the court all
material facts including those favourable to the Government.

The Substantive Hearing

Once leave has been granted the matter can then be proceeded to a substantive
hearing. The first thing that should happen after leave is that the relevant papers are
served on the Attorney General on behalf of the relevant Government Department.
These papers are primarily the court form (Form 86A) in which the applicant sets out
the decision which he or she is challenging as well as the grounds of that challenge
and the remedies that he or she is seeking. This is backed up with an affidavit from
the applicant giving the evidence necessary for the court to understand what has
happened

Unlike ordinary civil litigation action, there is no legal requirement that the
Government should be informed by the applicant that he or she plans to apply for

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judicial review until leave has been granted. So the grant of leave, and the arrival of
the relevant documents, can come as a bit of a surprise. However, you will usually be
aware that there is dissatisfaction with a decision well before it comes to court and it
will be quite likely that there has been correspondence about the matter. Sometimes
applicants will inform the Government that they are making the application and the
Government will then be able to appear in court and argue that leave should not be
granted. At the same time as leave is granted applicants will often apply for interim
relief, i.e. a remedy, such as an interim injunction, which will prevent the Government
implementing the decision until its lawfulness has been finally determined. But the
grant of such an interim injunction is in the discretion of the court. (Remedies are
discussed in more detail below).

Once leave has been granted, the relevant government department usually has fifty-
six days in which to make a replying affidavit. The fifty-six day period may,
however, be shortened where the applicant has successfully applied for an expedited
hearing, because of the urgency of the matter in question. The applicant may also
have secured a court order that the relevant documents should be disclosed and this
will have to be complied with. You will of course take appropriate legal advice at this
point and will be guided by that (see Appendix Four). However, two points may be
made. First, if the applicant’s affidavit reveals that there has been some error made
by the Government Department in question and the error is acknowledged this is the
time to settle the dispute before legal costs mount. It will also be less embarrassing to
the Government to settle a weak case at this point rather than have the judge find
against the State at the end of the public hearing. There is little point, therefore, in
defending a weak case or seeking legal advice from the Attorney General in such
circumstances. Secondly, in drafting the replying affidavit, of course with legal
advice, you should remember that you have a duty of openness. The reasoning
process and justification for the challenged decision should be fully explained so that
the judge can see and understand the difficulties faced by the decision-maker. You
should also point out the practical consequences that would flow from finding that the
decision was unlawful. There may be a further exchange of affidavits but then the
matter will go to the substantive hearing.

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In judicial review proceedings there is seldom any dispute about what happened; the
dispute is over whether the decision was lawful or not. Consequently, there is seldom
oral evidence given in judicial review proceedings. All the evidence will be in the
affidavits given by both sides, so all that is required is arguments on the facts and the
law. What usually happens is that the applicant’s lawyer (or the applicant himself if
he does not have a lawyer) introduces the case and makes submissions to the court on
the law. The Attorney General or his lawyer will then address the court. The
applicant’s lawyer will then have the opportunity to reply to the issues raised by the
Attorney General or his lawyer. The court, perhaps after a delay while it considers
the arguments, will then give judgment.

Remedies

If the court comes to the conclusion that the decision is unlawful the question will
then arise what remedy should be given to the applicant. All the remedies, except
damages, available in an application for judicial review are in the discretion of the
court. So the successful applicant has no right to a remedy although the applicant will
normally be granted one unless he or she has been guilty of improper conduct .

The following are the remedies that are available :

“certiorari” – which is a court order which quashes (or sets aside) a decision or
subordinate legislation that has been found to be unlawful. For example, where a
licence has been revoked by the licesing authority without giving the licensee a
hearing, the decision to revoke is quashed.

“prohibition”, which is a court order telling a person or body not to perform a

particular act held unlawful. For example, where a licensing authority is prohibited
from revoking a licence without giving the licensee a hearing.

“mandamus” which is a court order telling a person or body to perform a public duty.
So, for example, where a public authority has the duty to approve building plans,
mandamus will issue to ensure that that duty is complied with.

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“a declaration” where the court declares what the law is, for example, that a decision
is unlawful. This is not a coercive remedy. It states the rights of the parties without
changing them in any way. It does not force the government department to comply
but if action, e.g. the taking of property, is taken on the basis of a decision declared
unlawful this will be a trespass and damages will be available.

“an injunction”, usually an order not to do something, but it can be positive requiring
something to be done. It is a contempt of court to refuse to comply with an
injunction. This contempt is punishable by a fine and in grave cases imprisonment –
even of a Minister. An injunction can be interim or permanent. It is usually granted
as a temporary remedy until the substantive case within which it has been granted has
been concluded in the court.

“damages:’ in a limited number of circumstances. Where the dispute is a contractual

dispute with the government or a tort dispute against the government, the application
for judicial review is the inappropriate procedure. Damages are not generally
available for maladministration, so damages are seldom awarded in judicial review
proceedings. Used in its plural form, “damages” means compensation for a wrong
suffered by a litigant. It should not be confused with the word “damage” in its
singular form (see also “damages in the glossary).

The parties to judicial review proceedings may appeal to the Malawi Supreme Court
of Appeal if they are dissatisfied with the outcome of the original application for
judicial review.

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 Appendix Three

THE PROCEDURE FOR TAKING DISCIPLINARY

ACTION AGAINST A CIVIL SERVANT

Public Service Commission Regulations

We have seen an example above in considering the case of Chawani v. The Attorney
General of how the dismissal of a civil servant without a proper hearing is unlawful
as well as being inconvenient and expensive for the State. In this Appendix we set
out the procedure to be adopted for taking disciplinary action against a civil servant.

As laid down in the Constitution, the Civil Service Commission is an independent

body which is responsible for the appointment and the removal of civil servants from
office (section 187) although it can, subject to conditions, delegate that exercise of
these powers (section 188). The Commission can hear complaints and appeals
against the exercise of such delegated powers, and quash such exercise of power
(section 188).

The procedure to be adopted is set out in Public Service Commission Regulations

(PSCR) and many of the matters that can relate to discipline – including what
amounts to misconduct – are set out in the Malawi Public Service Regulations
(MPSR). Although both these sets of Regulations were made before the current
Constitution came into force, they continue to have effect because of section 200 of
the Constitution (transitional provisions) and section 9 of the Public Service Act No.
19 of 1994 (PSCR and MPSR are deemed to have been made under the Act of 1994).

Every civil servant will have a “Responsible Officer” who is designated under the
MPSR and is responsible for his conduct and discipline. In most cases the
“Responsible Officer” is the most senior officer in the civil servant’s Ministry or
Department usually a Principal Secretary. The first thing that happens in most

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disciplinary matters is that a Responsible Officer of the civil servant’s Ministry or
Department becomes aware of information which suggests that the civil servant may
have been guilty of misconduct.

“Misconduct” is very widely defined in Chapter II of Book One of the MPSR.

“Misconduct” may be broadly summarized as including where the civil servant:-

is “absent from his post” without permission or excuse;

performs his or her duties “negligently”,

“displays insubordination”.

is “incompetent or inefficient” after having been warned to improve;

is under the “influence of intoxication liquor or habit-forming drugs during

normal hours of attendance”,

is “declared bankrupt”,

“suffers pecuniary embarrassment” such as to interfere with his duties;

discloses information improperly or for personal gain;

makes private use of Government moneys or property;

fails to take reasonable care of Government property;

has a financial interest in the affairs of his department, without the consent
of the Minister

does or permits to be done any act “prejudicial to the administration,

discipline or efficiency of the Civil Service”;

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 is convicted of offences involving dishonesty such a s theft, bribery,
corruption or fraud;

attempts to bring political influence to bear on his position;

willfully interferes with his duties as a Civil Servant;

makes a false claim against the Government;

accepts valuable presents form those he meets in the discharge of his

duties;

writes or speaks to the media about matters connected with the Civil
Service (other than in discharge of his duties);

becomes a director of a company; or

does not place the whole of his time during normal working hours at the
disposal of the Government;

or works outside the Civil Service for remuneration.

It is important to note that some of these acts of misconduct are so broad and vague
that their validity could be challenged in court for being inconsistent with the
Constitution’s guarantee of human rights (which civil servants also have). As a result
of this, the Government has initiated a process to review some of them in order to
harmonise the provisions on misconduct with the requirements of the Constitution.

The Preliminary Investigation

Once he or she has become aware of information suggesting that the civil servant has
been guilty of misconduct, the controlling officer (if he or she is not the responsible

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officer) must report that to the “Responsible Officer” for the civil servant. The
“Responsible Officer” then conducts a preliminary investigation. If he or she
concludes that there is no misconduct that would warrant the exercise of disciplinary
control, he or she may take no further action or issue a reprimand or a warning.
Nothing further is then done save that the reprimand or warning is entered into the
officers personal file (along with the officer’s reply).

