CHAPTER
VI |
THE LEGISLATURE
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Parliament
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48. -
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All legislative
powers of the Republic shall be vested in Parliament which shall have the
powers and responsibilities set out in this Constitution.
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An Act of Parliament shall
have primacy over other forms of law, but shall be subject to the Constitution.
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Any question proposed for
decision by the National Assembly or by the Senate shall be decided by
a majority of the votes of the members present and voting, unless this
Constitution or any other Act of Parliament otherwise provides.
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Definitions
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49. -
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For the purposes
of this Constitution, unless otherwise provided, "Parliament" consists
of the National Assembly, the Senate and the President as Head of State.
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Unless otherwise provided
in this Constitution, an "Act of Parliament" shall be a Bill which has
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been laid before and passed
by a majority of the National Assembly;
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been laid before and passed
by a majority of the Senate; and
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been assented to by the President
in accordance with this Chapter.
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"Chamber" means either the
Chamber of the National Assembly or of the Senate.
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Quorum
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50. -
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The quorum
of each Chamber shall be formed by the presence at the beginning of any
sitting of at least two thirds of the members of that Chamber entitled
to vote, not including the Speaker or a presiding member.
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If it is brought to the attention
of the Speaker or person acting as Speaker by any member of the Chamber
over which he or she is presiding that there are less than the number of
members prescribed by the
Standing Orders of that Chamber
present and after
such interval as may be prescribed in the rules of procedure of the Chamber,
the Speaker or person acting as Speaker ascertains that the number of members
present is still less than that prescribed by the
Standing Orders of the Chamber,
he or she shall adjourn the Chamber.
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Qualifications
of Members of Parliament
6 of 1995 |
51. -
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A person
shall not be qualified to be nominated or elected as a Member of the Parliament
unless that person –
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is a citizen of the Republic
who at the time of nomination has attained-
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the age of twenty-one years,
in the case of the National Assembly; and
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the age of thirty-five years,
in the case of the Senate.
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is able to speak and to read
the English language well enough to take an active part in the proceedings
of Parliament; and
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has, within the last seven
years, been convicted by a competent court of a crime involving dishonesty
or moral turpitude;
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Notwithstanding subsection
(1), no person shall be qualified to be nominated or elected as a member
of Parliament who -
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owes allegiance to a foreign
country;
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is, under any law in force
in the Republic, adjudged or otherwise declared to be mentally incompetent;
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has, within the last seven
years, been convicted by a competent court of a crime involving dishonesty
or moral turpitude;
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is an undischarged bankrupt,
having been adjudged or otherwise declared bankrupt under any law in force
in the Republic;
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holds, or acts, in any public
office or appointment, except where this Constitution provides that a person
shall not be disqualified from standing for election solely on account
of holding that or appointment or where that person resigns from that office
in order to stand;
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belongs to, and is serving
in the Defence Forces of Malawi or the Malawi Police Force; and
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has, within the last seven
years, been convicted by a competent court of any violation of any law
relating to election of the President or election of members of Parliament.
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Oath
of allegiance |
52.
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Every
officer and member of Parliament, before taking his or her seat, or assuming
the duties of his or her office shall take and subscribe before the Chief
Justice in the Chamber in which he or she shall sit - |
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the oath of allegiance in
the form prescribed by law; and
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such other oaths for the due
performance of their respective offices as may be prescribed by law.
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The
Speaker |
53. -
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There shall
be a Speaker of the National Assembly and a Speaker of the Senate who shall
be elected by majority vote of the Chamber in which he or she sits at the
first sitting after any dissolution of that Chamber.
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The members of each Chamber
shall elect one or more persons to be Deputy Speaker or Deputy Speakers
at the first sitting after a general election in the case of the National
Assembly or after a local election in the case of the Senate and after
any event which results in a vacancy in the office of any Deputy Speaker.
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The office of Speaker shall
become vacant -
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on the death or resignation
of the Speaker;
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if the Speaker ceases to be
a member of the Chamber in which he or she sits;
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if the Speaker becomes President,
Vice-President, a Minister or a Deputy Minister or a member of the Senate;
or
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if the Chamber in which the
Speaker presides, by a resolution supported by the votes of not less than
two-thirds of all the members of that Chamber, resolves that the Speaker
be removed from office:
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Provided
that the Speaker shall have the right to be heard by the Chamber on his
or her own motion on any matter relating to his or her removal from office.
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The Speaker of each Chamber,
or in the absence of the Speaker, such Deputy Speaker of that Chamber as
the Speaker has nominated, shall preside at every sitting of that Chamber:
Provided that
in the absence of the Speaker and of every Deputy Speaker, the Chamber
may elect one among its members to act a Speaker for that session or that
sitting.
