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The Handbook of Reparations$

Pablo de Greiff

Print publication date: 2006

Print ISBN-13: 9780199291922

Published to Oxford Scholarship Online: May 2006

DOI: 10.1093/0199291926.001.0001

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MALAWI

MALAWI

Chapter:
(p.821) MALAWI
Source:
The Handbook of Reparations
Author(s):
Pablo de Greiff
Publisher:
Oxford University Press

Constitution of the Republic of Malawi

Chapter 13National Compensation Tribunal

The National Compensation Tribunal

  1. 137. There shall be a National Compensation Tribunal which shall entertain claims with respect to alleged criminal and civil liability of the Government of Malawi which was in power before the appointed day and which shall have such powers and functions as are conferred on it by this Constitution and an Act of Parliament.

    Exclusive original jurisdiction

  2. 138.

    • (1) No person shall institute proceedings against any Government in power after the commencement of this Constitution in respect of any alleged criminal or civil liability of the Government of Malawi in power before the commencement of this Constitution arising from abuse of power or office, save by application to the National Compensation Tribunal, which shall hear cases initiated by persons with sufficient interest.

    • (p.822)
    • (2) The National Compensation Tribunal shall have all powers of investigation necessary to establish the facts of any case before it.

    • (3) Notwithstanding subsection (1), the National Compensation Tribunal shall have the power to remit a case or a question of law for determination by the ordinary courts where the National Compensation Tribunal is satisfied that the Tribunal does not have jurisdiction, or where the Tribunal feels it is in the interest of justice so to do.

    Composition

  3. 139.

    • (1) There shall be a Chairman of the National Compensation Tribunal who shall be a judge and who shall

      • (a) be appointed in that behalf by the Chief Justice on the nomination of the Judicial Service Commission; and

      • (b) hold the office of Chairman of the National Compensation Tribunal for not more than three years or until such time as that person ceases to be a judge whichever is sooner.

    • (2) The Chairman of the National Compensation Tribunal shall be assisted by such additional members and by such assessors and other experts as may be appointed in accordance with the provisions of an Act of Parliament.

    Procedure

  4. 140.

    • (1) The rules of procedure of the National Compensation Tribunal and other matters of policy or principle concerning its powers and functions shall be prescribed by or under an Act of Parliament and shall be such as shall ensure expeditious disposal of cases, which may include an informal preliminary arbitration procedure.

    • (2) Notwithstanding subsection (1), the procedures of the National Compensation Tribunal shall

      • (a) conform to the standards of proof required for a normal civil court unless the National Compensation Tribunal otherwise determines in the interest of justice in any particular case or class of cases; and

      • (b) conform with the standards of justice set out in this Constitution and the principles of natural justice.

    Protection of third party rights

  5. 141. Where a third party disputes a claim and has an interest in money or property that is the subject of a claim before the National Compensation Tribunal

      • (a) that party shall be given adequate notification;

      • (b) that party shall be entitled to legal representation; and

      • (c) if the Chairman of the National Compensation Tribunal is satisfied that the person is of insufficient means to retain legal counsel, legal assistance shall be provided at the expense of the State.

    (p.823)

    Jurisdiction of ordinary courts

  6. 142.

    • (1) The High Court shall not be excluded from hearing applications for judicial review of the decisions of the Tribunal nor shall a determination by the Tribunal be a bar to further criminal or civil proceedings in an appropriate court against a private person for the duration of the existence of the fund.

    • (2) A ‘private person’ for the purposes of this section means a person who was before the commencement of this Constitution a member of the Government or of an agent of the Government, who would, under the laws then in force, have been personally liable for an act that is the subject of the criminal or civil proceedings.

    Power to waive statutory limitations

  7. 143. For the purposes of pursuing claims before the National Compensation Tribunal and criminal and civil proceedings against a private person within the meaning of subsection 142 (2), any statutory time limitation may be waived by the Tribunal or by a court if it seems to the Tribunal or the court equitable to do so.

    National Compensation Fund

  8. 144.

    • (1) There shall be a National Compensation Fund which shall be a trust vested in the Republic.