The Responsible Officer in conducting the preliminary investigation will need to

ensure that he complies with the duty to be procedurally fair imposed by section 43 of
the Constitution. He will also need to give reasons in terms of the same section for
the conclusion which he reaches.

Interdiction and Suspension

Where, after the preliminary investigation, the Responsible Officer concludes that the
public interest requires that the civil servant should cease to exercise his powers and
functions he or she makes an order of “interdiction” against the officer and reports the
matter to the Commission. Where an officer is interdicted he or she ceases to exercise
his or her powers, cannot leave Malawi without the permission of the Responsible
Officer, and either receives no salary (where he is suspected of misappropriation of
funds or obtaining his position by fraud) or half salary in most other cases unless the
Commission directs a different proportion.

The Commission may further order the suspension of a civil servant whenever the
officer has been convicted of a criminal offence. Suspension prevents the civil
servant form exercising the powers and functions of his or her office and deprives him
of his or her salary. He or she is not paid any salary until the Commission cancels the
order of suspension.

Charges

If no question of criminal proceedings arises, the Responsible Officer drafts

disciplinary charges in respect of the alleged misconduct. These are submitted to the

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Solicitor General for advice and if he advises that charges be brought, notice of the
intention to refer such charges to the Commission is served upon the civil servant
giving him a reasonable time to answer the charges in writing. If the Responsible
Officer does not consider that answer “a sufficient answer”, he forwards the charges
to the Commission with comments and recommendations.

On receipt of these charges the Commission, if it considers that no further

investigation is necessary, may forthwith determine the penalty, if any, to be imposed.
This is what regulation 47 (2) of the PSCR. Says. It must be doubted whether in the
light of section 43 of the Constitution it is appropriate that the Commission can
determine the penalty without hearing the civil servant. Regulation 47(2) needs to be
be amended if it is to be safe from challenge for being inconsistent with the
Constitution. In the meantime, the Commission is advised to impose a penalty only
after hearing the civil servant. In the more usual case the Commission shall direct a
disciplinary inquiry to take place, either before the Commission considers that the
matter would not warrant the infliction of a punishment more severe than stoppage of
increment, it can order an inquiry before a single officer.

The Disciplinary Enquiry

The procedure to be adopted by the Commission or by the committee of inquiry is set

out in regulation 49 (committees of inquiry) and regulation 50 (Commission) of the
PSCR. These regulations require that due notice of the time and place of the meeting
be given to the civil servant and the Responsible Officer. The committee (or the
Commission) then proceeds to investigate the matter thoroughly. It is not bound by
the technical rules of evidence, instead it relies upon the best evidence it can procure.
The Responsible Officer presents the evidence against the civil servant who is given
an opportunity to cross-examine the witnesses and to present his own evidence
whether written or oral. There are provisions to ensure that the civil servant is not
taken by surprise by the evidence and, if the Responsible Officer is legally
represented, so too may the civil servant be. On the whole, the procedure set out in
the regulations will comply with the requirements of section 43 save that no mention
is made of the duty to give reasons. Reasons should be given in terms of that section.

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The committee then makes a report to the Commission setting out its conclusions but
not making any recommendations regarding the form of punishment. That
punishment may be:

dismissal;
termination in terms of the civil servant’s contract (typically by notice);
reduction in grade, rank or seniority;
reduction in salary;
stoppage of increment;
withholding of increment;
severe reprimand; or
compulsory retirement.

The imposition of a penalty by the Commission without giving the civil servant an
opportunity to make representations as to why a severe penalty should not be imposed
does not appear to comply with section 43 of the Constitution. This is particularly
true where the Commission considers information relevant to the penalty which has
not been disclosed to the civil servant. The duty to give reasons would also apply
here. It is advisable that the Commission hears the civil servant on why a severe
penalty should not be imposed before imposing such a penalty.

Where a civil servant has been dismissed following the direction of the Commission,
there is a right of appeal to the President provided that he has not been dismissed for
an offence involving dishonestly or because he obtained his post by false
representation.

Criminal Proceedings

Often the misconduct that justifies disciplinary action against a civil servant will also
justify criminal proceedings against the civil servant. If the preliminary investigation
reveals conduct that may warrant criminal proceedings, the Responsible Officer must
consult the Director of Public Prosecutions. Generally the Responsible Officer only

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reports to the Commission once the civil servant has been convicted or acquitted.
Where the civil servant has been acquitted, disciplinary proceedings may still be
brought arising out of conduct in the matter provided that they do not raise
substantially the same issues. Where the civil servant has been convicted – which
will often in itself be misconduct – the matter is reported to the Commission with a
copy of the judgment with a recommendation.

Absconding Officers

Special more drastic provisions apply to civil servants who abscond. “Abscond” is
defined as “being absent from duty without leave or just reason for a period exceeding
48 hours”. Where a Responsible Officer reports that a civil servant has absconded,
the Commission, without further investigation if it so decides, may dismiss that civil
servant or impose another penalty. However, such an officer may apply for
reinstatement to the Responsible Officer who will comment and make
recommendations to the Commission. The Commission may inquire into the reasons
for the civil servant’s absence; and if it considers it desirable may reinstate the civil
servant with a penalty less than dismissal. It may, of course, refuse the application.

As we have seen, where the civil servant is “absent from his post” without permission
or excuse he is guilty of misconduct and proceedings may be taken against him. But
an absent civil servant will not be able to be dismissed in the summary fashion
described above for an absconding officer. It is a misconception to think that where
the whereabouts of the mission officer are known, he or she is not to be considered an
absconder. What matters under the regulations is whether the officer has been absent
from duty without leave or just reason for a period exceeding 48 hours regardless of
whether his or her whereabouts are known.

Industrial Class Employees

Acts of misconduct in relation to industrial class employees are outlined in Book

Three, regulation 3:110 of MPSR. An industrial class employee is guilty of
misconduct, whether in the course of his or her duties or not, which is inconsistent

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with the fulfillment of the express or implied conditions of his or her employment.
For example, a driver who drives a Government vehicle without a valid driving
licence would be guilty of misconduct since it is an implied condition of his
employment as a driver in the Government that he or she holds a valid driving licence
at all times. Other types of misconduct are willful disobedience of lawful orders;
failing to display the level of skill which an employee expressly or impliedly holds
himself or herself out to possess; habitual or substantial neglect of duties; and absence
from work without permission or other reasonable excuse.

By virtue of regulation 3:111, the Responsible Officer of an industrial class employee

is the authority (subject, of course, to the principles of law discussed in this Manual)
in determining whether an industrial class employee has committed an act of
misconduct in terms of regulation 3:110. Where misconduct is established,
punishment includes a warning or reprimand, deferrement or stoppage of wage
increment, where applicable, and dismissal. However, an employee who has served
for more than three years may not be dismissed unless the dismissal is confirmed
personally by his or her Responsible Officer and procedural fairness and the rules of
administrative justice are followed, There is no need to first interdict an industrial
class employee who has committed an act of misconduct before punishment is meted
out since there is no requirement to report misconduct of such employees to the
Commission.

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 Appendix Four

THE LAW OFFICERS AND WHEN TO TAKE

LEGAL ADVICE FROM THEM

You will or might have come across the term “Law Officers” at one time or another.
Section 2 (1) of the General Interpretation Act defines “law officer” as the person for
the time being holding the office of Attorney General or Solicitor General. By section
50 of this Act, “any power conferred or duty imposed on the Attorney General may,
unless a contrary intention appears, be exercised or performed by the Solicitor
General if the Attorney General is unable to act owing to illness or absence; or the
Attorney General authorizes the Solicitor General to act in any particular matter or
class of matters”.

Most importantly, section 98 of the Constitution makes the Attorney General the
principal legal adviser to the Government. The office may be held either by a
Minister of public officer as the President, who appoints the holder, may deem
appropriate. Section 98 provides further that the Attorney General may exercise the
powers vested in him or her in person or through his or her subordinate officers
including the Solicitor General. Requests for legal advice may therefore be addressed
to the Attorney General or the Solicitor General. In addition, as explained above in
Appendix Three, the Public Service Commission Regulations provide that in taking
disciplinary action against a civil servant, draft charges should be referred to the
Solicitor General for advice. Ordinarily, only Government Ministries and
Departments are entitled to representation by the Attorney General. Local authorities
and other public authorities such as statutory corporations are required to engage their
own lawyers as they have legal personality separate from that of the Central
Government.

The timing of any request for seeking the Attorney General’s advice depends on the
circumstances of each case and the level of experience of each decision-maker.

