- Commenced on 23 April 1956
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
1. Short titleThis Act may be cited as the Prisons Act.
2. InterpretationIn this Act, unless inconsistent with the context—“convicted prisoner” means any prisoner under sentence of a court or court-martial;“junior officers” means a prison officer of one of the ranks of junior officers set out in the Schedule;“mechanical restraint” means restraint by the use of handcuffs, leg irons, straight jacket, or any other form of restraint approved by the Minister;“medical officer” means a medical officer appointed or nominated under section 25;“officer in charge” means the person appointed to be in charge of a prison under section 9;“official visitor” means a person appointed as such under section 38;“penal diet” means a punishment diet prescribed as a penal diet;“prison” means any building or place declared to be a prison and includes a temporary prison established under section 4;“prison officer” means any officer of the prison service and includes any officer seconded to such service;“prisoner” means any person, whether convicted or not, under detention in any prison;“prohibited article” means any article which is not issued to any prisoner by authority of the officer in charge, with the approval of the Commissioner, or in accordance with this Act;“reduced diet” means a punishment diet prescribed as a reduced diet;“senior officer” means a prison officer of one of the ranks of senior officers set out in the Schedule;“subordinate officer” means a prison officer of one of the ranks of subordinate officers set out in the Schedule and includes any person temporarily employed under section 73(5);“the service” means the prison service established under this Act;“unconvicted prisoner” means any person, not being a convicted prisoner, duly committed to custody under a writ, warrant, or order of any court, or any order of detention issued by any person authorized thereto by any Malawi law, or by order of a court-martial;“visiting justice” means a visiting justice appointed under sections 34 and 35;“weapon” means any firearm, baton, tear smoke, or such other instrument as may be prescribed;“young prisoner” means a prisoner under the apparent age of 19 years and may, at the discretion of an officer in charge, include a prisoner whose apparent age does not exceed 20 years.
Part I – Establishment of prisons
3. Establishment of prisonsThe Minister may declare any building or place in Malawi to be a prison under this Act, and may declare that any such prison shall cease to be a prison.
4. Temporary prisonsSuch provision shall be made as the Commissioner may direct for the shelter and safe custody in temporary prisons of such number of prisoners as the Commissioner may determine, and every such temporary prison shall be deemed to be a prison for the purpose of this Act.
Part II – Constitution and administration
5. Establishment of serviceThere shall be established in Malawi a prison service.
6. Application of Act to serving prison officersAll the provisions of this Act shall extend to all persons who, immediately before the date of commencement of this section, were serving as members of any prison service or department established under the Prisons Ordinance, 1945 (now repealed) as if such persons had been appointed under this Act, and service under any such legislation, for the purposes of this Act, shall be deemed to be service under this Act.[27 of 1945]
7. Commissioner of prisons and prison officersThere shall be a Commissioner of Prisons, hereinafter referred to as the Commissioner, who shall, subject to any general or special directions of the Minister, be responsible for the administration of this Act, and such prison officers as may be necessary for the administration of the prison service.
8. OfficersThe service shall consist of the ranks set out in the Schedule and that Schedule may be varied by the Minister by notice published in the Gazette.
9. Appointment of prison officers
10. Liberty to resign
11. Payments due to prison officers and other persons employed in prisons leaving the prison service may be set offA sum due to a prison officer or other person employed in prisons or to his estate by way of salary, refund of pension contributions, pension or any other benefit whatsoever may be set off against a sum payable to the Government by the prison officer or other person employed in prisons on or at the time of his retirement, resignation, loss of office, death, discharge or other termination of service, as the case may be.
12. Minister may appoint committee of inquiryThe Minister may, whenever he deems it necessary or desirable, appoint a committee of two or more persons of whom—
Part III – Powers and duties of prison officers
13. General powers and duties of CommissionerThe Commissioner shall, subject to any orders or directions of the Minister, have the administrative command, superintendence, control, and direction of prisons and prison officers, and, for the exercise of these powers, may issue standing orders relating thereto. Notwithstanding the General Interpretation Act, standing orders issued in terms of this section need not be published in the Gazette.[30 of 1991][33 of 1993][Cap. 1:01]
14. Officer in-charge of a prison to supervise and control prisonEvery officer in-charge shall supervise and control all matters in connexion with the prison to which he is appointed and shall be responsible to the Commissioner for the conduct and treatment of prison officers and prisoners under his control and for the due observance by prison officers and prisoners of this Act.
