(Dec. 9, 2009) On December 2, 2008, the Malawi National Assembly passed a police bill that empowers the police to conduct searches without warrants, as long as they make a “recording of the exercise.” (MISA, Malawi Communiqué: Parliament Passes Police Bill Amid Protests from Opposition MPs, and Civil Society, THE ZIMBABWEAN, Dec. 7, 2009, available at http://www.thezimbabwean.co.uk/2009120727292/africa/malawi-communique-pa
The Constitution of Malawi guarantees the right to privacy. According to the Constitution:
Every person shall have the right to personal privacy, which shall include the right not to be subject to –
a. searches of his or her person, home or property;
b. the seizure of private possessions; or
c. interference with private communications, including mail and all forms of telecommunications. (Constitution of the Republic of Malawi, § 21, Malawi SDNP [Sustainable Development Networking Programme] website, http://www.sdnp.org.mw/constitut/dtlindx.html (last visited Dec. 8, 2009.)
The Constitution, however, appears to allow limitations to be placed on this right in circumstances other than national emergencies. It provides that limitations on the right to privacy may be imposed as long as they are “prescribed by law … [and] are reasonable, recognized by international human rights standards and necessary in an open and democratic society,” and as long as the laws prescribing them do not “negate the essential content of the right or freedom in question [and are] of general application.” (Id. § 44, items 2 & 3.) It is not yet clear whether the new law passes this Constitutional test.
According to Malawi law, the President has 21 days to give his assent to the law before it can enter into force. If the President decides to withhold his assent, he will return the bill to the Speaker of the National Assembly with the reasons for that withholding. If the bill is passed by a majority vote of the National Assembly for a second time, after 21 days from the day on which the President notified the Speaker of his decision to withhold his assent but within thee months from that date, the President is required by law to give his assent. (Id. §73.)