**MEMORANDUM**
**TO:** The Cabinet of Malawi
**FROM:** Intern, Attorney General’s Chambers
**DATE:** 10 October 2026
**SUBJECT:** Critical Analysis of the Legality of the Speaker’s Decision to Appoint Twelve Investigative Committees
This memorandum provides a critical analysis of the legality of the decision made by the Speaker of the National Assembly on 2nd September 2026 to establish twelve investigative committees. This analysis is intended to guide Cabinet on the key legal issues arising from the court challenge against the Speaker.
1. The Source of Power to Establish Committees and the Nature of the Speaker’s Action
**A. Constitutional Source of Power to Establish Parliamentary Committees**
The primary source of power to establish parliamentary committees is the Constitution of the Republic of Malawi, 1994. Several sections are relevant here. Section 56(6) of the Constitution grants Parliament the broad power to “conduct investigations and exercise oversight functions” over the executive. The mechanism for exercising this power is detailed in section 60.
Section 60(1) is particularly clear on this matter. It states that the “National Assembly shall appoint” standing committees and “may appoint” other committees as it deems necessary. The wording here is crucial: the power is vested in the “National Assembly” as a collective body, not in the Speaker as an individual.
The role of the Speaker is defined in section 53 of the Constitution. The Speaker is the presiding officer of the National Assembly, responsible for managing its proceedings. This role is procedural and administrative, not a source of substantive power to act on behalf of the entire Assembly. The Speaker’s authority is derived from the Assembly, not superior to it. While the Speaker implements the decisions of the Assembly, they cannot unilaterally exercise powers that the Constitution confers upon the Assembly as a whole. Therefore, the argument that the Speaker, acting alone, has no constitutional authority to establish these committees appears to be strong. The power rests with the members of the National Assembly, acting collectively, likely through a resolution passed in accordance with its Standing Orders (as per section 66).
**B. The Characterisation of the Speaker’s Decision**
The Speaker’s decision to establish the twelve committees can be characterised as a combination of a purported constitutional exercise of power and an administrative action. It is not simply an ‘internal proceeding’ of Parliament.
This classification is vital for the purposes of judicial review. If the action were purely a ‘parliamentary proceeding’—such as words spoken in a debate—it would likely be protected by parliamentary privilege and considered non-justiciable. However, the Speaker’s decision has external effects: it establishes bodies with coercive powers to summon citizens and require documents, directly affecting the rights and obligations of individuals.
When a public official, even a high constitutional officer like the Speaker, exercises a power that affects the public, that action takes on an administrative character. It becomes subject to the principles of administrative law, which require actions to be lawful, rational, and procedurally fair. The courts in Malawi have affirmed their role as guardians of the Constitution, which is the supreme law (s.5). They can, therefore, review an exercise of public power to ensure it is consistent with the Constitution, even if that power is exercised by Parliament or its officers. The argument that the decision is an administrative action subject to judicial review is likely to succeed.
2. Separation of Powers, Parliamentary Privilege and Justiciability
The Speaker’s argument that courts should not interfere with the internal affairs of Parliament invokes the principles of parliamentary privilege and separation of powers. However, these principles are not absolute and do not create a ‘no-go’ area for the judiciary.
The doctrine of separation of powers ensures that each branch of government operates within its constitutional sphere. While Parliament has autonomy over its internal proceedings, the judiciary, under section 9 of the Constitution, is vested with the responsibility of interpreting, protecting, and enforcing the Constitution. This includes ensuring that the other branches act within their constitutional boundaries. The Malawian courts have previously shown a willingness to review parliamentary actions for constitutionality, for example in cases concerning section 65 of the Constitution (*Attorney General v The Speaker of the National Assembly and Others* (the “Section 65 case”)).
