Parliamentary and Presidential Elections Act
- Commenced on 31 December 1993
- [This is the version of this document from 3 November 2020.]
- [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.]
- [Amended by Parliamentary and Presidential Elections (Amendment) Act, 2020 (Act 18 of 2020) on 3 November 2020]
1. Short titleThis Act may be cited as the Parliamentary and Presidential Elections Act.
2. ApplicationThis Act shall apply to the election of members of Parliament and the election to the office of the President.
3. InterpretationIn this Act, unless the context otherwise requires—“ballot box” means the box into which a voter shall deposit the ballot paper or ballot papers corresponding to the candidate or candidates he has voted for in the election;“ballot paper” means a rectangular sheet of paper for use by a voter in expressing his vote in an election;“by-election” means the election of a member of the National Assembly to fill a seat in the National Assembly which has become vacant otherwise than by dissolution of Parliament;“candidate” means any person who has been nominated under this Act as a candidate for election as a member of the National Assembly or for election to the office of President;“Commission” means the Electoral Commission established under section 30 of the Constitution;“constituency” means an area delimited as such under section 31 of the Constitution and section 8 (1) (a) and (b) of the Electoral Commission Act;“Council” means the National Consultative Council established by the National Consultative Council Act 1993;“election” means a general election or a by-election;“election representative” means a person appointed by a candidate under section 35 to be the candidate’s representative for purposes of an election;“general election” means an election consequent upon dissolution of Parliament for the election in accordance with this Act of members of the National Assembly and the President;“independent candidate” means a candidate not sponsored by a political party;“irregularity;”, in relation to the conduct of an election, means noncompliance with the requirements of this Act;“National Assembly” means the National Assembly constituted under section 19 of the Constitution;“nomination day” means the day appointed by the Commission for the receipt of nominations of candidates for an election under this Act;“political party” means a political party registered under the Political Parties (Registration and Regulation) Act;[Cap. 2:07]“polling day” means any day appointed by the Commission under section 36 (1) (c) and section 48 (1) (b), for the holding of a poll;“polling station” means a place established as such under section 67;“polling station officer” means a person appointed as such under section 68 (1);“presiding officer” means a polling station officer designated as such under section 68 (2);“Referendum” means the referendum held on 14th June, 1993, under the Constitution (Referendum on Malawi’s Political System) Regulations, 1993;“registration” means the registration of voters;“returning officer” means a returning officer appointed under section 34 (1);[10 of 1998]“the first general election” means the first general election contested by more than one political party following the Referendum;“voter” means a person registered to vote in an election;“voters register” means the register of voters established under section 22;“voters registration certificate” means a certificate issued to a voter under section 24;“voting booth” means a compartment at a polling station for screening a voter from view when he is making his choice or choices in the poll.[10 of 1998]
Part II – The Electoral Commission
4. ***[section 4 repealed by Act No. 10 of 1998]
5. ***[section 5 repealed by Act No. 10 of 1998]
6. ***[section 6 repealed by Act No. 10 of 1998]
7. ***[section 7 repealed by Act No. 10 of 1998]
8. ***[section 8 repealed by Act No. 10 of 1998]
9. ***[section 9 repealed by Act No. 10 of 1998]
10. ***[section 10 repealed by Act No. 10 of 1998]
11. ***[section 11 repealed by Act No. 10 of 1998]
12. ***[section 12 repealed by Act No. 10 of 1998]
13. ***[section 13 repealed by Act No. 10 of 1998]
14. ***[section 14 repealed by Act No. 10 of 1998]
Part III – Registration of voters
15. EligibilityEvery citizen of Malawi residing in Malawi and who, on or before the polling day, shall have attained the age of eighteen years shall be eligible to register as a voter in an election.
16. Right and duty to registerIt shall be the right and the civic duty of every eligible citizen to present himself for registration as a voter and further he shall have the right to verify with the Commission or its officers that he has been registered and to request that any error or omission with respect to his registration be corrected.