15. Powers and duties of prison officersEvery prison officer shall exercise such powers and perform such duties as may be assigned to him in accordance with this Act and shall obey all lawful directions in respect of the execution of his office which he may receive from any officer senior to him in the service.
16. Prison officers always available for dutyEvery prison officer shall be deemed to be available for duty at all times and may at any time be detailed for duty in any part of Malawi.
17. Prison officers and prohibited activities
18. Punishment by subordinate officersNo subordinate officer shall punish a prisoner unless lawfully ordered so to do by the Commissioner or by an officer in charge.
19. Use of weapons by prison officers
20. Prison officers’ power of arrestFor the purpose of apprehending any person who may have escaped from lawful custody, every prison officer shall have the power to arrest such person and to convey him to a prison.
21. Prison officers’ visits to cells
22. Power to take photographs and fingerprints of prisonersAn officer in charge may cause statistics as to height, weight, and measurements, photographs, fingerprints, handprints, and footprints of any prisoner to be taken by any person whom he may designate for such purpose, and shall make such records as the Commissioner may determine.
23. Immunity for act done under authority of warrantWhere the defence to any suit instituted against a prison officer is that the act complained of was done in obedience to a warrant purporting to be issued by a judge or a magistrate, the court shall, upon production of the warrant containing the signature of the judge or the magistrate, and upon proof that the act complained of was done in obedience to such warrant, enter judgment in favour of such prison officer.
24. Proof of signature not requiredNo proof of the signature of such judge or magistrate as is mentioned in section 23 shall be required unless the court has reason to doubt the genuineness thereof, and, where such signature is proved not to be genuine, judgment shall nevertheless be given in favour of such prison officer, if it be proved that, at the time the act complained of was committed, he believed on reasonable grounds that such signature was genuine.
Part IV – Appointment and duties of medical officers
25. Medical officers
26. Duties of medical officersSubject to section 14, the medical officer shall have the general care of the health of prisoners and shall visit the prison daily where practicable or when called upon by the officer in charge. He shall report to the officer in charge any circumstances connected with the prison or the treatment of prisoners which at any time appear to him to require consideration on medical or health grounds.
27. Medical inspection
28. Observation of prisoners charged with a capital offenceThe medical officer shall observe the mental condition of all prisoners under sentence of death or charged with a capital offence and, for this purpose, shall personally examine all such prisoners on every day on which he visits the prison, and shall furnish reports on such prisoners to the officer in charge in such form and at such times as may be prescribed.
29. Examination of prisoners in solitary confinement or in hospitalThe medical officer shall ensure that every prisoner under sentence of death, or charged with a capital offence, or in solitary confinement, or in hospital, is medically examined every day on which the medical officer visits the prison.
30. Officer in charge empowered to order prisoner to be examinedEvery officer in charge may order any prisoner to submit himself to medical examination as often as such officer thinks necessary.
31. Death of a prisonerThe medical officer shall, on the death of any prisoner otherwise than by lawful execution, record in a register to be kept for such purpose the following particulars, so far as they can be ascertained—
32. Notification of death of prisonerUpon the death of a prisoner, the officer in charge shall at once notify a magistrate or coroner and the medical officer of the prison and shall arrange for compliance with the law relating to inquests.
Part V – Visiting justices, official visitors, ministers of religion and prisoners’ aid societies
33. Judges may visit prisonsJudges of the High Court may visit and inspect any prison at any time and, while so doing, may inquire into any complaint or request made by a prisoner.
34. Ministers to be visiting justicesMinisters of Malawi Government shall be visiting justices of all prisons in Malawi.
35. Magistrates to be visiting justices in own areasMagistrates shall be visiting justices of the prisons situated in the area in which they normally exercise jurisdiction.
36. Powers of visiting justices
37. Visiting justice to record visit in prescribed bookOn completion of each visit, a visiting justice shall enter in a book to be kept for such purpose such remarks, suggestions, or recommendations for the information of the Commissioner as he may deem fit
38. Appointment of official visitorsThe Minister may appoint official visitors to any prison.
39. Duties of official visitorsAn official visitor shall—
40. Official visitors to record visit in prescribed bookOn completion of each visit, an official visitor shall enter in a book to be kept for such purpose such remarks, suggestions, or recommendations for the information of the Commissioner as he may deem fit.