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Any person who is elected
Speaker, or any person acting as Speaker, shall discharge his or her functions
and duties and exercise such powers as he or she has by virtue of that
office independent of the direction or interference of any body or authority,
save as accords with the express will and the
Standing Orders of the Chamber
in which he or she sits.
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Notwithstanding that the Speaker
or a person acting as Speaker has been elected as a member of a political
party to the Chamber in which he or she sits he or she shall not be subject
to the control, discipline, authority or direction of that political party
or any other political party in the discharge of the functions and duties
of that office and in the exercise of the powers of that office.
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The Speaker may, where there
is a matter which is the subject of debate in the Chamber over which he
or she is presiding and which is a matter solely pertaining to his or her
constituency, temporarily vacate the Speaker's seat and participate in
that debate and exercise a deliberative vote where there is voting on that
matter.
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Casting
vote |
54. -
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Subject to
subsection 53 (7) the Speaker of a Chamber shall not have a deliberative
vote, but if the votes of the Chamber over which that Speaker is presiding
are equally divided upon any question, he or she shall exercise the casting
vote.
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Any member of the National
Assembly or Senate, other than the Speaker or Deputy Speaker, shall, when
presiding in the Chamber of which he is a member, retain his or her original
deliberative vote as a member and shall also have and exercise a casting
vote if the votes of that Chamber are equally divided.
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The
Clerk |
55.
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There
shall be a Clerk to the National Assembly and a Clerk to the Senate who
shall be public officers and shall assist the Speaker of the Chamber to
which that Clerk is appointed and perform such other functions and duties
as the Speaker may direct. |
The
right to regulate procedure
6 of 1995 |
56. -
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Subject to
this Constitution, the National Assembly, the Senate, or may by
Standing Order
or otherwise regulate its own procedure.
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Save as otherwise provided
in this Constitution, the National Assembly and the Senate may act unless
more than two-thirds of all their seats are vacant.
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The presence or participation
of any person not entitled to be present or to participate in the proceedings
of each Chamber shall not invalidate those proceedings.
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Each Chamber shall provide
access to the press and members of the public, except where a motion is
passed with reasons prohibiting public access in the national interest.
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The proceedings of Parliament
shall be conducted in the English language and such other languages as
each Chamber may prescribe in respect of its own proceedings.
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Parliament may establish any
committees of its members and may form joint committees for the scrutiny
of legislation and performance of other functions, except voting on motions
and Bills.
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In addition to any committee
appointed under subsection (6), there shall be a Public Appointments Committee,
a Budget Committee and a Legal Affairs Committee of the National Assembly
which shall each -
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be appointed by the National
Assembly with proportionate representation from all parties represented
in the National Assembly;
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appointed within thirty days
of the first sitting of the National Assembly after a general election
and thereafter annually; and
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perform such functions as
are conferred on them by this Constitution or by an Act of Parliament or
by the
Standing Orders of Parliament.
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Money
Bills |
57. -
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Except upon
the recommendation of the Minister responsible for Finance, signified in
writing, the National Assembly shall not -
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proceed upon any Bill or any
amendment to a Bill that, in the opinion of the person presiding, makes
provision for any of the following purposes -
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for the imposition of tax
or the alteration of tax;
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for the imposition of any
charge upon the Consolidated Fund, or the alteration of any such charge;
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for the payment, issue or
withdrawal from the Consolidated Fund of any moneys not charged thereon,
or any increase in the amount of such payment, issue or withdrawal; or
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for the composition or remission
of any debt due to the Government;
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proceed upon any motion or
any amendment to a motion the effect of which, in the opinion of the person
presiding, would be to make provision for any of the purposes specified
in subsection (a); or
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receive any petition that,
in the opinion of the person presiding, requests that provision be made
for any of the purposes.
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The Senate shall not have
the power to debate or vote upon any motion or receive any Bill to which
this section applies except with the recommendation of the Minister responsible
for Finance, signified in writing, and may not in any case amend or reject
such a motion or Bill.
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Subsidiary
legislation |
58. -
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Parliament
may, with respect to any particular Act of Parliament, delegate to the
executive or to the judiciary the power to make subsidiary legislation
within the specification and for the purposes laid out in that Act and
any subsidiary legislation so made shall be laid before Parliament in accordance
with its
Standing Orders.
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Notwithstanding subsection
(1), Parliament shall not have the power to delegate any legislative powers
which would substantially and significantly affect the fundamental rights
and freedoms recognized by this Constitution.