17. Duty to promote registrationThe Commission shall, in accordance with this Act, create the necessary conditions and take all necessary actions for promoting awareness among the citizens of Malawi of the need to register as a voter for the purpose of an election and of the need for their full participation in the election.
18. Single registrationA Citizen eligible to register as a voter shall be registered only once.
19. Place of registrationA person shall be registered as a voter in the area where he ordinarily resides or was born or is employed or carries on business.[16 of 1994]
20. Temporary registration officers
21. Registration centres
22. Voters registersVoters registers shall be in the prescribed form and the Commission shall procure sufficient copies thereof for the registration of voters throughout Malawi and for distribution to registration officers at every registration centre and for that purpose may adopt existing voters registers which shall, as necessary, be updated by registration officers with new registrations.
23. Evidence of a person’s eligibility to voteAn eligible person wishing to be registered as a voter in an election shall in person state that he is not registered at any other registration centre and shall present to a registration officer sufficient and cogent proof of his eligibility and may do so by producing—
24. Registration and issue of voters registration certificate
25. Updating of voters registers
26. Initialling of pages in voters rollsIn the case of registration in a new voters register, the registration officer shall initial both sides of every page at a point where registration on the page ends.
27. Monitoring of registration by political parties
28. Rights and duties of representatives of political parties
29. Period for registration of votersThe period for the registration of voters shall be determined by the Commission and notified in the Gazette, being a period of not less than fourteen days expiring not less than twenty-one days before the first polling day.[16 of 1994]
30. Closing of registrationAt the close of registration, every registration officer shall sign off the voters register assigned to him and shall forward it for custody to the Chief Elections Officer or to such other officer as is designated by the Commission for the purpose and shall submit to such officer a summary of the total number of voters registered in the area assigned to him.
31. Voters register open to inspectionA voters register shall be open to inspection, for purposes of verifying the entries therein, by voters, representatives of political parties and international observers, and for this purpose the Commission shall make copies of voters registers and post them for inspection at appropriate public places made known to the public.
Part IV – Holding of a general election and by-elections
Division 1 — General
32. General election and by-election
33. Delay in publication of notice pending appealWhen a member of the National Assembly has been sentenced by a court to death or imprisonment for a term exceeding twelve months, is adjudged or declared by court to be of unsound mind or bankrupt, or has been convicted of any offence prescribed under this Act, it shall not be necessary for the Speaker to give notice that such member’s seat has become vacant until the time for appeal against such decision has expired or, if there is an appeal, until the determination of that appeal.
34. Appointment of returning officers
35. Election representativeEvery candidate may appoint one person to be his election representative and notify in writing the returning officer of the constituency in which he is, or intends to be, a candidate of the name so appointed.
Division 2 — Nomination of Members of the National Assembly
36. Procedure for commencing conduct of elections
37. Nomination of candidates
38. Nomination paper and supporting documents
39. Invalid nominationsWhere a nomination paper is delivered in conformity with this Part and it is not withdrawn, the candidate shall be deemed to stand nominated unless the returning officer is satisfied of the candidate’s death or decides that the nomination paper is invalid on one of the following grounds, but on no other grounds, namely—
40. Rejected nominations
41. No nomination of candidateIf at the end of the period allowed for nomination no candidate has been duly nominated for a constituency, the Commission shall by notice published in the Gazette, extend the period for the receipt by the returning officer of nominations to a date not later than seven days before the polling day.
41A. Publication of names of candidates for election as member of ParliamentAfter receiving nominations of candidates for election as member of Parliament under this Part, the Commission shall, within fourteen days after receiving the nominations, cause to be published in the Gazette and on the radio and in at least two newspapers in general circulation in Malawi the names of all candidates who have been validly nominated for election as member of Parliament in alphabetical order of surnames.[10 of 2013]
42. Procedure for uncontested electionIf at the end of the period allowed for nomination there shall be only one candidate duly nominated in a constituency, the returning officer shall publicly declare that candidate to be elected and shall immediately thereafter inform the Commission of the name of the elected candidate and the constituency for which he has been elected. Such candidates shall thereupon be a member of the National Assembly.