41. Ministers of religion may visit prisonMinisters of religion, or other accredited representatives of any religious body recognized by the Minister whose visits are approved by the Commissioner, may at such hours and in such places as may be prescribed or as the officer in charge may permit—
42. Visits of probation officers and representives of prisoners' aid societyA probation officer appointed as such under any law, or a representative of a prisoners’ aid society who has obtained the written permission of the Commissioner, may be admitted to any prison at times to be arranged by the officer in charge.
Part VI – Discipline of prison officers
43. Offences against discipline by prison officers
44. Prison officer to have power to arrestAny prison officer may arrest without warrant any prison officer, not being an officer of his own or of senior rank or grade, whom he suspects on reasonable grounds of having committed an offence under section 43. A prison officer effecting an arrest under this section shall forthwith bring the accused before the officer in charge, who shall cause the case to be heard without undue delay and may order the remand of the accused in custody for so long as may reasonably be necessary.
45. Confinement of arrested prison officerUntil such time as his case is heard in accordance with this Act, any prison officer arrested under this Act may be confined in any prison quartets allocated for prison or. guardroom purposes, or, if no other suitable quarters are available, in any prison quarters set apart for the detention of prisoners awaiting trial.
46. Power to try junior prison officers
47. Power to try subordinate prison officers
48. Procedure after award of punishment
49. Stoppages of payAny stoppage of pay exceeding one half of the offender's monthly pay imposed by an officer in charge shall be subject to confirmation by the Commissioner and all stop pages of pay shall be recovered from the. offender s pay due or thereafter accruing, and so much only of his pay shall be stopped as shall leave him a residue of at least one-half of his monthly pay.
50. Power to summons witnesses
51. Offence against discipline may be tried by a magistrate
53. Dismissal upon fine or imprisonmentThe Minister may, on the recommendation of the Commissioner, dismiss from the service any junior or subordinate officer sentenced by a court to a fine or imprisonment in respect of any offence against any law.
54. Pay not to accrue during absence without leave or imprisonmentUnless the Commissioner otherwise orders, no pay. shall accrue to any prison officer in respect of any day during which he is absent from duty without leave or is undergoing any sentence of imprisonment.
Part VII – Desertion or inciting
55. DesertionAny prison officer who absents himself from duty without reasonable cause for a period exceeding twenty-one days shall be deemed to be a deserter and shall be liable to a fine of £100 and to imprisonment for two years.
56. Deserter maybe apprehended by a person or police officerAny prison officer or police officer who has reason to believe that any prison officer has deserted from the service may apprehend him and—
57. Penalty for inciting prison officer to desertAny person who by any means, directly or indirectly, procures or persuades, or attempts to procure or persuade, any officer of the service to desert, or who aids, abets or is accessory to the desertion of any officer of the service, or who, having reason to believe that any person is a deserter, harbours such deserter, or aids him in concealing himself or assists in his rescue, shall be liable to a fine of £50 and to imprisonment for six months.
58. Penalty for mutiny or seditionAny prison officer who mutinies and any prison officer or other person who, directly or indirectly, instigates, commands, counsels, or solicits any mutiny or sedition amongst any prison officers or prisoners or disobedience to any lawful command given by any prison officer, or who attempts to seduce any prison officer from his allegiance or duty, shall be liable to a fine of £100 and to imprisonment for two years, and in addition to any such punishment shall be liable to a sentence of corporal punishment in accordance with section 98.
Part VIII – Admission and confinement of prisoners
59. Admission of prisoners
60. Admission of infant child with female prisonerSubject to such conditions as may be specified by the Commissioner any unweaned infant child of a female prisoner may be received into prison with its mother and may be supplied with clothing and necessaries at the public expense:Provided that, when such child has been weaned, the officer in charge, on being satisfied that there are relatives or friends of the child able and willing to support it, shall cause such child to be handed over to such relatives or friends, or, if he is not so satisfied, shall hand such child over to the care of such welfare authority as may be approved for the purpose by the Commissioner.
61. Particulars of prisoner to be recordedUpon the admission to prison of any person, the officer in charge shall cause to be recorded such particulars regarding such person as may be prescribed.
62. Search of prisonersEvery prisoner, male or female, shall be searched on admission, and at such time subsequently as may be prescribed by a prison officer of his or her own sex, but not in the presence of a person of the opposite sex, and all prohibited articles taken from him.
63. Money and other effects of prisoners to be kept in custody of the officer in charge
Part IX – Segregation and classification of prisoners
64. Separation of prisoners
Part X – Custody and removal of prisoners
65. Prisoners in lawful custody of officer in chargeEvery person confined in a prison shall be in the lawful custody of the officer in charge thereof and, subject to this Act, shall remain in such lawful custody and be subject to prison discipline and to thin. Act daring the whole period of his imprisonment, whether he is or is not within the precincts of a prison.