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Sessions
and sittings |
59. -
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Every session
of the National Assembly and of the Senate shall be held at such place
within Malawi and shall commence at such time as each Speaker, in consultation
with the President, may appoint with respect to the Chamber in which that
Speaker presides and the sittings of each Chamber after the commencement
of that session shall be held at such times and on such days as that Chamber
shall appoint:
Provided that - |
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the President, in consultation
with the Speaker of the relevant Chamber, may summon, on extraordinary
occasions, a meeting of the National Assembly or the Senate; and
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the President may, in consultation
with the Speaker of the relevant Chamber, prorogue the National Assembly
or the Senate.
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There shall be at least two
sittings of the National Assembly and of the Senate every year.
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Privileges
and immunities |
60. -
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The Speaker,
every Deputy Speaker, every member of the National Assembly and every member
of the Senate shall, except in cases of treason, be privileged from arrest
while going to, returning from, or while in the precincts of the National
Assembly or the Senate, and shall not, in respect of any utterance that
forms part of the proceedings in the National Assembly or the Senate, be
amenable to any other action or proceedings in any court, tribunal or body
other than Parliament.
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All official reports and publications
of Parliament or of its proceedings or of the proceedings of any committee
of the Parliament shall be privileged and utterances made in the Parliament
or in any committee thereof wherever published shall be protected by absolute
privilege.
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The National Assembly and
the Senate shall each have the power to conduct investigations and exercise
the power to subpoena the attendance of any person or office holder whosoever
as required in connexion with the prudent exercise of the respective functions
of each Chamber.
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Member's
interests |
61. -
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A member
of the Parliament, where he or she has a direct or indirect material interest
in a matter being discussed by the Chamber of which he or she is a member,
shall -
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disclose such interest to
that Chamber; and
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not be entitled to vote on
that matter without leave of that Chamber.
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Where a member of Parliament
fails to disclose a material interest in accordance with subsection (1)
that member shall be guilty of contempt of the Chamber of which he or she
is a member.
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Composition
of the National Assembly |
62. -
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The National
Assembly shall consist of such number of seats representing every
constituency in Malawi, as shall be determined by the Electoral Commission.
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Each constituency shall freely
elect any person, subject to this Constitution and an Act of Parliament,
to represent it as a member of the National Assembly in such manner as
may be prescribed by this Constitution or an Act of Parliament.
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Vacancies
in the National Assembly
31 of 1994 |
63. -
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The seat
of a member of the National Assembly shall become vacant -
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if the National Assembly has
been dissolved;
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if the member dies or resigns
his or her seat;
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if the member ceases to be
a citizen of Malawi;
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if the member assumes the
office of President or Vice-President, or becomes a member of the Senate;
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if any circumstances arise
that, if he or she were not a member of the National Assembly, would cause
that member to be disqualified for election under this Constitution or
any other Act of Parliament;
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if the National Assembly declares
a member's seat vacant in accordance with such
Standing Orders
as may permit
or prescribe the removal of a member for good and sufficient reason provided
that they accord with the principles of natural justice; or
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if a member is subject to
recall by his or her constituency in accordance with the provisions of
this Constitution or of an Act of Parliament.
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The Speaker of the National
Assembly shall give notice in the Gazette in the event that the
seat of any member of the Assembly shall become vacant under this section:
Provided that - |
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Parliament shall make provision
for holding by-elections to fill any vacancy that shall occur;
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any by-election to fill a
vacancy that occurs shall be held within sixty days after the seat of the
member becomes vacant or, if in the opinion of the Speaker the circumstances
do not so admit, then as expeditiously as possible after the expiry of
that period; and
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any member elected at a by-election
shall serve until such time as his or her seat becomes vacant in accordance
with subsection (1).
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The Speaker may, upon a motion
of the National Assembly, postpone the declaration of a vacant seat for
such period as that motion prescribes so as to permit any member to appeal
to a court or other body to which an appeal lies against a decision which
would require that member to vacate his or her seat in accordance with
this section.
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Recall
of members |
64.
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(Repealed by Act No. 6 of 1995). |
Crossing
the floor |
65. -
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The Speaker
shall declare vacant the seat of any member of the National Assembly who
was, at the time of his or her election, a member of one political party
represented in the National Assembly, other than by that member alone but
who has voluntarily ceased to be a member of that party and has joined
another political party represented in the National Assembly.
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Notwithstanding subsection
(1), all members of all parties shall have the absolute right to exercise
a free vote in any and all proceedings of the National Assembly, and a
member shall not have his or her seat declared vacant solely on account
of his or her voting in contradiction to the recommendations of a political
party, represented in the National Assembly, of which he or she is a member.