43. Procedure when poll to be held
44. Special provisions with respect to by-elections
45. Deposit on nomination
46. Withdrawal of a candidate
47. Death of a candidate
Division 3 — Nominations for election to the office of President
48. Notice of election to office of President
49. Nomination of candidates for election to office of President
50. Deposit on nomination
51. Publication of names of Presidential candidatesThe Commission shall, within seven days after receiving nominations of candidates for election to the office of the President under this Part, cause to be published in the Gazette and on the radio and in at least two newspapers in general circulation in Malawi the names of all candidates who have been validly nominated for election to the office of the President in alphabetical order of surnames.[10 of 2013]
52. Withdrawal of a candidate
53. No nomination of candidate for election to office of PresidentIf at the end of the period allowed for nomination for election to the office of President no candidate has been duly nominated for election to the office of President, the Commission shall by notice published in the Gazette extend the period for the receipt by the Commission of nominations.
54. When fresh nominations are to be heldWhere—
55. Procedure when poll to be held for election to office of PresidentIf two or more persons have been duly nominated as candidates for election to the office of President, the Commission shall, as soon as practicable after the close of the period for nomination give public notice that a poll is to be taken and such notice shall state—(a)the names of the candidates in alphabetical order of surnames;(b)the day or days and the times on which the poll shall be held as determined by the Commission under section 48 (1) (b); and(c)the location of the polling stations.
Part V – Campaigning
56. Campaigning by political parties
57. Period of campaigningFor the purposes of this Act the period of campaigning in public by every political party under this Part shall be a period of two months closing forty-eight hours before the opening of the poll on the first polling day:Provided that in the case of the first general election such period shall be of any duration closing forty-eight hours before the opening of the poll on the first polling day.
58. Equal treatment of political partiesEvery public officer and public entity or authority shall give and be seen to give equal treatment to all political parties to enable each political party to conduct its campaign freely.
59. Freedom of expression and informationEvery political party and every representative, member or supporter thereof shall enjoy complete and unhindered freedom of expression and information in the exercise of the right to campaign under this Act and no person shall, during or after the period of campaigning, be subjected to any criminal prosecution for any statement he made or any opinion he held or any campaign material he produced, published or possessed while campaigning in the election.
60. Freedom of assemblySubject only to section 56 (2), every political party and any representative, member or supporter thereof shall, either alone or in common with others, enjoy complete and unhindered freedom of peaceful assembly in campaigning in any election.
61. Ethical norms during campaigning
62. Prohibited places for campaigningNo person shall hold a campaign under this act in or within the premises of—
63. News broadcasts and reports
64. Publication of books, pamphlets, etcDuring the campaign period any political party may publish campaign materials in the form of books, booklets, pamphlets, leaflets, magazines or newspapers and shall, in any such publication, specify particulars sufficient to identify the political party.
65. Campaign postersThe District Commissioner shall designate places or spaces in parts of his district on which may be posted or affixed campaign materials of political parties and every political party shall be entitled to equal access to such place or space.
66. Campaign financingEvery political party may, for the purpose of financing its campaign, appeal for and receive voluntary contributions from any individual or any non-governmental organization or other private organization in or outside Malawi.
66A. Campaigning by independent candidatesThe provisions of this Part shall apply, mutatis mutandis, in relation to the campaigning by independent candidates for election to the office of the President and candidates for election as member of Parliament.[10 of 2013]
Part VI – Polling stations
67. Polling Stations
68. Polling station officers
69. Working hours for polling station officersEvery polling station officer shall, on the polling day, report for work at the polling station not later than thirty minutes before the opening time for the casting of votes at that polling station and at any given time of the polling day there shall be a majority of polling station officers attending to their business at the polling station.
70. Work items for polling station officersThe Commission shall ensure, in due time, that polling station officers at every polling station are supplied with all necessary items, namely—
71. Security of work items at polling stationsPresiding officers at polling stations and, in general, the Commission shall be responsible for creating and guaranteeing all necessary and indispensable conditions for the custody, conservation, security and inviolability of the items specified in section 70, including more particularly the ballot papers and ballot boxes.