66. Production of prisoners in court
67. Prisoners under police escort
68. Statements to police officers
69. Prisoners and criminal investigations
70. Removal of prisoners from one prison to anotherThe Commissioner may, by any general or special order, direct that any prisoner shall be removed to any prison other than that in which he is confined or to which he has been committed.
71. Certain prisoners may be restrainedWhenever the officer, in charge considers, it necessary for the safe custody of any prisoner that he should be confined by means of mechanical restraint, he may so confine him but in accordance with such regulations as may be prescribed.
72. Mentally disordered or defective prisoners
73. Removal of sick prisoners to hospital
74. Serving sentence while in hospitalThe period during which a prisoner has been detained in any hospital or institution in terms of section 72 or 73 shall be reckoned as part of his period of imprisonment.
Part XI – Labour of prisoners
75. Employment of convicted prisoners
76. Employment of unconvinced prisonersUnconvicted prisoners may elect to be given light employment, but shall be required to keep clean their cells, precincts of cells, clothing, furniture, and utensils.
Part XII – Maintenance
77. Maintenance of unconvinced prisoners from private sourcesAn unconvinced prisoner may be permitted to maintain himself and to arrange for the purchase of, or receive from private sources at proper hours, such food, clothing, bedding, or other necessaries as the Commissioner may from time to time determine.
78. Food etc., not to be transferred to other prisonersNo food, clothing, bedding or other necessaries permitted under section 77 shall be given, hired, or sold to any other prisoner, and any prisoner who contravenes this section shall be liable to lose all privileges permitted under section 77 for such time as the officer in charge may determine.
79. Food, clothing and bedding for unconvinced prisonersIf an unconvinced prisoner does not provide himself with food, clothing, and bedding, he shall receive the normal prison food, clothing, and bedding.
Part XIII – Prohibited articles and areas
80. Power to searchAny prison officer may examine anything being brought into or being taken out of a prison and may stop and search, or cause to be stopped and searched, any person or vehicle suspected by him of bringing any prohibited article into, or taking any such article out of, a prison, or of carrying out of a prison any property belonging to such prison, and the officer in charge shall immediately be informed of the finding of any such article or property and may seize and dispose of it in accordance with the instructions of the Commissioner.
81. Penalty for introduction or removal of prohibited articles into and from prison and for unauthorized communication with prisonersAny person who, save as is provided in this Act—
82. Power of arrestAny prison officer may arrest without a warrant any person who—
83. Unauthorized communications
84. Offences in respect of prisons and prisonersAny person who—
85. Removal of certain offendersAny person who is found committing an offence against section 84 may be removed from the place where he is committing such offence by a prison officer or a member of a police force and, if the offence is repeated by any such person after he has once been removed in accordance with this section, he may be arrested without warrant by prison officer who, if he makes such an arrest, shall hand the offender over to a member of a police force.
86. Unlawful possession of articles supplied to prison officersAny person, other than a prison officer, who is found in possession of any article which has been supplied to any prison officer, for the purposes of his duty, or of. any other prison property, and who fails to account satisfactorily for his possession thereof, or who without lawful authority, purchases or receives any such article, or property from any prison officer, or who aids or abets any prison officer in selling or disposing of any such article or property, shall be liable to a fine of £25 and to imprisonment for six months.
87. Offences in connexion with uniforms and decorations
88. Notice to be displayed stating offences in respect of prisons and prisonersThe officer in charge shall cause to be affixed in a conspicuous place outside the prison a notice setting forth the acts prohibited under sections 81, 84 and 86 and the penalties which may be incurred by their commission.
Part XIV – Discipline of prisoners
89. Prison offencesThe following acts and omissions shall be prison offences when committed by a prisoner—
90. Trial of prison offences
91. Punishments for prison offences heard and determined before a magistrates court
92. Punishments for prison offences heard and determined within a prison
93. Special provisions relating to the punishments of solitary confinement with penal diet and of reduced diet
Part XV – Escapes
94. Assisting prisoner to escape, etc.
95. Harboring prisonersA person harbouring or employing a prisoner whom he knows to be unlawfully at large shall be liable to a fine of £50 and to imprisonment for six months.