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However, it is always preferable that legal advice should be sought before a matter is
so advanced that irreparable damage has been done already either to the interests of
the State or to the rights of the individuals concerned. It should be noted though that
members of the Attorney-General’s Chambers do not attend departmental meetings
where matters of policy and administration are under discussion. Only where specific
legal problems are expected to arise should the attendance of a lawyer in the Ministry
of Justice be sought.

The procedure for seeking legal advice will be found in the “Attorney General’s
Memorandum (Ref. No. C 343/40 of the 30th December, 1980)” entitled “Procedure
for Obtaining Legal Advice and for the Preparation, Publication and Passing of
Proposed Legislation.” The important points to note are the following:

1. A request for advice, and the advice given, must be in writing. All officers in the
Attorney General’s Chambers have been instructed not to give advice over the
telephone or to officers who “drop in”. The reason for this is that oral advice is
frequently misunderstood and misinterpreted: and no responsibility is taken for
such advice.

2. The request for advice must be made by or through the Principal Secretary and
directed to the Attorney-General or the Solicitor-General rather than to individual
members of the Attorney-General’s Chambers. It is important that the Attorney-
General and Solicitor General must know about the subject of the request.

3. It is vital that the written request should give the facts fully and accurately of the
situation that has occasioned the request for advice. In particular the request
should take care to disclose all adverse information and documentation. A legal
opinion given while in possession of only some of the relevant facts is often
worthless.

4. Although not mentioned in the Attorney General’s Memorandum, it is also

important the Ministry or Department seeking advice should suggest any solutions
to the problem that has arisen citing, where applicable, provisions of the

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legislation relevant to the problem. Most importantly, it must understand fully the
subject matter in respect of which advice is sought.

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 Appendix Five

THE COURT SYSTEM IN MALAWI

The Constitution establishes three types of courts, namely, the Malawi Supreme Court
of Appeal, High Court of Malawi and such courts subordinate to the High court as
may be prescribed by an Act of Parliament. The subordinate courts consist of the
magistrate courts, industrial relations court and traditional or local courts. The latter
are not yet operational. It should be noted that the traditional courts which existed
under the previous constitution were integrated into the Judiciary in 1994 and
renamed magistrate courts.

For the purpose of this Manual, the most relevant are High Court and the Supreme
Court of Appeal. The High Court has unlimited original jurisdiction to hear and
determine any civil and criminal cases under any law. In particular, it has original
jurisdiction “to review....any action or decision of the Government... and shall have
other jurisdiction and powers as may be conferred on it by this Constitution and any
other law” (section 108 (2) of the Constitution). It is for this reason that all judicial
review proceedings are commenced in the High Court and not the other courts. But
the High Court also has jurisdiction to hear cases brought before it on appeal from the
subordinate courts.

Unlike the High Court, the Supreme Court of Appeal does not have original
jurisdiction to hear and determine any case at first instance. Despite being the highest
court in the land, it hears and determines cases brought before it only on appeal from
the High Court or such other courts and tribunals as an Act of Parliament may
prescribe (section 104 (2) of the Constitution).

It is important at this stage to emphasise that the judiciary consists of the courts and is
one of the three branches of Government. The Ministry of Justice is not part of the
judiciary; nor is it responsible for its operations and administration. The Ministry,

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like all other Ministries and departments, is an integral part of the executive branch of
the Government. The overall administration of the judiciary, on the other hand, is the
responsibility of the Registrar of the High Court to whom should be addressed all
correspondence concerning the judiciary. The High Court has three registries: the
Principal Registry in Blantyre, the Lilongwe District Registry and the Mzuzu District
Registry. Zomba has no registry yet but has a resident judge. Each of the two District
Registries has a District Registrar who is responsible for the operation and
administration of his or her District Registry. But the Registrar should not be
confused with the Registrar General, an officer in the Ministry of Justice, whose
responsibilities are unconnected with the administration or operation of the courts.

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 APPENDIX SIX

No. 19 PUBLIC SERVICE ACT 1

(Published 16th May, 1994)

Act
No. 19 of 1994

I assent

H. KAMUZU BANDA
PRESIDENT
16th May, 1994

ARRANGEMENT OF SECTIONS

SECTION

PART I – PRELIMINARY
1. Short title and commencement
2. Application

PART II – FUNDAMENTAL
PRINCIPLES FOR THE
ADMINISTRATION
OF THE PUBLIC SERVICE
3. Character of the public service
4. Entry and advancement to be based on merit
5. Appointment to posts
6. Appointment of public officers above the rank of under secretary
7. Fair and equal treatment of public officers

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 8. Equal pay
9. Code of conduct
10. Deployment of public officers
11. Retention of public officers
12. Promotion and training
13. Welfare, etc., for public officers
14. General approach in the management of the public service

PART III – PUBLIC SERVICE

ADMINISTRAITON AND
MANAGEMENT
15. Constitution and abolition of public offices
16. The head of the public service
17. Functions of the head of the public service
18. Establishment of posts of Secretary for Human Resource Management
and Development
19. Establishment of Department of Human Resource Management and
Development
20. Responsibilities of the Secretary for Human Resource Management and
Development
PART IV – ADMINISTRATION OF MINISTRIES AND DEPARTMENTS
21. Responsibilities of Principal Secretaries and heads of department
22. Supervision of administration of ministries
23. Accountability of Principal Secretaries and heads of department
24. Accountability by management
PART V – INDIVIDUAL RIGHTS AND RESPONSIBILITIES OF PUBLIC OFFICERS
25. Responsibility and role of officers
26. Right of officers regarding terms and conditions of service
PART VI – MISCELLANEOUS
27. Restriction on termination of the service of public officers
28. The Civil Service Commission, etc.
29. Retirement age
30. Regulations
31. Savings

129
An Act to make provision for the administration of the public
service and for matters ancillary thereto or connected therewith
ENACTED by the Parliament of Malawi as follows –

PART I – PRELIMINARY
1. This Act may be cited as the Public Service Act, 1994 and shall Short title and
commencement
come into operation on such date as the Minister shall appoint by
notice published in the Gazette.

2. This Act shall apply with respect to the administration of the Application

public service save as otherwise provide under any written law with
respect to any part of the public service.

PART II – FUNDAMENTAL
PRINCIPLES FOR THE
ADMINISTRATION
OF THE PUBLIC SERVICE
3. The public service shall– Character of the
public service
a) aim to deliver services to the public in an efficient and
effective manner;
b) be the instrument for generating and maintaining public
confidence in the government;
c) be impartial, independent and permanent so as to enable
the public to continue to receive Government services
and in order that the executive functions of the
Government continue uninterrupted irrespective of
which political party is in power;
d) be guided only by concerns of the public interest and of
the welfare of the public in the delivery of services and
the formulation and implementation of development
projects;
e) aim to achieve and maintain the highest degree of
integrity and proper conduct amongst the personnel at

130
 all grades.

4. Entry into and advancement within the public service Entry and Entry and
advancement to be
based on merit
shall be determined solely on the basis of merit, namely, relative
ability, knowledge, skill and aptitude after fair and open competition
which assures that all citizens receive equal opportunity.

5. – (1) In selecting candidates for appointment to posts in the public service, the selecting Appointment to
posts
authority shall have regard primarily to the need for promoting efficiency in the public
service.

(2) No person shall be appointed in the public service except to

fill a post which is appropriately established and is vacant and has
been properly estimated for in the estimates of expenditure.

6. Subject to the Constitution, the power to appoint any person in Appointment of

public officers
above the rank of
the public service to a post above the rank of under secretary shall vest under secretary

in the President.

7. All public officers shall be treated fairly and equally in all aspects Fair and equal
treatment of public
officers
of human resource management and development without regard to
their political, tribal or religious affiliation or to their sex, age or origin
in Malawi.

8. The basis for remuneration of public officers shall be equal pay Equal pay

for work of equal value and recognition for excellence in the

performance of their duties as determined by an objective method of
evaluation.

9. Disciplinary provisions to regulate the code of conduct of public Code of conduct

officers shall be in accordance with regulations made, or deemed to

have been made, under this Act.

10. The deployment of public officers within the public service shall Deployment of
Public Officers

131
be based solely on the exigencies of the service, balancing the
following factors–
(a) the need to promote and achieve higher individual output of
the public officer and to ensure his job satisfaction;
(b) the need to achieve higher organizational performance of the
public service; and
(c) the attainment of national objectives.
11. The retention of a public officer in the public service at any time Retention of public
officers
after his appointment shall be justified only on the basis of the need for
his duties and his satisfactory performance of those duties.

12. All public officers shall be accorded opportunity for career Promotion and
training
advancement and self-development through promotions and
appropriate available training.