    • (2) The National Compensation Fund shall be used exclusively for the purposes assigned to it by this Constitution and shall

      • (a) be a trust, the purpose of which shall be for the exclusive benefit of those applicants to the National Compensation Tribunal who have been granted any award, gratuity, pension or other form of reparation according to the principles, procedures and rules of the National Compensation Tribunal;

      • (b) be held in a separate account within the Reserve Bank of Malawi; and

      • (c) have all of its reports, financial statements and information relating to its operation published and maintained for public scrutiny.

    • (3) Subject to this chapter, the only charges on, or disbursements to be made from, the National Compensation Fund shall be by

      • (a) the National Compensation Tribunal; or

      • (b) the trustees of the Fund in so far as such disbursements or charges are necessary and prudent for the efficient operation of the Fund in accordance with its purpose as declared in this subsection.

    • (p.824)
    • (4) There shall be not less than four trustees of the National Compensation Fund who shall be appointed from time to time by the Public Appointments Committee on the recommendation of the National Compensation Tribunal.

    • (5) A Trustee shall hold office for the duration of the Fund unless and only in such circumstances as that trustee is removed by the Public Appointments Committee on the grounds of

      • (a) incompetence;

      • (b) incapacity; or

      • (c) being compromised in the exercise of his or her functions to the extent that his or her financial probity is in serious question.

    • (6) Trustees of the National Compensation Fund shall exercise their functions independent of any direction or interference by any body or authority, save as is provided by this section.

    • (7) The Auditor General shall make an annual report, to be laid before the National Assembly, on the conduct and status of the Fund which shall provide guidance to the National Assembly for voting an appropriation for the purposes of the National Compensation Fund.

    • (8) An appropriation for the purposes of the National Compensation Fund shall be laid before the National Assembly by the Minister responsible for Finance before the beginning, and with respect to, every financial year during the life of the Fund.

    • (9) With respect to any financial year, the Tribunal shall prescribe a period not being more than six months after the commencement of that financial year, after which the Tribunal shall not receive applications for compensation within that financial year from the National Compensation Fund.

    Winding up of the National Compensation Fund

  9. 145.

    • (1) The National Compensation Fund shall cease to be charged with new claims for compensation not later than ten years after the commencement of this Constitution at which time the National Compensation Tribunal shall dissolve.

    • (2) If, with respect to any year within the period prescribed in subsection (1), and after the second year of it coming into existence, less than ten applications are made to the National Compensation Tribunal, then the Chairman of the Tribunal may direct the Minister responsible for Finance to lay before the National Assembly a Bill

      • (a) to dissolve the National Compensation Tribunal; and

      • (b) to confer on the High Court jurisdiction equivalent to that of the National Compensation Tribunal to determine claims against the Government within the meaning of this chapter.

    • (p.825)
    • (3) Where the National Compensation Tribunal has been dissolved, for the remaining duration of the period prescribed in subsection (1) the uncommitted residue of the Fund shall remain a separate fund within the accounts of the Consolidated Fund which shall be drawn upon by the Minister responsible for Finance in respect of awards made by the High Court in relation to claims that would otherwise have been determined by the National Compensation Tribunal.

    • (4) The National Compensation Fund shall continue until there is no longer a committed residue.

National Compensation Tribunal (Procedure) Rules, 1997

[The Malawi Gazette Supplement, October 17, 1997]