Part XVI – Corporal punishment
96. Prison offences for which corporal punishment may be awardedNo sentence of corporal punishment for a prison offence shall be awarded under section 91 or 92 unless the prison offence is one specified in section 89 (1), (2), (28), (29), (30), (31) or (37) or is a third or subsequent offence against any provision of that section.
97. Certain prisoners not liable to corporal punishmentNo sentence of corporal punishment for a prison offence shall be awarded in terms of section 91 or 92 to a prisoner who is—
98. Number of strokes to be specifiedWhenever a sentence of corporal punishment for a prison offence is awarded under section 91 or 92 the number of strokes, which shall not exceed twelve, shall be specified.
99. Corporal punishment; confirmationWhere any law provides for confirmation of any sentence of corporal punishment awarded by a court, no such sentence shall be carried out until it has been confirmed in accordance with such law.
100. Type of cane and method of inflictionCorporal punishment shall be inflicted with a cane of a type and in a manner approved by the Minister.
101. Medical officer and officer in charge to be present while corporal punishment is being inflictedA sentence of corporal punishment shall not be carried out unless—
102. Sentence of corporal punishment may be stayedThe medical or prison officer mentioned in section 101 may at any time during the carrying out of the sentence of corporal punishment intervene and prohibit the remainder of the sentence from being carried out if in his opinion the punishment is likely to cause more serious injury than is contemplated in the sentence.
103. Corporal punishment not to be inflicted by instalmentsNo sentence of corporal punishment shall be carried out by instalments.
Part XVII – Prisoners under sentence of death
104. Confinement of condemned prisonerEvery prisoner sentenced to death shall be confined in some safe place within a prison and, if possible, shall be kept apart from other prisoners and shall be placed under constant observation both by day and by night.
105. Persons who may have access to condemned prisonerNo person other than a prison officer, a medical officer, a visiting justice, a minister of religion, or person authorized by the Commissioner shall have access to a prisoner under sentence of death:Provided that such prisoner may, with the consent of and subject to any reasonable conditions which may be imposed by the Commissioner or the officer in charge, be visited by his legal advisers and such of his relatives and friends as he may express a wish to see.
106. Attendance at execution by officials
Part XVIII – Remission of sentence
108. Remission on special groundsThe Commissioner may recommend to the Minister, who, if he thinks fit, may recommend to the President that remission should be granted to a prisoner by reason of the meritorious conduct or the mental or physical condition of such prisoner.
Part XIX – Transitional provisions relating to a prisoner in relation to whom a licence to be at large was in force at the date of commencement of the Prisons Amendment Act, 1962
109. Transitional provisions
Part XX – Release on licence of prisoners undergoing imprisonment for life
110. Release on license of prisoners undergoing imprisonment for life
Part XXI – Report on long-term prisoners
111. Report on long-term prisoners
Part XXII – Discharge of prisoners
112. Officer in charge to be responsible for discharge of prisoners
113. Day of discharge of prisonersAll prisoners who are not persons committed to a prison under the provisions of a law relating to imprisonment for non-payment of debts shall be discharged by noon on the day on which they are entitled to be discharged, but should that day fall on a Sunday or public holiday, they shall be discharged by noon on the next preceding day not being a Sunday or public holiday.
114. Travelling expenses of prisoner on dischargeThe travelling expenses to such place as the Commissioner may determine of a prisoner on his discharge from prison shall, if the Commissioner by standing orders or otherwise so directs, be paid out of moneys provided by Parliament.
Part XXIII – Miscellaneous
115. List of prisoners detained to be delivered to High CourtEvery officer in charge within the area for which any session of a High Court is held for the trial of criminal cases shall deliver to that Court at the commencement of each such session a list of the unconvicted prisoners then within his prison, and that list shall specify in the case of each such prisoner the date of admission and the authority for detention, and shall deliver also a list of detained witnesses.
116. Rewards for apprehension of escaped prisoners
117. Commutation of death sentence to sentence of imprisonmentWhere the President pardons any person who has been sentenced to death on condition that he serves a period of imprisonment, that person shall be deemed to have been sentenced to such period by the court before which he was convicted.
118. Detention of prisoners from other countries
119. Removal of prisoners outside Malawi
120. Minister may grant permission to be absent from prisonThe Minister may, subject to such conditions as he may specify, grant a prisoner permission in writing to be absent from prison for a specified period for personal, family or other reasons if, in the opinion of the Minister, the circumstances of the case warrant the granting of such permission.
Part XXIV – Regulations and transitional
121. Power to make regulations
History of this document
23 April 1956