13. All public officers shall be accorded facilities for staff welfare, Welfare, etc., for
public officers
job satisfaction, higher quality of working life, rewards and incentives
through the establishment and institution of appropriate schemes and
mechanisms.

14. The management of the public service shall be based on modern General approach
in the management
of the public
and appropriate human management concepts and techniques within a service

framework which meets the basic requirements–

(a) efficient and effective delivery of service to the public;
(b) concern for the welfare of public officers, as employees;
(c) adherence to law;
(d) administration of staff regulations with sensitivity to the social
and economical impact of such administration on the
individual public officer

PART III – PUBLIC SERVICE ADMINISTRATION AND

MANAGEMENT
15. – (1) Subject to the Constitution and to any other written law, the Constitution and
abolition of public
offices

132
power to constitute or abolish public offices and to designate the titles
thereof shall be exercised by the Minister by order published in the
Gazette.
(2) An order made under subsection (1) may provide for––
(3) Without restriction on the generality of subsection (2), such
order may include provisions––
(a) making in any enactment regulating the number of offices in
respect of which, or the number of office holders in respect of
whom, emoluments may be paid, such modifications as may be
expedient; and
(b) Amending any enactment relating to the appointment,
powers, duties, rights or liabilities of any officer
holding the office specified in the order or bearing the
same style and title as an officer appointed to an office
specified in the order.
16. The Secretary to the Cabinet shall be the head of the public The head of the
public service

service.

17. Subject to this Act and any general or special directives of the Functions of the
head of the public
service
Minister, the Secretary to the Cabinet, as head of the public service,

shall be responsible for the overall management and administration of

the public service and, without restriction on the generality of the

foregoing, he shall––

(a) with the approval of the Minister, formulate, direct and co-

ordinate the overall national policy in relation to the public

service respecting––

(i) objectivity and permanency of service;

(ii) principles and criteria for recruitment, retention,

advancement and termination of service;

(iii) staff welfare, motivation and remuneration of public

133
 officers;

(iv) deployment, utilization and performance evaluation;

(v) career planning, training, development and

performance of the public service; and

(vi) discipline;

(b) provide leadership on all matters pertaining to the public

service, including the development of––

(i) a positive public image of the public service;

(ii) high integrity and morale, and excellency in the

performance of duty by the public service; and

(iii) fair and equitable treatment of all public officers;

(c) develop specific public service goals and priorities, to be

achieved within a medium and long-term time frame.

18. There shall be established the post of Secretary for Human Establishment of
post of Secretary
for Human
Resource Management and Development (in this Act referred to as the Resource
Management and
Development
“Secretary for Human Resource Management and Development”) who

shall be a public officer and shall be responsible for administering this

Act.

19. There is hereby established a department of the Government to Establishment of

Department of
Human Resource
be known as the Department of Human Resource Management and Management and
Development

Development, to be headed by the Secretary for Human Resource

management and Development, and the principal objectives of which

134
shall be––

(a) to effectively and judiciously administe rthe provisions of this

Act and regulations made thereunder;

(b) to continuously examine the public service related needs and

priorities at various levels of the administration of the

Government and assess the relevance and effectiveness of

current administrative instruments of the public service with a

view to recommending appropriate measures to meet the

requirements of this Act;

(c) to develop and maintain sound and effective public service

systems and practices appropriate to the requirements of

Malawi;

(d) to periodically review the extent of centralization or

delegation of authority necessary for efficient and effective

performance of the public service; and

(e) to develop, introduce and judiciously administer the public

service conditions of service, codes, of ethicks, precedents

and norms to ensure that the integrity of the service, staff

morale and welfare and overall performance of the public

service continuously remain high.

20. –– (1) Subject to this Act, the Secretary for Human Resource Responsibilities of
the Secretary for
Human Resource
Management and Development shall take overall responsibility and Management and
Development
related functions, on behalf of the Secretary to the Cabinet, with
respect to the administration and management of the public service.

(2) Without restriction on the generality of subsection (1), the

135
Secretary for Human Resource Management and Development shall be
responsible for the following––
(a) human resource planning;
(b) human resource training and development
(c) human resource complement, grading and deployment;
(d) human resource management;
(e) recruitment and promotion policy;
(f) performance and productivity improvement;
(g) direction, co-ordination and control of all professional,
technical and administrative activities relating to functions
specified in paragraphs (a) and (f) of this section;
(h) co-ordination of the training, development and utilization of
human resources allocated to the Department of Human
Resource Management and Development;
(i) management of all human resources, finances, materials,
supplies and equipment allocated to the Department of Human
Resource Management and Development in all fields and at
all levels of the operation of the Department in an effective
and efficient manner;
(j) development and maintenance of close liaison with national,
regional and international agencies, and project the needs of
Malawi in the field of public service sector human resource
management;
(k) ensuring effective and efficient overall management of the
Department of Human Resource Management and
Development through, among other things, the development
and maintenance of an effective organizational structure, the
introduction of efficient personnel work systems and
procedures, providing positive leadership and supervision and
the introduction of appropriate internal efficiency evaluation
measures to enhance the overall performance of the
Department;
(l) submission of periodic management reports to the Secretary to

136
 the Cabinet, analyzing in detail the achievements and
management constraints being encountered by the public
service and a plan of action for achieving further progress; and
(m) such other functions as may be prescribed by the Minister by
regulations.

PART IV –– ADMINISTRATION OF MINISTRIES AND

DEPARTMENTS
21. –– (1) The Principal Secretary of every ministry or the head of Responsibilities of
Principal
Secretaries and
department of every department, as the case may be, shall be the heads of
department
overall Controlling Officer of that Ministry or department.
(2) Without restriction on the generality of subsection (1), a
Controlling Officer shall, subject to the Constitution, be responsible
for ––
(a) the management and administration of all resources of the
ministry or department in accordance with appropriate public
service regulations;
(b) setting directions, objectives and appropriate guidelines and
strategies for the ministry or the department; and
(c) initiating, formulating, implementing and reviewing the
policies of the ministry or the department.

(3) Where the functions of a ministry or department have been

assigned to a Minister, the Principal Secretary or head of department,
as the case may be, shall be responsible for advising the Minister on
all matters relating to the management and administration of the
ministry or the department.

(4) In the performance of his functions, the Principal Secretary

and the head of a department shall be subject to the general and special
direction of the Minister.

22. Subject to the Constitution and to the general and special Supervision of
administration of
Ministries

137
directions of the Minister, the supervision of the administration of a
ministry (including any department of that ministry) shall at all times
remain the responsibility of the Principal Secretary of that ministry.

23. The Principal Secretary of a ministry and the head of Accountability of

Principal
Secretaries and
department, as the case may be, shall be accountable for all the heads of
department
administrative activities of the ministry or department for which that
Principal Secretary or head of department is responsible.

24. Subject to this Act, every public officer in the management level Accountability by
management
of a ministry or department shall be responsible for the efficient
management of the resources of that ministry of department and shall
be accountable in respect of the management of the resources of that
ministry or department.

PART V –– INDIVIDUAL RIGHTS AND RESPONSIBILITIES OF

PUBLIC OFFICERS
25. Subject to this Act, every officer employed in the public service Responsibility and
role of officers
shall be responsible for the execution of the duties and tasks properly
assigned to him and shall be accountable for his actions in the
mobilization and utilization of resources made available in relation to
the execution of duties and tasks.

26. Subject to the Constitution and to this Act, every officer Right of officers
regarding terms
and conditions of
employed in the public service has the right of access to the terms and service

conditions on which he is employed.

27. –– (1) Except in circumstances where a public officer has Restriction on

termination of the
service of public
absconded from his duties within the meaning ascribed to the word officers

“abscond” by the Ministry by regulations made or deemed to have

been made under this Act, or the post held by the public officer has
been abolished, no public officer appointed to an established post in
the public service on permanent and pensionable terms shall be

138
dismissed or otherwise have his service terminated at the instance on
the Government unless––
(a) he is proved to have committed a prescribed act of
misconduct;
(b) he is presented with a notice of the disciplinary charge in
writing specifying the prescribed act of misconduct he is
alleged to have committed; and
(c) he is allowed a reasonable period, being not less than twenty-
one days from the date of the notice of the disciplinary charge,
within which he may reply to the charge in writing.

(2) Where a public officer has attained qualifying service for

mandatory retirement or for retirement at his own option or with the
approval of the Minister or other appropriate authority, termination of
his service on the basis of a disciplinary charge presented to him in
accordance with subsection (1) shall be by way of retirement from
service as if he had opted, or obtained the appropriate approval, to
retire, unless the act of misconduct in question involves
misappropriation of, or failure to account for, public funds or public
stores entrusted to his control or custody.