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Functions
and powers of the National |
66. -
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The National
Assembly shall be a directly elected Chamber the primary purpose of which
shall be legislative and which shall Assembly have
power, subject to this Constitution, to -
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receive, amend, accept or
reject Government Bills and Private Bills;
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initiate Private Member's
Bills on the motion of any member and amend, accept or reject all Private
Member's Bills;
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receive, amend, accept or
reject any Bills remitted from the Senate;
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debate and vote motions in
relation to any matter including motions to indict and convict the President
or Vice-President by impeachment;
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exercise such other functions
and powers as are conferred on it by this Constitution; and
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take all actions incidental
to and necessary for the proper exercise of its functions.
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For the purposes of this Constitution
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a Government Bill shall be
a Bill promulgated by the Government and introduced to Parliament on behalf
of the Government;
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a Private Bill shall be -
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promulgated by an agency that
is not part of the Government; and
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introduced to Parliament on
behalf of that agency where that agency is mandated by an Act of Parliament
so to do;
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a Private Member's Bill shall
be -
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promulgated by a member of
Parliament; and
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introduced by that member
in the Chamber of which he or she is a member in accordance with the procedure
of that Chamber.
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Dissolution
of the National Assembly
38 of 1998 |
67. -
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The National
Assembly shall stand dissolved on the 20th of March in the fifth
year after its election, and the polling day for the general elections
for the next National Assembly shall be the Tuesday in the third week of
May that year:
Provided that where it
is not practicable for the polling to be held on the Tuesday in the third
week of May, the polling shall be held on a day, within seven days from
that Tuesday, appointed by the Electoral Commission.
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This section shall not preclude
the Electoral Commission from setting other days for polling in the general
election for special classes or categories of voters, provided that such
polling takes place not more two days, before after the polling day, excluding
Sundays.
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The first meeting of the National
Assembly shall commence on a date to be appointed by the President occurring
within forty-five days after the polling day or, where polling takes place
on more than one day, within forty-five days after the last polling day
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If, between the dissolution
of the National Assembly and the general election that follows, the President
is of the opinion that a constitutional crisis or emergency has arisen
which requires urgent legislation or consideration by the National Assembly,
he or she may reconvene the National Assembly for that purpose alone but
in any event, that reconvened National Assembly shall stand dissolved on
the date of the general election.
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Notwithstanding the dissolution
of the National Assembly on the date specified in subsection (1), every
person who, immediately before the dissolution of the National Assembly
in accordance with subsection (1), is a member of the National Assembly
shall be entitled to receive his or her remuneration and other benefits
up to and including the last day preceding the general election.
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Composition
of the Senate |
68. -
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The Senate
shall consist of eighty members as follows -
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one Senator from each District,
registered as a voter in that District and elected by the District Council
of that District in secret ballot within thirty days of each
local government
election;
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one Senator from each District,
being a Chief registered as a voter in that District and elected by a caucus
of all the Chiefs of that District in secret ballot within thirty days
of each local government election;
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thirty-two other Senators
who shall be elected by a two-thirds majority of sitting members of the
Senate on the basis of nominations by the Nominations Committee provided
for in subsection (2) from all of the following sectors -
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interest groups, who shall
include representatives from women's organizations, the disabled and from
health, education, farming and business sectors, and from trade unions;
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society, who shall be such
persons as are generally recognized for their outstanding service to the
public or contribution to the social, cultural, or technological development
of the nation; and
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religion, who shall include
representatives of the major religious faiths in Malawi.
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There shall be a Nominations
Committee of the Senate which shall be formed within forty-five days of
each local government election for the purpose of nominating the representatives
referred to in subsection (1) (c) and which shall consist of the Speaker
of the National Assembly, the Ombudsman, and seven members, being Senators
elected under subsections (1) (a) or (b), appointed by the National Assembly
on a motion by the Speaker of the National Assembly.
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A Senator may be elected or
nominated for an indefinite number of subsequent terms, unless otherwise
disqualified or removed.
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The Nominations Committee
shall endeavour to ensure, when considering nominations, that the Senate
is proportionally representative of the various groups in Malawian society
and therefore shall seek to ensure, so far as it is possible, that one-half
of the members of the Senate are women.
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Vacancies
in the Senate |
69. -
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The seat
of a member of the Senate shall become vacant -
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if the Senate has been dissolved;
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if a member dies or resigns
his or her seat;
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if a member ceases to be a
citizen of the Republic;
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if a member assumes the office
of President or Vice-President, Minister or Deputy Minister or becomes
a member of the National Assembly;
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if any circumstances arise
that, if he or she were not a member of the Senate, would cause that member
to be disqualified for nomination or election under this Constitution or
an Act of Parliament; or
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if the Senate declares a member's
seat vacant in accordance with such rules and
Standing Orders
as may permit
or provide for the removal of a member for good and sufficient reason provided
that they accord with the principles of natural justice.