72. Monitoring of voting by political parties
73. Rights and duties of representatives of political partiesRepresentatives of political parties shall have—
Part VII – The vote and the voting process
74. Characteristic of the vote
75. Place where to cast the vote
76. Ballot papersThe Commission shall arrange for the printing of sufficient quantities of ballot papers—
77. Voting boothsThe Commission shall establish one voting booth or more at each polling station and a voting booth shall be constructed in such a way as to screen a voter from observation when he is selecting ballot papers according to his choice consistent with the doctrine of secret ballot.[10 of 1998]
78. Ballot boxes
79. Right of employees to be released for votingNotwithstanding any provision to the contrary in any contract of employment, all persons in paid employment, including those working by shift, shall have the right to be released for the necessary time to exercise their right to vote.
80. Hours of votingOn the polling day voting shall begin at 6 o’clock in the morning and close at 6 o’clock in the evening, but before voting begins the presiding officer, together with the other polling station officers and representatives of political parties, shall verify that there are no irregularities with the voting booth and the working documents of the polling station officers and, shall, in particular, exhibit in front of all present the ballot box to verify that it is empty after which the ballot box shall be closed and sealed.
81. Order of votingUpon verification in accordance with section 80 that there are no irregularities, the first persons to be allowed to vote shall be the presiding officer, the other polling station officers, representatives of political parties and all officers responsible for ensuring order and security at the polling station after whom all other persons shall vote according to the order of their arrival at the polling station and, to this end, they shall form a line; but subject thereto, the presiding officer shall exercise general powers for keeping order at the polling station and for regulating the number of persons to be admitted to vote at any time and may, if circumstances so require, use his discretion to allow certain persons to vote inconsistently with the order of priority required by this section.
82. Continuity of the voting processSubject to section 83, voting at every polling station shall continue uninterrupted until closed.
83. Adjournment in certain cases
84. Prohibited presence, etc., at polling stations
85. Requirements for exercising the right to voteFor a person to be allowed to vote he must first present to the polling station officers his voters registration certificate and must not yet have exercised his right to vote.
86. Manner of casting the vote
87. Voting by blind and disabled personsA voter who is blind or is affected by disease or other physical disability may vote accompanied by another registered voter of his own choice or, failing such voter, by a polling station officer who shall assist such person in casting his vote and shall act faithfully to the wish expressed by such person and with absolute secrecy regarding the vote cast by such person.
88. Null and void votes
89. Doubts and complaints
Part VIII – Determination of results of the elections
90. Unused ballot papersAt the close of the poll at any polling station, the presiding officer shall proceed by first collecting together and separately all unused ballot papers and placing them in a separate envelope provided to him for the purpose and then sealing the envelope and initialling or stamping it over the sealed area.
91. Classification of votes castFor the purposes of determining the results of the elections at a polling station and, in particular, in counting the votes thereat, the votes cast at a polling station shall be separately classified into—
92. Opening of ballot box and counting of votesAfter the close of the poll at any polling station, and only thereafter, the presiding officer shall, in the presence of other polling station officers and representatives of political parties if any be present, open the ballot box and order the counting of the votes to proceed separately according to a procedure entailing the polling station officers—
93. Record of the polling process
94. Delivery of ballot papers, etc., from polling stationsThe presiding officer of a polling station shall, with all dispatch, deliver to the office of the District Commissioner of his district under conditions of absolute security against loss, tampering or interference—
95. Compilation of the district result of the elections
96. Determination of the national result of a general election
97. Analysis of complaints, etc., prior to determination of the national resultAt the beginning of determining the national result of a general election, the Commission shall take a decision on any matter which has been a subject of a complaint and shall examine the votes which have been classified as null and void and may affirm or correct the determination thereof at the polling stations and at the offices of District Commissioners but without prejudice to the right of appeal conferred under section 114.
