Stallichi Mwambiwa — MW Legal Update

A recent decision by the Lilongwe District Commissioner (DC), Stallichi Mwambiwa, to halt an anti-xenophobia protest organised by the Human Rights Consultative Committee (HRCC) in Malawi's capital city has ignited critical legal discourse. The protest, intended to raise awareness about anti-immigrant attacks in South Africa affecting Malawians, was stopped despite the constitutional guarantee of freedom of assembly. This incident highlights the persistent tension between fundamental human rights, particularly the right to peaceful demonstration enshrined in Section 38 of the Malawian Constitution, and the state's prerogative to maintain public order. The DC's action necessitates a close examination of the legal framework governing public gatherings in Malawi, including the Police Act, and the scope of administrative powers in limiting constitutional freedoms, especially in light of judicial precedents that affirm the notification, rather than permission, principle for protests.

The recent intervention by the Lilongwe District Commissioner (DC), Stallichi Mwambiwa, to prevent the Human Rights Consultative Committee (HRCC) from holding an anti-xenophobia protest in the capital city has brought to the fore critical questions concerning the exercise of fundamental rights and the limits of administrative authority in Malawi. The HRCC, a prominent coalition of civil society organisations, had planned to march to the South African High Commission to protest anti-immigrant attacks in South Africa that have displaced thousands, including Malawian nationals. This administrative directive to stop a planned demonstration, as reported, immediately raises concerns about the constitutional right to freedom of assembly and expression.

This incident is not isolated but rather reflects an ongoing dynamic in Malawi where the right to protest, while constitutionally guaranteed, often encounters restrictions from state authorities. The legal implications of the DC's decision extend beyond the immediate event, touching upon the interpretation of the Public Order Act (primarily the Police Act in this context), the powers vested in District Commissioners, and the broader principles of administrative justice. For legal practitioners, understanding the nuances of such interventions is crucial for advising civil society organisations and individuals seeking to exercise their democratic rights, as well as for challenging potentially unlawful administrative actions.

This article will delve into the legal framework underpinning freedom of assembly in Malawi, analyse the potential legal grounds for the DC's decision, and discuss the avenues available for challenging such administrative actions, drawing on relevant constitutional provisions and judicial pronouncements to provide a comprehensive overview for legal professionals.

Malawi's constitutional democracy, established in 1994, enshrines a robust Bill of Rights, central to which is the right to freedom of assembly. Section 38 of the Constitution explicitly states that "Every person shall have the right to assemble and demonstrate with others peacefully and unarmed." This fundamental right, however, is not absolute and, like many constitutional rights, is subject to limitations "prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society," as stipulated in Section 44 of the Constitution.

The primary legislation governing public gatherings and maintaining public order in Malawi is the Police Act. Section 96 of the Police Act requires organisers of assemblies to provide authorities with at least 48 hours' notice. Historically, this notification requirement has often been misinterpreted by authorities as a need for permission, leading to instances where protests are 'denied' or 'stopped' rather than merely acknowledged. The role of a District Commissioner, as the chief executive of a district and a senior civil servant appointed by the President, involves coordinating with the police for the maintenance of law and order within their jurisdiction. While DCs are central to district administration, their powers in relation to public assemblies must operate strictly within the confines of the Constitution and relevant statutes, without abridging fundamental rights.

The Human Rights Consultative Committee (HRCC) itself is a well-established network of approximately 90 Malawian civil society organisations, including legal associations and advocacy groups, dedicated to human rights monitoring and advocacy. The HRCC has a history of organising significant protests in Malawi, advocating for various human rights and governance issues, and has previously faced government attempts to restrict its activities.

The DC's decision to stop the HRCC protest must be scrutinised against the backdrop of Malawi's constitutional and statutory framework. The core legal tension lies between the constitutional right to peaceful assembly and the state's interest in maintaining public order. While Section 38 of the Constitution guarantees the right to assemble, Section 44 allows for restrictions, provided they are prescribed by law, reasonable, and necessary in a democratic society. The Police Act, particularly Section 96, mandates a 48-hour notice for planned assemblies. However, crucial judicial interpretation has clarified that this is a notification requirement, not a permission requirement.

In the landmark case of *Malawi Law Society and others v State and others* (2002), the court unequivocally held that there is no legal requirement for the police to grant permission for assemblies; rather, citizens need only give notice. The court further clarified that presidential directives, or by extension, administrative directives from officials like a District Commissioner, do not amount to law for the purpose of restricting constitutional rights. This precedent is vital, suggesting that a DC's unilateral decision to 'stop' a protest, without a clear legal basis rooted in a valid statutory restriction, could be deemed unconstitutional and an unlawful abridgement of rights. Grounds for lawful restriction typically relate to national security, public safety, public order, public health or morals, or the protection of the rights and freedoms of others, and must be proportionate.

For a District Commissioner to lawfully stop a protest, their action would need to be based on specific provisions within the Police Act or other relevant legislation that empower them to do so under defined circumstances, such as an imminent threat to public safety or a failure to meet statutory notification requirements. Even then, such a decision would be subject to administrative law principles, including legality, rationality, and procedural fairness. The absence of a clear, publicly stated legal basis for the DC's action, beyond merely 'stopping' the protest, raises questions about procedural propriety and whether the decision was within the ambit of their lawful authority.

Furthermore, the Malawi Police Service itself has recently launched revised Public Order Management Policy and Operational Guidelines (3rd Edition) in April 2025, which aim to ensure consistency with international standards and best practices in policing assemblies and demonstrations, placing human rights and professionalism at the heart of law enforcement. This policy framework underscores the importance of facilitating, rather than arbitrarily restricting, peaceful assemblies. Any administrative action that runs contrary to these guidelines and established legal principles could be challenged through judicial review, where courts examine the process of decision-making to ascertain compliance with the law.

The Lilongwe District Commissioner's decision to halt the HRCC's anti-xenophobia protest serves as a stark reminder of the ongoing challenges in balancing constitutional rights with administrative control in Malawi. While the state has a legitimate interest in maintaining public order, any restriction on the fundamental right to peaceful assembly, as guaranteed by Section 38 of the Constitution, must be strictly prescribed by law, reasonable, and necessary in a democratic society. The precedent set in *Malawi Law Society and others v State and others* firmly establishes that notification, not permission, is the legal requirement for protests, rendering arbitrary administrative prohibitions unlawful.

For legal practitioners, this incident highlights the imperative of understanding the precise scope of administrative powers and the robust avenues for judicial review available to challenge decisions that infringe upon constitutional freedoms. Civil society organisations and individuals must be advised on their rights and the procedural steps for lawful assembly, as well as the mechanisms for seeking redress when those rights are violated. Moving forward, continued vigilance and engagement with the courts will be essential to ensure that administrative actions align with Malawi's constitutional commitments and evolving public order management policies, thereby safeguarding democratic space and the rule of law.