28. Subject to the Constitution, the Civil Service Commission and The Civil Service
Commission, etc.
every other Service Commission established under the Constitution
shall, in the performance of its function, be bound and guided by the
provisions of this Act.

29. –– (1) Subject to subsection (2), no officer shall continue to serve Retirement age

in the public service after attaining the mandatory retirement age of 55

years.

(2) The Minister amy, from time to time, by order published in

the Gazette, revise the mandatory retirement age prescribed under
subsection (1)

139
30. ––(1) The Minister may, subject to the Constitution and this Act, Regulations

make regulations for the administration, regulation and disciplinary

control of the public service and for matters incidental thereto.

(2) Without restriction on the generality of subsection (1), any

such regulations may make provisions for––
(a) the terms and conditions of service of public officers; and
(b) the performance of the functions of any appropriate authority
and the forms and procedures to be followed by such
authority in the exercise of its functions, or by a person to
whom such functions may have been lawfully delegated.

31. Any regulations or other subsidiary legislation applicable with Savings

respect to the terms and conditions of service of public officers

immediately before the commencement of this Act and which are or is
capable of being made under section 30––
(a) shall continue in force and be deemed to be regulations or
other subsidiary legislation made under this Act; and
(b) may be amended or replaced by subsidiary legislation made
under this Act.

Passed in Parliament this sixteenth day of May, one thousand, nine hundred and
ninety-four.

D.C. BANDAWE
for Clerk of Parliament

140
 GLOSSARY OF TERMS

The authors have selected the words that follow to help Ministers and public servants
to understand their meaning. They may or may not have been used in the Manual.
They have been selected because Ministers and public servants are likely to come
across them in the performance of their duties. It should be noted that a word or term
in this glossary may have more than one meaning. In such case, only the meaning
relevant to the performance of public duties has been used. Accordingly, not every
meaning of a word or tem has been reflected. If you are in doubt as to the meaning or
usage of particular word or tem in this glossary, consult the Law Officers before
applying it to the circumstances before you.

In preparing this glossary, the authors have greatly relied upon the definitions given
by Osborn’s Concise Law Dictionary (8th Edition) and other reference materials, and
acknowledge that help. However, as will be seen, the definitions have been adapted to
suit the purposes of this manual.

ab initio: From the beginning

absolute: Complete and unconditional. A rule or court order,

which is complete and becomes of full effect at once.
e.g., decree absolute, garnashee order absolute. Contrast
and see “Nisi” below

abuse of process: Abuse of legal procedure. A frivolous or vexatious

action as e.g. setting up a case which has already been
decided by a competent court or taking a step calculated
to defeat the course of justice.

act of God: An accident or event which happens independently of

human intervention and due to natural causes, such as
storm, earthquake, etc., which no human foresight can

141
 provide against, and of which human prudence is not
bound to recognise the possibility. It will relieve from
absolute liability in tort.

Act of parliament: The legislative decree of Parliament; a statute. It is

enacted into law by parliament from a Bill (see Bill
below) published in the Gazette and presented to and
debated by Parliament (section 49 of the Malawi
Constitutions). An Act of Parliament is also knows as
primary or principal legislation and takes precedence
over other forms of law but is subject to the
Constitution (section 48(2) of the Constitution). It
comes into force upon being assented to by the
President and published in the Gazette (section 73 and
74 of the constitutions).

Every Act begins with a long title, the function of which

is to indicate the general purposes of the Act. The long
title is part of the Act. It is important because it is
legitimate to use it for the purpose of interpreting the
Act as a whole and ascertaining its scope (Vacher &
Son Ltd. v London Society of Compositors (1913). It
may not, however be looked at to modify the
interpretation of plain and unambiguous language (Re
Wykes [1961]). The long title appears immediately
before section 1 of the Act.

In addition to the long title, every Act has a short title.

The short title has the characteristics of a label. It
identifies and describes. Its sole purpose is to enable
facility of reference and the objective is therefore
identification rather than description. Lord Moulton
once described the short title in the Vacher & Sons Ltd
case as “a statutory nickname to obviate the necessity of

142
 always referring to the Act under its full and descriptive
(i.e. long) title”. The short title almost invariably
appears in section 1 of every Act of Parliament.

action: A civil proceeding commenced by writ to summons or

in such other manners as may be prescribed by rules of
court. Also civil action.

affidavit: A written statement in the name of a person, called the

deponent, by whom it is voluntarily signed and sworn to
or affirmed before a commissioner of oaths. It must be
confined to such statements as the deponent is able of
his or her own knowledge to prove, but in certain cases
it may contain statements of information and belief with
the sources of grounds thereof. The parties to civil
proceedings may agree that their case be tried upon
affidavit, and the court may order that any particular
facts, or the evidence of any particular witness, shall be
proved by affidavit. Affidavits are of infinite variety.

audi alteram partem: Hear the other side (the hearing rule)

bar: The professional body of practising lawyers, so called

because they are “called to the bar” of the High Court
when admitted by the Chief Justice to practice the law
in the courts of Malawi. A person who is entitled and
intends to practice law in Malawi is required by the
Legal Education and Legal Practitioners Act, Cap. 3:04
of the Laws of Malawi to petition the Chief Justice for
admission to the Malawi bar. No person may practice
the law without being first “called to the bar” by the
Chief Justice. However, the Act exempts lawyers in the
Ministry of Justice who are qualified in terms thereof
from this Ministry of Justice who are qualified in term

143
 thereof from this requirement and may therefore
practice without first having been called to the bar.

bar: (1) A partition across a court of justice. Only counsel and

parties to a case are allowed within the bar.
(2) To bar a legal right is to destroy or end it, e.g. bar a
cause of action under the Limitation Act. Cap. 6:02.

bench: The judges of a court of law, including magistrates.

bill: A formal written proposal to parliament for the

enactment of a written law which, having been passed
by the National Assembly and assented to by the
President (in his capacity as Head of State), becomes an
Act of Parliament. A bill initiated by the Government is
known as a public bill. A private member’s bill is a bill,
which has been initiated by any Members of Parliament,
whether from the Government or the opposition side. A
bill initiated by an agency that is not part of the
Government is known as a private bill (see section 66
(2) of the constitution).

bill of costs: A statement or account delivered to his or her client by

a lawyer setting out in detail the work done on behalf of
the client and showing the amount charged for each
item, including disbursements. The bill of costs to be
enforced must be signed by the lawyers or one of the
partners in a firm lawyers and must be delivered to the
party to be charged.

A client who is dissatisfied with a bill of costs, may

have it reviewed and verified by the Registrar of the
High Court. The Registrar examines the bill and, if

144
 necessary, reduces it. This process is called “taxation of
costs”.

bona fide: In good faith, honestly, without fraud, collusion or

participation in wrong-doing.

by-laws or bye-laws: Rules made by some authority (subordinate to the

legislature) for the regulation, administration or
management of a certain district, property, undertaking,
etc., and binding on all persons who come within their
scope. By-laws are the means by which local
government authorities exercise their regulative
functions. They are given power to do this under the
Local Government Act, 1998. To be valid, a by-law
must be intra vires (i.e. made pursuant to powers
granted by legislation), certain in its terms, not
unreasonable and must not be retrospective or
repugnant to the Constitution or the general law of the
land. It must also be published in the Malawi
Government Gazette.

common law: That part of the law of England formulated, developed

and administered by the old common law courts, based
originally on the common customs of England and
unwritten. It is opposed to equity; and to statute law (the
law laid down in Acts of Parliament or
subsidiary/subordinate/delegated legislation).

complainant: one who makes a complaint to the courts

constructive dismissal: a dismissal to be inferred from the fact that the

employer’s conduct is such that the employee has no
choice but to resign.

145
contempt of court: The offence of contempt of court consists of conduct
which interferes with the administration of justice or
impedes or perverts the course of justice. Contempt may
be civil or criminal. Civil contempt consists of a failure
to comply with a judgment or order of a court or the
breach of an undertaking to the court. Whilst being
termed civil contempt, the offence is criminal in nature.
Criminal contempt is a wider concept and encompasses
activities both inside and outside the court. Such
contempt may take the form of interrupting court
proceedings, refusing to answer questions before a court
without lawful excuse or scandalizing the court.

costs in civil proceedings: The general rule is that a successful litigant in civil
proceedings in entitled to his or her costs; costs follow
the event. But costs are always in the discretion of the
court and there may be statutory or other restrictions on
the award of costs.

Costs must be payable on the following basis –

(1) The party and party basis;

(2) The solicitor and own client basis;
(3) The indemnity basis;
(4) Standard basis

In some cases, e.g. where judgment is taken in default,

the successful litigant is entitled only to fixed costs, i.e.,
costs prescribed by reference to a scale prescribed by
law.