Parliamentary privilege, which is further detailed in the Parliamentary (Powers and Privileges) Act, protects the core functions of Parliament, such as freedom of speech in debates, to ensure it can perform its duties without fear of external pressure. It cannot, however, be used as a shield to legitimise unconstitutional or unlawful actions. If the Speaker’s decision was made without legal authority (*ultra vires*), it is not a “proceeding in Parliament” in the proper sense. It is an exercise of public power that falls outside the scope of privilege. The court’s role is not to interfere with the legitimate business of Parliament, but to determine the legal limits of parliamentary power and privilege. The applicants’ contention that privilege cannot shield an unconstitutional act is well-founded in established principles of constitutionalism and the rule of law.
3. Legal Limits on the Power to Establish Committees
Even if it were found that the Speaker had some power to facilitate the creation of committees, the exercise of that power is subject to strict legal limits. The challengers have raised several valid points concerning the breach of these limits.
* **Ultra Vires:** The primary issue is one of *ultra vires* (acting beyond one’s powers). As argued above, the Constitution confers the power on the National Assembly, not the Speaker. Any action taken by the Speaker alone is therefore likely void for lack of jurisdiction.
* **Compliance with Standing Orders:** Parliamentary committees must be established and must operate in accordance with the National Assembly’s Standing Orders, which are made under the authority of section 66 of the Constitution. The Speaker’s unilateral action likely bypassed the procedures set out in these rules.
* **Statutory Limitations:** The committees are reportedly investigating matters that fall within the mandate of other constitutional and statutory bodies like the Ombudsman and the Anti-Corruption Bureau. While parliamentary oversight is broad, it cannot unlawfully usurp the specific functions given to independent bodies by the Constitution or other laws. This could render the committees’ mandates unlawful.
* **Procedural Fairness:** The exercise of public power, especially coercive power, must be procedurally fair. The failure to inform individuals of the allegations against them or to provide a reasonable opportunity to respond is a clear breach of the rules of natural justice. Furthermore, appointing members who have already expressed biased views on the matters under investigation violates the rule against bias (*nemo iudex in causa sua*), which is a fundamental principle of justice.
* **Rationality and Proper Purpose:** The Speaker’s decision must be rational and for a proper purpose. The failure to disclose the criteria for establishing twelve committees or the reasons for specific allocations suggests a lack of transparency that could support an argument of irrationality or that the power was exercised for an improper political purpose, rather than for the genuine purpose of public accountability.
4. Parliamentary Accountability as an Exercise of Public Power
The proposition that “Parliamentary accountability is itself an exercise of public power and therefore cannot be allowed to become a source of unaccountable public power” is a cornerstone of modern constitutional democracy and is entirely correct.
Parliament’s oversight function is a vital check on the executive branch, forming a key part of the chain of public accountability. However, Parliament itself is a body created by and subject to the Constitution. The principle of constitutional supremacy, enshrined in section 5 of the Malawian Constitution, means that no institution, including Parliament, is above the law.
If Parliament’s power of accountability were itself unaccountable, it would undermine the very rule of law it is meant to uphold. This would create a dangerous imbalance in the separation of powers, allowing the legislative branch to exercise power without legal limit, potentially infringing on the rights of citizens and the functions of other state organs.
Judicial review serves as the ultimate constitutional safeguard. It ensures that when Parliament exercises its power of oversight, it does so within the boundaries of the Constitution and the law (the principle of legality). Parliamentary privilege is a functional necessity, not a tool for arbitrary action. The courts’ role in reviewing the Speaker’s decision is not to undermine parliamentary accountability but to ensure that it is exercised accountably. By holding all exercises of public power, including those of Parliament, to the standards of lawfulness, rationality, and fairness, the judiciary upholds the rule of law and reinforces the ultimate sovereignty of the Constitution. The current case is a clear example of why such judicial oversight is necessary.
References
Constitution of the Republic of Malawi, 1994.
Wade, H.W.R. and Forsyth, C.F. (2014) *Administrative Law*. 11th edn. Oxford: Oxford University Press.
*This memorandum is based on general principles of Malawian constitutional and administrative law. Specific case law may further refine this analysis, and a search for relevant precedents from the High Court and Supreme Court of Appeal of Malawi is recommended. The case known as the “Section 65 case” (Attorney General v The Speaker of the National Assembly and Others) is particularly relevant to the relationship between the courts and Parliament.*
