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National Constitutional provisions – Malawi

 

The constitution is the fundamental law of the country, reflecting the underlying and unifying values of society. It spells out the basic rights of each person; it serves as a framework for all other laws and policies, and cannot be easily changed. However, it can be changed and updated through a democratic process, and it is important to keep it alive, by popularising and using it, and by campaigning for its reform or amendment if necessary. Below we have picked out what we see as some of the most relevant articles, but please be encouraged to seek and read your constitution in its entirety.

The state is the central actor in any claim to the right to education: it is the prime duty-bearer and the prime implementer; it is the guarantor; and it is the state´s signature vis-à-vis the international norms and standards which binds it to respect, protect and fulfil the right to education. The state must therefore be judged or challenged on its central text on the right to education, whether this be the constitution, the laws or the policies.

The Constitution of Malawi 18 May 1994.

 

EDUCATION

 

Chapter III

Article 13

(f) Education

To provide adequate resources to the education sector and devise programmes in order to--

(i) eliminate illiteracy in Malawi;

(ii) make primary education compulsory and free to all citizens of Malawi;

(iii) offer greater access to higher learning and continuing education; and

(iv) promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance.

 

Chapter IV

Article 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;

(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.

 

CHILD RIGHTS

 

Chapter 13

Article 13

(h) Children

To encourage and promote conditions conducive to the full development of healthy, productive and responsible members of society.

 

Article 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

(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.

 

EQUALITY

 

Chapter III

Article 12

 (v) As all persons have equal status before the law, the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society.

 

Chapter IV

Article 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.

 

GENDER

 

Chapter III

Article 13

The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals--

(a) Gender Equality To obtain gender equality for women with men through--

(i) full participation of women in all spheres of Malawians society on the basis of equality with men;

(ii) the implementation of the principles of non-discrimination and such other measures as may be required; and

(iii) the implementation of policies to address social issues such as domestic violence, security of the person, lack of maternity benefits, economic exploitation and rights to property.

 

Chapter IV

Article 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.

 

DISABILITIES

 

Chapter III

Article 13

(g) The Disabled

To support the disabled through--

(i) greater access to public places;

(ii) fair opportunities in employment; and

(iii) the fullest possible participation in all spheres of Malawian society.

 

CITIZENSHIP

 

Chapter V

Article47

(1) Every person who, immediately before the appointed day, was a citizen of Malawi under any existing law shall continue to be a citizen of Malawi after the appointed day.

(2) An Act of Parliament may make provision for the acquisition or loss of citizenship of Malawi by any person after the appointed day, but citizenship shall not be arbitrarily denied or deprived.

(3) In this section, the expression--

(a) "acquisition of citizenship" includes acquisition by birth, descent, marriage, registration, naturalisation or any other means prescribed by an Act of Parliament; and

(b) "loss of citizenship" includes loss by deprivation, renunciation or any other means prescribed by an Act of Parliament.

 

LANGUAGE

 

Chapter IV

Article 26

Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

 

RELIGION

 

Chapter IV

Article 33

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

 

HUMAN RIGHTS MECHANISMS

 

Chapter III

Article 12

(iv) 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.

 

Chapter IV

Article 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.