A litigant in person is entitled to his or her costs

incurred where costs would have been awarded if a
lawyer had been instructed.

146
counsel: In England, it refers to practising barristers and not to
solicitors. In Malawi, it refers to practising legal
practitioners. (In Malawi the legal profession is fused
and does not make the distinction between barristers
and solicitors as in England). In contrast, judges are
known as members of the bench. The word “counsel” is
used both in its singular or plural form (hence one
counsel, two counsel, etc., but not two counsels).
Counsel who have distinguished themselves in their
practice of the law may be appointed by the President to
be Senior Counsel “learned in the law”. Senior Counsel
may be called upon by the President to give legal advice
on important legal issues. In practice, the Attorney
General, Solicitor General and Judges of the Malawi
Supreme Court of Appeal are often made Senior
Counsel by reason of their seniority in the legal
profession.

counterclaim: A response by the defendant to an action who alleges in

his or her defence a claim, relief or remedy against the
plaintiff, instead of bringing a separate action.

damages: In its plural form, is compensation or indemnity for a

loss suffered by a person following a tort or breach of
contract or breach of some statutory duty.

declaratory judgement: a judgment which conclusively declares the legal

relationship of the parties without the appendage of any
coercion decree. Such a declaration may be made
whether or not any consequential relief is or could be
claimed. So a declaratory judgement may be along with
other relief e.g. damages or injunctions.

147
de facto: existing in fact

default: to make default is to fail in some duty; e.g. to pay a sum

due; or failure to take any step required by the rules or
procedures; e.g. in default of acknowledgement of
service of court process or of defence, the plaintiff may,
in general, proceed in the absence of the other party, to
judgment. Such a judgment may be set aside and the
defendant allowed to file his defence, but the defendant
must give good reasons why service was not
acknowledge or defence filed in time usually 14 days
from the date of service of the court process on him or
her.

defendant: A person against whom an action or other civil

proceeding (other than a petition) is brought; also a
person being charged with an offence.

de jure: by right; rightful

delegated legislation: Also subsidiary or subordinate legislation. Legislation

made by some person or body under authority given to
that persons or body by an Act of Parliament – such as
Act in termed an enabling Act, parent Act or principal
legislation. Examples of delegated legislation are:
statutory orders, regulations, rules and by-laws. Section
58 of the Malawi Constitution requires that delegated
legislation should be laid before Parliament. It also
prohibits Parliament from delegating legislative powers
that substantively and significantly affect human rights
and freedoms recognised by the Constitution.

dictum: saying

148
duress: unlawful pressure of perform an act. It may render the
act void (i.e. of no legal effect) or voidable (i.e
rescinded at the option of the innocent party who
performed the act).

duty of care: As a term of art, the concept of duty serves to define the
interests that are protected by the tort of negligence. It
determines whether the type of loss suffered by the
plaintiff in the particular way in which it occurred can,
as a matter of law, be actionable.

ejusdem generis: (of the same kind of nature). A rule of statutory

interpretation that where particular words are followed
by general words, the general words are limited to the
same kind as the particular words. Thus, where
legislation provided that “no tradesman. artificer,
workman, labourer or other person whatsoever shall do
or exercise any worldly labour, business, or work of
their ordinary calling upon the Lord’s Day (works of
necessity and charity only excepted)”, the words “or
other person whatsoever” were to be construed ejusdem
generis with those which preceded them so that an
estate agency was not within the section (Gregory v.
Fearn [1953] (W.L.R. 974)).

equitable: (1) That which is fair;

(2) That which arises from the liberal construction
or
application of a legal rule or remedy;
(3) In particular, that which is in accordance with,
or
regulated, recognised, or enforced by the rule of
equity, as opposed to those of the common law.

149
Equity: (1) Fairness or natural justice
(2) That body of rules formulated and administered
by
the High Court of Malawi to supplement the
rules and procedure of the common law.
(3) A right to an equitable remedy, e.g. for fraud,
mistake or where an estoppel arises.
There are a number of basic principles (known as
“maxims of equity”) around which the rules of equity
have been developed. A typical maxim of equity is “He
who comes to equity comes with clean hands”. So if the
plaintiff seeking some relief is in fact a wrong doer –
does not have clean hands – he or she will fail.

estop: to deny the assertion of a right.

estoppel: A rule of evidence which precludes a person from

denying the truth of some statement made by him or
her of the existence of facts whether existing or not
which he or she has by words or conduct led another to
believe in. if a person by a representation induces
another to change his or her position of the faith of it,
he or she can not afterwards deny the truth of his or her
representation.

evidence: The means, exclusive of mere argument, which tend to

prove or disprove any matter of facts the truth of which
is submitted to judicial investigation. It may be:

1) Oral: statements made by witnesses in court or a

formal inquiry.
2) Documentary: any writing including public and
private documents, and statements of relevant facts
made by persons in writing. Video and

150
 cinematograph films and photographs are also a
form of documentary evidence.

3) Conclusive: that which a court must take as full

proof and which excludes all evidence to disprove
it.

4) Direct: that of a fact actually in issue; that of a fact

actually perceived by a witness with his or her own
sense.

5) Circumstantial: that of a fact not actually in issue,

but legally relevant to a fact in issue.

6) Real: That supplied by material objects produced for

the inspection of the court.

7) Extrinsic: that as to the meaning of a document not

contained in the document itself.

8) Hearsay: see hearsay below.

9) Indirect: that of a fact which then implies the fact at

issue. Also hearsay.

10) Original: that which has an independent probative

force of its own

11) Derivative: that evidence which derives its force

from some other source.

12) Parol: oral

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 13) Prima facie: that which a court must take as proof
of such fact, unless disproved by further evidence.

14) Primary: original documentary

15) Secondary: that other than the original; e.g. oral

evidence of the contents of a lost document.

ex gratia: As a matter of favour

ex officio: By virtue of his or her office or official position

ex parte: An application in a judicial proceeding made:

(1) by an interested person who is not a party;

(2) by one party in the absence of the other

ex post facto: By a subsequent act. After the event.

Executive: The President in his capacity as Head of Government; the

Government Ministries and Departments and their officials or
officers under cabinet ministers. The Constitution of Malawi
vests executive power and functions in the President, Ministers
and public servants.

extrajudicial: Outside the scope of legal procedure

fait accompli: An accomplished fact

fiduciary: (1) A person who holds a position of trust in relation to another

and who must therefore act for that person’s benefit. See also
trust and trustee.
(2) A fiduciary relationship exists where someone is in a
position of trust such as lawyers and their clients or the

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 Administrator-General and beneficiaries of deceased
estates, which he or she is administering.

fieri facias: [Cause to be made]. A writ of execution addressed to the sheriff

of Malawi and requiring him or her to seize property of the
debtors in order to obtain payment of a judgment debt, interest
and legal costs.

force majeure: Coercions or irresistible compulsion. It is used in commercial

contracts to describe events that might happen and that are
entirely outside the control of parties.

frustration: Under the doctrine of frustration, a contract may be

discharged, if after its formation, events occur making its
performance impossible, illegal, or different from that which
was contemplated by practices as the time it was entered into.

functus officio: [Having discharged his or her duty]. Once a judge or magistrate
has made a final decision in a case. He or she is functus officio,
and cannot rescind the decision and re-try the case. If a mistake
has occurred or one party is aggrieved, then the case may be
appealed to a higher court. In contrast, in public administration,
a decision-maker may rescind his or her decision and reconsider
a matter before him afresh in order to comply with principles of
administrative law.

garnish: to warn.

garnishee: A person who has been warned not to pay a debt to anyone
other than the third party who has obtained judgement against
the debtor’s own creditor. Thus, where B owes A money, A,
after obtaining judgement for the payment of the money to him,
may garnish C, a third party (perhaps B’d bank) who owes
money to B to pay the money to A directly.

