Malawi Case Law

Kabambe v Nyasulu & The Director of Public Prosecutions

Kabambe v Nyasulu & The Director of Public Prosecutions (Judicial Review 2 of 2025) [2025] MWHC 12 (28 April 2025)

Court

High Court of Malawi

Case number

Judicial Review 2 of 2025

The claimant failed to demonstrate an arguable case fit for judicial review. The exercise of prosecutorial discretion by the DPP is reviewable only in exceptional circumstances, and the claimant did not exhaust the constitutional accountability mechanism via the Legal Affairs Committee of Parliament. The application is premature and misconceived, and the criminal process provides adequate remedies.

Source excerpt

• Prosecutorial discretion
• Judicial review
• Selective prosecution
• Separation of powers
• Right to equality
• Abuse of process

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S(On application by Hon. Shadrick Namalomba M.P) v Leader of opposition( Hon. Kondwani Nakhumwa M.P ), Speaker of the National Assembly and Democratic Progress Party

S(On application by Hon. Shadrick Namalomba M.P) v Leader of opposition( Hon. Kondwani Nakhumwa M.P ), Speaker of the National Assembly and Democratic Progress Party (Judicial Review Cause 5 of 2022) [2022] MWHC 72 (16 June 2022)

Court

High Court of Malawi

Case number

Judicial Review Cause 5 of 2022

The court held that the issues raised by the claimant are political in nature, concern internal parliamentary and intra-party matters, and are not justiciable. The court lacks competence to adjudicate such disputes, which should be resolved through internal party mechanisms and parliamentary procedures. The claimant failed to exhaust alternative remedies and suppressed material facts. The interim orders and permission for judicial review were improperly granted and must be set aside.

Source excerpt

• Parliamentary privilege
• Justiciability
• Separation of powers
• Judicial review
• Internal party disputes

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State obo HRDC & Ors. v President of Malawi & Ors.

State obo HRDC & Ors. v President of Malawi & Ors. (Judicial Review 33 of 2020) [2020] MWHC 26 (27 August 2020)

Court

High Court of Malawi

Case number

Judicial Review 33 of 2020

The High Court of Malawi held that the executive had no legal basis to compel the Chief Justice and a Justice of Appeal to take leave pending retirement.

• Judicial independence
• Separation of powers
• Leave pending retirement
• Security of tenure
• Ultra vires acts
• Rule of law

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Gwanda v State

Gwanda v State (Constitutional Case 5 of 2015) [2017] MWHC 953 (10 January 2017)

Court

High Court of Malawi

Case number

Constitutional Case 5 of 2015

Section 184(1)(c) of the Penal Code is unconstitutional because it is vague, overly broad, and enables arbitrary and discriminatory enforcement, violating the Applicant's rights to dignity, equality, liberty, privacy, and movement under the Constitution. The limitation imposed by the section is not reasonable, necessary, or justifiable in an open and democratic society, and cannot be saved by severance or reading-in. The provision is declared null and void.

Source excerpt

• Vagrancy laws
• Void for vagueness
• Equality and non-discrimination
• Right to liberty
• Due process
• Presumption of innocence

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R v Minister of Justice & Constitutional Affairs & Ors.|Ex-parte Kammasamba & Ors. (None)

R v Minister of Justice & Constitutional Affairs & Ors.|Ex-parte Kammasamba & Ors. (None) [2016] MWHC 503 (10 May 2016)

Court

High Court of Malawi

The High Court sustained an injunction against a government moratorium on enforcing gay-offence laws, struck off two applicants, admitted amici, and referred constitutional issues.

• Separation of powers
• Prosecutorial discretion
• Moratorium on laws
• Equality before the law
• Non-discrimination
• Separation-of-powers

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S v Director of Public Prosecutions (Misc. Civil Cause 16 of 2016)

S v Director of Public Prosecutions (Misc. Civil Cause 16 of 2016) [2016] MWHC 658 (25 April 2016)

Court

High Court of Malawi

Case number

Misc. Civil Cause 16 of 2016

The matter raises substantial constitutional questions regarding the reviewability of the DPP's prosecutorial discretion, the scope of judicial review, and alleged violations of constitutional rights. These issues must be determined by a panel of at least three High Court Judges as required by Section 9(2) of the Courts Act. Proceedings are stayed pending certification by the Chief Justice.

Source excerpt

• Prosecutorial discretion
• Access to information
• Access to justice
• Separation of powers
• Human rights
• Procedural fairness

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R v State President & Anor. (None)

R v State President & Anor. (None) [2015] MWHC 439 (11 January 2015)

Court

High Court of Malawi

The High Court held that the President could choose from the recommended shortlist for Clerk of Parliament and dismissed judicial review.

• Judicial review
• Appointment of public officers
• Separation of powers
• Discretionary powers
• Gender equality
• Judicial-review

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State v President of the Republic of Malawi & Ors.; Exparte: Malawi Law Society (6 of 2006)

State v President of the Republic of Malawi & Ors.; Exparte: Malawi Law Society (6 of 2006) [2007] MWSC 7 (8 February 2007)

Court

Malawi Supreme Court of Appeal

Case number

6 of 2006

The National Assembly has the constitutional mandate to determine the terms and conditions of service for judicial officers under section 114(1) of the Constitution. Once such determination is made, the Executive is duty bound to implement it. The courts have no mandate to question the internal procedures of the National Assembly unless the Constitution provides otherwise. The Executive’s refusal to implement the determination is a breach of the Constitution.

Source excerpt

• Judicial independence
• Separation of powers
• Parliamentary privilege
• Judicial remuneration
• Interpretation of constitutional provisions

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Mpinganjira (B) & Ors. v Speaker & Anor.

Mpinganjira (B) & Ors. v Speaker & Anor. (Civil Cause 3140 of 2001) [2001] MWHC 51 (26 November 2001)

Court

High Court of Malawi

Case number

Civil Cause 3140 of 2001

Judicial Review proceedings are not legal suits within the meaning of the Civil Procedure (Suits by or Against Government or Public Officers) Act, and thus the statutory bar on injunctions does not apply. The Constitution mandates courts to provide effective remedies for threatened rights, including interim injunctions. The applicants have shown a serious issue to be tried, damages would not be an adequate remedy, and the balance of convenience favours maintaining the injunction to preserve the status quo pending the substantive hearing. There was no deliberate non-disclosure justifying disch…

Source excerpt

• Judicial review
• Interlocutory injunctions
• Parliamentary privilege
• Separation of powers
• Fundamental rights
• Interpretation of statutes

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Nseula v Attorney General & Anor.

Nseula v Attorney General & Anor. (Civil Cause 63 of 1996) [1997] MWHC 26 (30 September 1997)

Court

High Court of Malawi

Case number

Civil Cause 63 of 1996

The High Court considered whether a parliamentary seat became vacant after the petitioner crossed the floor or assumed a ministerial office, and dismissed the petition.

• Vacancy of parliamentary seat
• Floor crossing
• Public office definition
• Separation of powers
• Constitutional-law
• Parliamentary-law

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