98. Records of the national result of a general electionThe Commission shall summarize its determination of the national result of a general election in a written record indicating—
99. Publication of the national resultThe Commission shall publish in the Gazette and by radio broadcast and in at least one issue of a newspaper in general circulation in Malawi the national result of an election within eight days from the last polling day and not later than forty-eight hours from the conclusion of the determination thereof and shall, in such publication, specify—
Part IX – Election petition in respect of election as member of the National Assembly or to office of President
100. Election petition in respect of election as member of the National Assembly or to office of President
Part X – International observation
101. Meaning of international observationFor the purposes of this Act, international observation means the verification of the various stages of the election by international organizations, non-governmental organizations, foreign governments and foreign personalities duly recognized for the purpose in accordance with this Part.
102. Scope of international observationInternational observation shall consist of the following activities—(a)to verify and monitor the impartiality and the functioning of the Commission and its officers in conformity with this Act;(b)to verify and monitor the impartiality and legality of the decisions taken by the Commission and its officers in settling disputes;(c)to verify and monitor the registration of voters;(d)to observe the course of the campaigning for elections;(e)to verify and monitor the voting process;(f)to verify and monitor the determination of the results of the elections at all stages of determination;(g)to observe access to and the use of the media.
103. Beginning and end of international observationInternational observation shall begin with the appointment of the Commission and end with the determination of the national result of the election or the settlement thereafter of all election disputes.
104. Collaboration by competent authoritiesIt shall be the duty of the Commission, every officer thereof and every competent public officer or other competent authority in Malawi to co-operate with international observers in their role and to offer to them the guarantees and other facilities necessary to fulfil their role.
105. Invitation to international observersThe Commission may send invitations for international observation and may do so on its own initiative or on request by a political party or by any government, organization or person competent under this Act to undertake international observation.
106. Categories of observers
107. Recognition and identification of international observersRecognition of international observers on arrival in Malawi shall be granted by the Commission which, for that purpose, shall—
108. Compulsory use of identity cards and the common badgeEvery international observer recognized under this Act shall, while exercising his functions, use the identity card and the badge issued to him.
109. Rights of international observersInternational observers shall, in Malawi, have the right—
110. Obligations of international observers
111. Position of diplomatsDiplomats accredited to Malawi who are designated and recognized as international observers under this Act shall exercise their functions as such international observers without prejudice to their status and positions as such diplomats.
112. Separate and joint operation of international observersInternational observers may operate separately or jointly with other international observers of the same or different categories.
Part XI – Complaints and appeals
113. Commission to decide on complaintsSave as otherwise provided in this Act, any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and where the irregularity is confirmed the Commission shall take necessary action to correct the irregularity and the effects thereof.
114. Appeals to the High Court
Part XII – Offences and penalty
115. OffencesA person who—
116. Maintenance of secrecy
117. Offences under this Act cognizable offencesEvery offence under this Act shall be a cognizable offence within the meaning of the Criminal Procedure and Evidence Code.[Cap 8:01]
118. General penalty
Part XIII – General
119. Preservation of the election documentsAt the end of its functions, the Commission shall deposit all documents forming the official record of an election (including voters registers, ballot papers, records from districts and polling stations and summaries thereof and the record and summary of the national result) with the Clerk of Parliament who shall retain and preserve such documents in safe and secure custody without destruction for a period of twelve months.
120. Failure to elect a member of the National AssemblyIf after the holding of a general election no person has been elected in one or more constituencies, a session of the National Assembly may commence notwithstanding any such vacancy.
121. RegulationsThe Minister may, on the recommendation of the Commission make regulations for the better carrying out of the provisions of this Act.[10 of 1998]
Part XIV – Repeals and savings
122. RepealsThe Presidential Elections Act, the Parliamentary Elections Act and the Registration of Voters Act are hereby repealed.[Cap. 2:01; Cap. 2:02; Cap. 2:03]
123. SavingsA person who at the commencement of this Act is a member of the National Assembly shall continue as such member until dissolution of Parliament next following the Referendum.
History of this document
03 November 2020 this version
31 December 1993