Rule    Arrangement of Rules

PART I PRELIMINARY

  • 1. Citation

  • 2. Interpretation

  • 3. Application

    PART II NOTIFICATION AND REGISTRATION OF CLAIMS

  • 4. Notification of claims

  • 5. Registration of claims

    PART III FILING OF CLAIMS

  • 6. Claims by representatives

  • 7. Claims by agents

  • 8. Claims by, or on behalf of, minors

  • 9. Claims by families

  • 10. Claims by unincorporated associations

  • 11. Associated and severed claims

  • 12. Third party interests

    PART IV SUBMISSION, PREPARATION AND ASSESSMENT OF CLAIMS

  • (p.826)
  • 13. Evidence to establish claims

  • 14. Appointment of experts

  • 15. Guidelines and tariffs

  • 16. Preparation and assessment of claims

    PART V DETERMINATION OF CLAIMS

  • 17. Determination of claims

  • 18. Oral hearings

  • 19. Expedited claims

    PART VI AWARDS

  • 20. Payment of monetary awards

  • 21. Non‐monetary awards

  • 22. Negotiated settlements and distribution

    PART VII REVIEW OF AWARDS

  • 23. Review of awards at instance of claimant

  • 24. Review of awards at instance of the Tribunal

  • 25. No review where award paid

    PART VIII AMENDMENT, WITHDRAWAL AND ABANDONMENT OF CLAIMS

  • 26. Amendment of claims

  • 27. Change of claims

  • 28. Withdrawal of claims

  • 29. Abandonment of claims

    PART IX MISCELLANEOUS

  • 30. No assignment of claims

  • 31. Death of claimant

  • 32. Orders and directions

  • 33. Formal requirements

  • 34. Maintenance and publication of records

  • 35. Service by post

  • 36. Languages

  • 37. Corrections

In exercise of the powers conferred by section 3 of the National Compensation Tribunal (Miscellaneous Provisions) Act, 1995, I, Richard Allen Banda, Chief Justice, make the following rules.

(p.827) PART I: PRELIMINARY

  1. 1. The Rules may be cited as the National Compensation Tribunal (Procedure) Rules, 1997.

  2. 2. In these rules, unless the context otherwise requires,

    • ‘agent’ means a person appointed by a claimant to act on behalf of the claimant;

    • ‘claim’ means an application by, or on behalf of, a claimant or joint claimants addressed to the Tribunal for an award in respect of a loss or injury;

    • ‘claimant’ means a person who suffered loss or injury or a person who has at law inherited an entitlement to claim in respect of a loss or injury, and includes a dependant of a claimant and a representative, but does not include an agent;

    • ‘Fund’ means the National Compensation Fund established under section 144 of the Constitution;

    • ‘representative’ means

      • (a) a person through whom a claim is brought by a person beneficially entitled to claim but lacks legal capacity to act, or

      • (b) a person who is authorized to act for another person, including a family unit;

    • ‘Tribunal’ means the National Compensation Tribunal established under Part XIII of the Constitution.

  3. 3. These Rules apply to all claims submitted before the Tribunal.

    PART II: NOTIFICATION AND REGISTRATION OF CLAIMS

  4. 4.

    • (1) Every person wishing to make a claim shall notify the Tribunal of his or her intention by submitting sufficient information to identify the claimant and the claim.

    • (2) Where the Tribunal receives notification of a claim, it shall, unless it decides such step to be unnecessary, forward to the claimant such claim forms as will facilitate the efficient assessment of the claim.

    • (3) Subject to subrule (4), every claimant shall append his or her signature or other identification mark to the notification and claim forms referred to in subrules (1) and (2), respectively.

    • (4) The Tribunal may, in exceptional circumstances and under such conditions as the Tribunal may in the best interests of the claimant impose, accept the signature of an agent instead of the signature or other identification mark of the claimant.

  5. (p.828)
  6. 5.

    • (1) Subject to subtitle (3), the Tribunal shall upon receipt of a notification under rule 3 register the claim.

    • (2) Upon registration of a claim under subrule (1) the Tribunal shall within fourteen days send a written notice of the registration of the claim to the claimant.

    • (3) Subject to any deadlines that may be prescribed, from time to time, in respect of specific categories of claims, the Tribunal may register claims up to one year before the completion of the operations of the Tribunal.

    PART III: FILING OF CLAIMS

  7. 6. Every person acting as a representative of the claimant shall produce evidence satisfactory to the Tribunal regarding his or her authority to so act.

  8. 7.

    • (1) Every person acting as an agent of a claimant shall produce evidence satisfactory to the Tribunal regarding his or her authority to act as agent of the claimant for the purpose of making a claim, and such evidence shall include a letter of authority bearing the signature or other identification mark of the claimant authorizing the agent to act on behalf of the claimant.

    • (2) Where a claimant is represented by an agent,

      • (a) the claim shall continue in the name of the claimant who shall be entitled to receive a copy of all notices sent to the agent;

        Provided that in the case of a claim by an unincorporated association the Tribunal may limit the number of persons entitled to receive copies of notices;

      • (b) the claimant shall have the right to terminate or limit the mandate of the agent at any time by written notice to the Tribunal;

      • (c) the Tribunal shall not entertain any claim in respect of fees or other expenses associated with the pursuit of a claim, either as an independent claim or as a charge against an award.

