Advice for the Malawi Law Society on the Constitutionality of a Secret International Security Treaty

To: The Malawi Law Society From: Legal Advisor Date: 24 May 2024 Re: Legality of a Secret International Security Treaty

Introduction

This advice addresses the constitutional questions arising from the Government of Malawi's conclusion of a secret international security treaty. The key issues are the extent of the Executive's treaty-making powers, the legality of entering into such an agreement without parliamentary consultation or notification, and whether national security concerns can justify a departure from constitutional processes. This analysis is based on the constitutional framework of the Republic of Malawi. The central argument of this advice is that the Executive's actions appear to be a clear violation of the express provisions of the Constitution of the Republic of Malawi, 1994, and that the appeal to national security does not permit the Executive to bypass these fundamental constitutional requirements.

The Constitutional Framework for Treaty-Making in Malawi

The foundation of Malawi's legal order is the principle of constitutional supremacy. Section 5 of the Constitution states that any act of Government or any law that is inconsistent with the provisions of the Constitution shall, to the extent of such inconsistency, be invalid. This establishes the Constitution as the ultimate source of legal authority, to which all branches of government, including the Executive, are subject. The Constitution also establishes a separation of powers between the Legislature, the Executive, and the Judiciary to ensure a system of checks and balances (Sections 7-9).

The President, as the head of the Executive branch, is vested with significant powers under Section 88 of the Constitution. These powers traditionally include the conduct of foreign relations and the negotiation of international agreements. However, these powers are not absolute and must be exercised within the constraints imposed by the Constitution.

The most critical provision in this context is Section 211 of the Constitution, which governs "International Agreements". This section provides a clear, multi-layered procedure for how Malawi enters into binding international obligations:

1. Ratification by Parliament: Section 211(1) states that "Any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement." This implies that for a significant treaty to become legally binding and part of domestic law, it must be approved through a legislative act passed by the National Assembly.
2. Agreements Not Requiring Ratification: Section 211(2) acknowledges that some agreements (of a "technical, administrative or executive nature") might not require full ratification. However, the power to create this exception is explicitly granted to Parliament, not the Executive. The section specifies that such agreements "may be concluded by the President and shall not require ratification provided that an Act of Parliament so provides." This means Parliament must first pass a law that delegates this specific power to the President for certain categories of agreements.
3. Parliamentary Oversight: Crucially, Section 211(3) establishes a fundamental principle of transparency and accountability. It mandates that "Every international agreement that has been concluded shall be laid before Parliament for debate by the members of Parliament". This duty is unqualified; it applies to "Every international agreement," regardless of whether it requires ratification under subsection (1) or falls under a potential exemption in subsection (2).

Therefore, the Executive's argument that treaty-making falls "exclusively within executive authority" is a misstatement of Malawian constitutional law. While the Executive negotiates treaties, the Constitution reserves the ultimate power of ratification and oversight for the National Assembly.

The Legality of the Secret Security Treaty

Applying the constitutional framework to the facts presented, the secret security treaty appears to be unlawful on several grounds. The primary issue is the complete circumvention of the role of Parliament.

The facts state that Parliament was "neither consulted nor informed." This represents a direct and unambiguous breach of Section 211(3) of the Constitution. The requirement to lay every concluded agreement before Parliament "for debate" is a core accountability mechanism. Its purpose is to ensure that the people's elected representatives are aware of the international obligations the state is undertaking and can scrutinise the Executive's actions. Secrecy is fundamentally incompatible with this constitutional command.

Furthermore, an agreement permitting foreign military operatives to conduct surveillance within Malawi cannot plausibly be classified as a minor "technical, administrative or executive" agreement as might be envisaged under Section 211(2). Such a treaty has profound implications for national sovereignty, security, and the fundamental rights of citizens, including the right to privacy (Section 21). As such, it would almost certainly be considered an agreement requiring ratification by an Act of Parliament under Section 211(1). By failing to seek parliamentary ratification, the Executive has not only breached procedural requirements but has also failed to create an instrument that is legally binding on the Republic of Malawi.

National Security and Constitutional Accountability

The Executive's argument that disclosure would "jeopardize national security" is a serious claim, but it does not provide a constitutional basis for ignoring the law. The Malawian Constitution does not contain a clause that allows the Executive to suspend clear constitutional provisions on the grounds of national security. The principle of legality, which is central to the rule of law (Section 45(6)), dictates that the Executive must have a legal basis for its actions.

While the Constitution recognises the importance of security (Section 16), it places this within a framework of democratic principles and human rights. The Malawian High Court has affirmed its role in upholding the Constitution even in times of crisis. In the notable case of Malawi Law Society & Others v The President of Malawi & Others [2020] MWHC 15 (the 'Lockdown Case'), the court scrutinised the government's response to the COVID-19 pandemic. It held that even with the goal of protecting public health, executive actions must be based on clear law and respect constitutional limits. The court stated that the state of emergency or disaster does not give the Executive "a blank cheque" (Kapindu, J).

Drawing an analogy from this case, a national security concern does not give the Executive a "blank cheque" to disregard the plain text of Section 211. If the existing constitutional framework is deemed inadequate for dealing with sensitive security agreements, the constitutionally correct path is to seek to amend the law through Parliament, not to act in violation of it. To accept the Executive's argument would be to create a dangerous precedent where any action could be justified by an unsubstantiated claim of national security, effectively undermining constitutional governance.

Conclusion and Advice

The Government of Malawi has acted in a manner that is inconsistent with the Constitution. The conclusion of a secret international treaty without informing or consulting Parliament is a clear violation of the oversight and accountability mechanisms enshrined in Section 211.

The advice to the concerned parties is as follows:

1. The Treaty is Unconstitutional: The treaty was concluded in violation of the procedures set out in Section 211 of the Constitution and is therefore unconstitutional and invalid. It cannot be considered legally binding on the Republic of Malawi.
2. Executive Overreach: The Executive's claim to exclusive authority in treaty-making is incorrect. Malawian constitutional law establishes a partnership between the Executive and Parliament in this domain.
3. National Security is Not an Exception: The appeal to national security cannot be used as a shield to justify actions that are contrary to the supreme law of the land. The Executive remains bound by the Constitution at all times.
4. Legal Challenge: The citizens challenging the treaty have very strong grounds. A constitutional challenge before the High Court seeking a declaration that the treaty is invalid and that the Executive acted unlawfully is likely to succeed. The jurisprudence of the Malawian courts, particularly in upholding constitutional supremacy against executive action, provides confidence in this course of action.

The Malawi Law Society would be acting firmly within its mandate to protect the rule of law by supporting or initiating a legal challenge to this unconstitutional act.

References

• Constitution of the Republic of Malawi, 1994.
• Kanyongolo, F.E. (2008) Malawi: Justice and Political-Economic Governance. In: C.M. Fombad, ed., The Rule of Law, Human Rights and Development: The Case of the SADC Region. Pretoria University Law Press.
• Malawi Law Society, Human Rights Defenders Coalition, Association of Magistrates in Malawi and The Attorney General [2020] MWHC 15 (Constitutional Case No. 15 of 2020) (The 'Lockdown Case').