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The Speaker of the Senate
shall give notice to the Electoral Commission and in the Gazette
in the event that the seat of any member of the Senate becomes vacant under
this section.
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Where the seat of a member
of the Senate is declared vacant by virtue of this section -
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if that member was elected
by a District Council, then the Electoral Commission shall notify the Council
of that District which elected that member to declare an election within
thirty days of the seat becoming vacant;
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if that member was elected
by Chiefs, then the Speaker of the Senate shall notify the Chiefs of the
District from where that member was elected so as to convene the relevant
caucus of Chiefs for the election of another member;
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if that member is a sector
representative, then the Speaker of the Senate shall convene the Nominations
Committee of the Senate which shall put forward nominations for appointment
to the Senate.
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Functions
and powers of the Senate |
70.
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The
Senate shall be an indirectly elected chamber purpose the primary of which
shall be deliberative and which shall have power, subject to this Constitution,
to - |
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receive, scrutinize and amend
Bills from the National Assembly;
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vote motions to confirm or
remit Bills passed by the National Assembly;
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debate any issue on its own
motion, initiate Private Member's Bills and vote motions in respect of
any matter, including motions to indict or convict the President or Vice-President
by impeachment;
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exercise such other functions
and powers as are conferred on it by this Constitution;
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carry out such other functions
as may be delegated to it by an Act of Parliament; and
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take all actions incidental
to and necessary for the proper exercise of its functions.
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Scrutiny
by the Senate |
71. -
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All Bills
shall be laid before the Senate.
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Any member of the Senate may,
in respect of a Bill laid before the Senate -
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within fourteen days of that
Bill being laid, raise a motion to debate that Bill in full readings; or
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after fourteen days, but before
the lapse of forty days, raise a motion to remit the Bill to the National
Assembly.
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Any Bill laid before the Senate
which has not been the subject of a motion to debate within the meaning
of this section shall after the lapse of forty days, be presented for assent
by the President.
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Where a Bill is debated under
subsection (2) (a), it shall be passed back to the Speaker of the National
Assembly who shall certify that it is -
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without amendment, in which
case the Speaker shall present it for assent by the President; or
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amended, in which case the
Bill shall be laid before the National Assembly for fourteen days, provided
that if no motion to debate the Bill in full is raised by any member of
the National Assembly within that time it shall be presented in amended
form for assent by the President.
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Where a Bill has been remitted
by the Senate by virtue of a majority vote in favour of a motion under
subsection (2) (b) -
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the Senate shall give written
reasons for that remittance; and
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the Speaker of the National
Assembly shall table the Bill which may be further debated and amended,
and if passed by a majority of all the members of the National Assembly,
may be presented for assent by the President.
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Where a Private Member's Bill
has been initiated and passed by the Senate it shall be sent to the Speaker
of the National Assembly who shall table that Bill which may be further
debated and amended and, if passed by a majority of the National Assembly,
the Bill shall be presented for assent by the President.
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Dissolution
of the Senate |
72.
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The
Senate shall continue from the date of its first sitting, being no later
than thirty days after a Local Government election after any dissolution,
until it dissolves sixty days before the next Local Government elections:
Provided that the life
of the Senate shall not, in any case, be longer than three years. |
Presidential
assent
6 of 1995 |
73. -
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Where a Bill
is presented to the President for assent, the President shall either assent
or withhold assent and shall do so within twenty-one days from the date
the Bill is presented to him or her.
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Where the President withholds
assent to a Bill, the Bill shall be returned to the Speaker of the National
Assembly by the President with a notification that the President's assent
has been withheld, including reasons therefor, and the Bill shall not be
again debated by the National Assembly until after the expiry of twenty-one
days from the date of the notification of that withholding.
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If the Bill is debated again
and passed by a majority of the National Assembly at any time between the
date of the expiry of the twenty-one days referred to in subsection (2)
and three months from that date, the Bill shall again be presented for
assent by the President.
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Where a Bill is again presented
to the President for assent in accordance with subsection (3), the President
shall assent to the Bill within twenty-one days of its presentation.
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When a Bill that has been
duly passed is assented to in accordance with this Constitution, the Clerk
shall cause it to be published immediately in the Gazette.
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The
coming into force of laws |
74.
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No
law made by Parliament shall come into force until it has been published
in the Gazette, but Parliament may prescribe that a law shall not
come into force until some later date, after its publication in the Gazette. |
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