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garnishee proceedings: A procedure by which a judgement creditor (in the preceding
example, A) may obtain a court order against a third party who
owes money to, or holds money for, the judgment debtors (in
the preceding example B). It is usual obtained against a bank
requiring the bank to pay money held in the account of the
debtor to the creditor.

garnishee order: A court order for enforcing the payment of a debt by a third
party on behalf of a judgment debtor to a judgment creditor.
An application for a garnishee order follows a two-stage
process. The first stage is an ex parte application by affidavit
for a garnishee order nisi. If an order nisi is granted, the court
will fix a day for the second stage (an inter partes hearing to
consider whether the order should be made absolute). On this
day, the garnishee (i.e. the third party) may dispute its (his or
her) liability to the judgment debtor but once the order is made
absolute, the garnishee is obliged to pay the garnished debt to
the judgment creditor. Making payment in compliance with the
order operates as a valid discharge in relation to the garnishee’s
debt to the judgment debtor.

general damages: The kind of damage which the law presumes to follow from the
wrong complained of and which therefore need not be set out in
the plaintiff’s pleadings. In contrast special damages are not
presumed to follow from the wrong complained of and,
therefore, always need to be specially pleaded. General
damages also mean damages given for a loss that is incapable
of precise estimation such as pain and suffering arising from
the negligent acts of a defendant as, e.g., in a road accident.

hearsay: The general rule is that hearsay evidence (oral statements of a

person other than one testifying or statements contained in
documents offered to prove the truth of the contents) is not

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 admissible. There are, however, many exceptions to the rule.
At common law, for example, dying declarations are
admissible; legislation may also provide for exceptions for the
purpose thereof.

holding out: A person who ‘holds himself of herself out’ as, or purports to
be, of a certain capacity (.g. a partner in a firm or a
procurement officer in a Ministry or Department), and who is
accepted by others as such. When others act on the assumption
that he or she is what he or she allows himself/herself to be
represented to be, he or she is estopped from denying the truth
of such representation. Public authorities should therefore
avoid holding out to be what they are not lest they commit their
institutions to unnecessary legal obligations.

in camera: The hearing of a case in private, either by excluding the public

from the court or by conducting the hearing in the judges’
chambers. Although criminal cases must be heard in public,
where national security is invoked by the prosecution, the
public may be excluded. Trials of juveniles may be held in
camera to protect them.

indemnify: To make good a loss which one person ahs suffered in

consequence of the act or default of another.

indemnity: A collateral contract or security to prevent a person from

suffering a loss through an act or forbearance done at the
request of another.

injunction: An order or decree by which a party to an action is required to

do, or refrain from doing, a particular thing. Injunctions are
either restrictive (preventive) or mandatory (compulsive). As
regards time, injunctions are either intelocutory (or interim) or
perpetual. A perpetual injunction is granted only after the

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plaintiff has established his or her right and the actual or
threatened infringement of it by the defendant; an interlocutory
injunction may be granted at any time after the issue of the writ
to maintain things in status quo. The High Court may be order
(whether interlocutory or final) grant an injunction in all cases
in which it appears to the court to be just and convenient to do
so. On an application for an interlocutory injunction, where
there is a serious question to be tried unless the material before
the court fails to disclose that the plaintiff has any real prospect
of being granted a permanent injunction at the trial or the court
is satisfied that the claim is frivolous or vexatious, the court
must go on to consider whether the balance of convenience lies
in favour of granting or refusing the interlocutory relief sought.
No interlocutory injunction will normally be granted where the
recoverable damages would be an adequate remedy. Where an
action for debt due and owing is brought against a defendant
who is not within the jurisdiction but who has assets in the
country, the court may grant an ex parte or interim injunction to
restrain the defendant from removing assets from the
jurisdiction pending trial. This is called a “Mareva Injunction”
named after the English case of Mareva Compania Naviera v
International Bulk Carriers Ltd. (1980).

Another form of injunctive relief is known as the Anton Piller

order. It derives its name from the English case of Anton Piller
KG v Manufacturing Process Ltd (1976). The High Court has
inherent power to make an order for the detention and
preservation of the subject-matter of a cause and the documents
relating thereto especially where there is genuine fear that the
defendant may destroy incriminating evidence if he or she is
warned of the trial in advance of the writ.

An injunction, once granted, is enforced by committal for

contempt of court for any breach.

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in persona: Against a particular person (as distinct from the whole whole
world).

in re: In the matter of.

interest: A person is said to have an interest in a thing when he or she

has rights, titles, advantages, duties, liabilities connected with
it, whether present or future, ascertained or potential, provided
they are not too remote. See also locus standi.

Any direct interest in the subject-matter of legal proceedings

disqualifies anyone from acting in a judicial capacity and will
invalidate the proceedings if such person so acts, unless such
interest is announced to or known by the parties and they waive
the right to object. This is to ensure that there is no appearance
of bias in the proceedings.

inter se: Among themselves.

intra vires: (Within the power of). See Ultra Vires.

judicial notice: The courts take cognisance or notice of matters which are so
well-known or clearly established that formal evidence of their
exercise is unnecessary: and matters of common knowledge
and everyday life, e.g., that there is a period of gestation of
approximately nine months before the birth of a child or that
Christmas day falls on 25th December of every year.

judicial review: A uniform system for the exercise by the High Court of its
supervisory jurisdiction over inferior courts. Tribunals and
public bodies and persons. Upon application to the High Court
for judicial review, the remedies available are listed in
Appendix Two of this Manual.

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licence: An authority to do something which would otherwise be
inoperative, wrongful or illegal, e.g., to enter on land which
would otherwise be a trespass.

A licence to occupy land passes no interest in contrast with a

lease. The presence or absence of exclusive possession will be
decisive in determining whether an agreement is a licence or a
lease.

A mere licence is always revocable subject to section 43 of the

Constitution. A licence coupled with an interest which is in the
nature of a grant, e.g. of sporting rights, is irrevocable until the
benefit granted has been enjoyed. If the time of enjoyment is
not limited, the giving of reasonable notice of revocation will
be necessary.

locus standi: (A place of standing). The right to be heard in a court or other

proceeding. A person who has no direct interest in something
particularly a case before a court is said to lack locus standi.

maladministration: The office of the Ombudsman is charged with the duty of

investigating in general complaints of injustice in consequence
of maladministration. The term maladministration includes
such things as bias, neglect, in attention, delay, incompetence,
perversity turpitude, arbitrariness, etc. See the section on the
Ombudsman in this Manual.

merits: The real matters in question as opposed to technicalities.

miscarriage of justice: In its legal sense means a failure of justice.

mischief of an Act of

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Parliament: The wrongs intended to be redressed by a statute: the gist or
real purpose and object of it. The mischief of an Act is often to
be found from the preamble, its long tile and sometimes from
the marginal notes.

misfeasance: Misfeasance is the improper performance of a lawful act, e.g.

where there is negligence or trespass. A misfeasor is a person
who is guilty of a misfeasance.

misrepresentation: A representation that is untrue: a statement or conduct, which

conveys a false or wrong impression. A false or fraudulent
misrepresentation is one made with knowledge of its falsehood
and intended to deceive. A negligent misrepresentation is one
made with no reasonable grounds for believing it to be true.
An innocent mispresentation is one made with reasonable
grounds for believing it to be true, as where an honest mistake
is made. A fraudulent or negligent misrepresentation may be
actionable in tort.

movables: Personal property, e.g. goods that can easily be moved around
or about.

municipal law: Also domestic or national law. The law of a state or country, as
opposed to international law, which applies to nations and some
inter-governmental organisations. The subjects of municipal
law are natural and artificial persons in a country. The subjects
of international law are states and inter-governmental
organisations such as the African Union and the United
Nations.

mutates mutandis: The necessary changes being made.

natural justice: The Court in the interest of fairness impose certain obligations
upon those with power to take decisions affecting other people.

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 These obligations arise from the rules of natural justice, which,
although lacking in precision, have generally been subsumed
under two heads: the audi alteram partem rule (i.e. hear the
other side; that no one shall be condemned unheard) and the
nemo judex in re sua rule (i.e. no person is a judge in his or her
own case). The rules of Natural Justice are widely applicable
in Malawi as result of section 43 of the Constitution much
discussed in the Manual.

negligence: As a tort, negligence is the breach by the defendant of a legal

duty to take care, which results in damage to the plaintiff.

nemo judex incausa sua: No one shall be a judge in his or her own case (the rule
against bias).

nexus: Connection or bound.

nisi: A decree, order, rule, declaration, or other adjudication of a

court is said to be made nisi when it has not taken effect unless
the person affected by it fails to show cause against it within a
certain time, that is, unless he or she appears before the court,
and gives some reason why it should not take effect.

obiter dicta: Saying by the way, utterances of judges on issues not essential
for the decision in the case.

pari passu: (With equal step). Equally, without preference.

per incuriam: A decision of a court is not a binding precedent if given per

incuriam, i.e. without the court’s attention having been drawn
to the relevant authority or statute. See ratio decidendi below.

perjury: False swearing. The making on oath by a witness or interpreter

in a judicial proceeding of a statement material in that

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 proceeding, which he or she knows to be false or which he does
not believe to be true.

personalty: See movables above.

per se: By itself, by or through himself or herself.

power: the ability conferred on a person by law to determine, by his

own will directed to that end, the legal relations of himself or
herself and others. A power is the converse of disability. It
differs from the right in that there are no accompanying duties.
Powers are public, i.e. when vested by the State in its agent or
employee; or private; when conferred by one person on
another.

