Constitutional Law and the Malawian Legal System
What this domain tests
Constitutional law questions test whether you can anchor every answer in the supremacy of the Constitution of the Republic of Malawi (1994, as amended), the Bill of Rights and the structure of the courts. Expect problem questions on rights limitations, separation of powers and the High Court's supervisory jurisdiction.
Core rules
- Section 5 makes the Constitution the supreme law; inconsistent legislation, custom or executive action is invalid to the extent of inconsistency.
- Chapter IV rights bind the executive, legislature and judiciary. Section 44 permits limitation only by law, for a legitimate purpose, and to an extent reasonable, recognised and necessary in an open democratic society.
- Section 11 requires interpretation that promotes democracy, dignity and equality.
- Separation of powers allocates legislative power to the National Assembly, executive power to the President and Cabinet, and judicial power to the courts. Judicial independence is protected; courts must not be directed.
- Court hierarchy: Supreme Court of Appeal; High Court with original and constitutional jurisdiction; subordinate courts; traditional courts. The High Court has supervisory jurisdiction over inferior tribunals.
- The Director of Public Prosecutions controls criminal prosecutions; the Attorney General is principal legal adviser to Government.
Worked example
A statute requires a permit for any public assembly and allows the minister to refuse without reasons. A group is refused. The analysis starts with s.15 and s.44: assembly is a protected right; the restriction must be prescribed by law and proportionate. An unreasoned, blanket discretion is unlikely to be necessary in a democratic society. A court may declare the provision invalid and grant declaratory relief.
Traps
Weak answers cite rights without the s.44 limitation test. Do not confuse the Supreme Court's appellate role with the High Court's constitutional and review jurisdiction. Avoid treating constitutional rights as absolute, and do not ignore s.11 in interpretation.