power of attorney: A deed (legal instrument) by which one person empowers

another to represent him or her, or act in his or her stead either
generally or for specified purposes. The donor of the power is
called the principal or constituent; the donee is called the
attorney.

prima facie: (Of first appearance). A case in which there is evidence which
will suffice to support the allegation made in it, and which will
stand unless there is evidence to rebut the allegation. When a
case is being heard in court, the party on whom the burden of
proof rests must make out a prima facie case, otherwise the
other party will be able to submit that there is no case to
answer, and if he or she is successful, the case will be
dismissed without the need for the defendant to present his or
her case.

privity: the legal relationship which exists between parties to a

transaction e.g., a contract or other agreement. This

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 relationship prevents persons not party to a contract being
affected by it.

privy: One who is party to, or had a place or interest in something.

pro rate: In proportion.

proviso: A clause in a document qualifying an earlier provision. It

customarily commences with the words ‘provided always that’
or simply ‘provided that’.

puisne: Later born, or younger. Lesser in importance. A puise judge is

a High Court Judge other than the Chief Justice. Judges of the
Malawi Supreme Court of Appeal are known as Justices of
Appeal. The Chief Justice and Justice of Appeal are senior to
the puisne judges.

quash: To discharge or set aside, e.g. a wrongful conviction or an

administrative act subject to judicial review.

quasi: As if it were.

quasi-judicial: Executive functions which involve the exercise of a discretion

but require a part of the decision-making process to be
conducted in a judicial manner, e.g. where disciplinary
proceedings have been instituted against a civil servant
pursuant to the MPSR and PSCR. The National Compensation
Tribunal and the Ombudsman also exercise quasi-judicial
powers.

ratio decidendi: (The legal reason (or ground) for a judicial decision). It is the
ratio decidendi of a case, which will be binding on later courts
under the system of judicial precedent (as opposed to obita
dicta).

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re: In the matter of.

real property: Land: things growing in or attached to land. Accordingly,

buildings and trees and plants form part of the land on which
they are standing or growing.

realty: Real property.

remedies: See examples in Appendix Two of this Manual.

res judicata: A matter on which a court has previously reached a binding

decision.

respondent: The person against whom a petition is presented, a summons

issued, or an appeal brought.

sine die: Without fixing a day (Indefinitely).

tort: (Crooked (conduct): a wrong). An act which causes harm to a

determinate person, whether internationally or not, being the
breach of a duty arising out of a personal relation or contract
and which is either contrary to law, or an omission of a specific
legal duty, or a violation of an absolute right. A civil wrong for
which the remedy is a common law action for unliquidated
damages.

treaty: An agreement between the governments of two or more States.

The treaty-making power is part of the prerogative of the
Malawi Government, but the private rights of a subject of this
country are not affected by a treaty unless its terms are
embodied in written law. The Malawi Constitution provides
that any internal agreement:

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 (1) ratified by an Act of Parliament shall form part of the laws
of Malawi if so provided for in the Act of Parliament ratifying
the agreement and
(2) entered into before the commencement of the Constitution
and binding on Malawi shall form part of the laws of
Malawi unless Parliament subsequently provides otherwise
or the agreement otherwise lapse.

The Immunities and Privileges Act. Cap. 16:01 of the laws of

Malawi, is an example of a written law which specifically
embodies certain provisions of a treaty (i.e., the Vienna
Convention on Diplomatic Relations). A related Act is the
Treaties and Conventions Publics Act. Cap. 16:02 of the Laws
of Malawi, which enables the publication of certain
international treaties, conventions and agreements to which the
Government has acceded or become signatory, or any article,
term, covenant or provision contained therein. However, where
the treaty, convention or agreement expressly or impliedly
requires the enactment of an Act of Parliament or subsidiary
legislation for purposes of its implementation or the giving to it
of force of law or effect in Malawi, publication alone is not a
substitute for that requirement.

trust: A relation or association between one person (or persons) on

the one hand and another person (or persons) on the other,
based on confidence, by which property is vested in or held by
the one person, on behalf of an d for the benefit of another.

trustee: A person who holds property on trust for another. A trustee is

required by law to use utmost diligence in discharging the trust
duties and as regards the exercise of his discretion, he must act
honestly and use as much diligence as a prudent person of
business would exercise in dealing with his or her, own affairs.
Otherwise, the trustee may be liable for breach of trust and will

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 have to make good personally the loss thereby incurred by the
trust estate. The law relating to trustees is laid down in the
Trustees Act. Cap. 5:02 of the Laws of Malawi.

uberrimae fidei: Of the utmost good faith.

ultra vires: (Beyond the power). An act in excess of the authority

conferred by law, and therefore, invalid. In the area of public
or administrative law, the ultra vires doctrine covers the
validity of delegated legislation, decisions of administrative
tribunals and the decisions of administrative bodies (such as
those taken by Cabinet Ministers or other authorities). Under
this doctrine, the courts will examine, for example, whether
delegated legislation deals with matters outside the enabling
statute and whether procedural requirements as to the exercise
of a legislative power have been observed.

vest: To grant legal rights.

vexatious action: The High Court may, at any stage of proceedings, order to be
struck out or amended any pleading or endorsement of writ on
the ground that it discloses no reasonable cause of action or
defence; is scandalous, frivolous or vexatious; it may prejudice
or embarrass a fair trial; or it is otherwise an abuse of the
process of the court.

vexatious litigant: Person who persistently and without reasonable grounds sues or
prosecutes others.

vicarious liability: Liability which falls on one person as a result of an action of

another, e.g. the liability of an employer for the acts and
omissions of his employees.

viva voce: By word of mouth.

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void: Of no legal effect; a nullity; e.g. an agreement for an immoral
consideration. A contract may be void on the face of it, or
evidence may be required to show that it is void. But when an
illegal contract has been executed, money paid either in
consideration or performance of the contract cannot be
recovered back.

voidable: An agreement or other act which one of the parties to it is

entitled to rescind, and which until that happens, has full legal
effect: e.g. in case of fraud in a contract. If, however, the party
entitled to rescind the contract affirms the contract, or fails to
exercise his rights of rescission within a reasonable time, so
that the position of the parties becomes altered: or if he or she
takes a benefit under the contract or if third parties acquire
rights under it, he or she will be bound by it.

volenti non fit injuria: No wrong can be done to one who consents to what is
done.

voluntary: Without valuable consideration.

without prejudice: When negotiations, or letters written in the course thereof, are
stated to be “without prejudice” this means that proposals made
and not accepted are not to be admissible in evidence at the
instance of the other party, but if they are accepted, a complete
contract is established. The maker of the proposal may always
waive privilege attaching to his or her own proposal but where
part of a “without prejudice” letter is introduced into evidence,
the whole of the letter becomes admissible (Great Atlantic
Insurance Co v Home Insurance Co. (1981)).

writ of summons: A process or document issued in the court at the instance of the
plaintiff for the purpose of giving the defendant notice of the

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 claim made against him or her and of compelling him or her to
acknowledge service and answer it if he does not admit it. It is
the first step in an action.

ABOUT THE AUTHORS

Steve D Matenje joined the Ministry of Justice in 1980 as a State Advocate. He has
held various positions in the Ministry including the post of Assistant Chief
Parliamentary Draftsman before being appointed Solicitor General and Secretary for
Justice in 1995, a position which he held until 2006. when he was appointed Malawi’s
Ambassador to the United Nations. He was a member of the Special Law
Commission, which reviewed the Malawi Constitution in 1998. He first met Dr
Christopher Forsyth during the review of the Constitution and has since worked with
him on a number of constitutional and administrative law issues including facilitating
two workshops for Principal Secretaries on administrative law and procedures in
December, 2000 and December 2001. Mr Matenje holds the degree of Bachelor of
Laws (Honours) from the University of Malawi: a Diploma in International Law and
the Degree of Master of Arts (Business Law)from the University of London and a
Commonwealth Certificate in Legislative Drafting.

Dr Christopher Forsyth is Reader in Public Law and Director of the Centre for Public
Law in the University of Cambridge. He is a Barrister at Law, of the Inner Temple,
and an Advocate of the High Court of South Africa. He is also the author of many
books and articles including (with Professor Sir William Wade, QC) Administrative
Law (8th Edition, 2000) which is used by judges, practitioners, academics and students
throughout the Commonwealth. He was Technical Adviser to the Special Law
Commission which reviewed the Constitution in 1998 and has advised several other
Commonwealth governments on constitutional matters. Dr Forsyth holds the degrees
of Bachelor of Science and Bachelor of Laws from the University of Natal and the

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degrees of Bachelor of Laws and Doctorate of Philosophy from the University of
Canterbury. He is a frequent visitor to Africa.

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