  9. 8. A claim by, or on behalf of, a minor may be made by his or her parent, guardian or person appointed by the court or by the Tribunal, and shall be styled ‘X on behalf of Y, a minor’.

  10. 9. Where a claim arising from the same event or series of related events is bought by, or on behalf of, persons closely related, any person acting on behalf of the family shall be deemed to be an agent, unless the Tribunal determines otherwise, and payment may be made either to individual claimants or to the appropriate District Commissioner who shall pay the individual claimants.

  11. 10. Where a claim is made in respect of the loss of an unincorporated association, any two or more members of the association may represent the other members, if the Tribunal is satisfied that they are acting in the best interests (p.829) of, and with the approval of, the other members of the association, and the claim shall be styled, ‘X, an unincorporated association’.

  12. 11. Where, in the opinion of the Tribunal, two or more claims may be conveniently assessed or determined at the same time, the Tribunal may order that the claims or parts of the claims be associated and where, in the opinion of the Tribunal, several claims may be conveniently treated as separate claims, it may likewise so order.

  13. 12.

    • (1) Where a claimant seeks restitution of specific property the Tribunal shall within a reasonable time notify the current title holder of the property of the existence of the claim and of his and her rights, under these Rules.

    • (2) A third party who disputes a claim for restitution and who has a sufficient interest in the property which is the subject of a claim shall notify the Tribunal of his or her interest, and if the Tribunal finds the intervention or claim to be warranted, the Tribunal shall join that party to the proceedings.

    • (3) The title holder of any property notified under subrule (1) and any party joined to the proceedings under (2) shall, within the time set out in any notice by the Tribunal, provide such information concerning his or her acquisition of the property or interest, and any other relevant information that the Tribunal may request. (4) A party joined to proceedings pursuant to subrules (1) and (2) shall be entitled to all notices of the proceedings and be given the same opportunity to be heard as claimant.

    PART IV: SUBMISSION, PREPARATION, AND ASSESSMENT OF CLAIMS

  14. 13.

    • (1) The claimant shall provide such evidence as may be required to establish the claim.

    • (2) Notwithstanding subrule (1), the Tribunal may consider or hear any other evidence or information that may otherwise be presented to it, and for this purpose the Tribunal shall

      • (a) have powers of the High Court in hearing evidence, summoning of witnesses and compelling the attendance of any person and production of documents;

      • (b) have power to obtain evidence abroad, and may give such directions for the taking of such evidence and for the manner thereof as may be deemed expedient.

  15. 14. The Tribunal may, in respect of any claim on category claims, appoint such experts or panels of experts as it considers necessary and for such period as it considers appropriate to establish facts and to make appropriate recommendations on matters of policy.

  16. (p.830)
  17. 15. The Tribunal shall establish and publish assessment guidelines and tariffs for the expeditious processing of claims.

  18. 16.

    • (1) The Tribunal shall review each claim and evidence in support of the claim, and may, by notice in writing addressed to the claimant, require the claimant to provide such further information or documents as in the opinion of the Tribunal may be necessary to facilitate the assessment of the claim.

    • (2) A notice under subrule (1) may be supplemented by such additional requests and communications as the Tribunal may consider appropriate, and in each case the Tribunal shall specify the period within which the claimant shall respond.

    PART V: DETERMINATION OF CLAIMS

  19. 17.

    • (1) Subject to availability of funds for distribution and subrule (3), where the Tribunal considers that a claim is read for determination, or where no additional information or documents requested by notice to the claimant is supplied or expected, the Tribunal shall upon at least fourteen days written notice inform the claimant that the claim is ready for determination, and shall thereafter determine the claim.

    • (2) The Tribunal shall within seven days of the date of an award notify the claimant of any particulars of the award.

    • (3) Subject to rule 19 and subrule (1), the Tribunal shall determine claims in ascending order of size.

    • (4) The Tribunal may make such interim awards from time to time as it may deem to be just in the circumstances, provided that such award does not exceed the anticipated total value of the claim.

  20. 18.

    • (1) The Tribunal may of its own volition or upon the application of a claimant order an oral hearing of a claim, and where the Tribunal so orders, it shall notify the claimant in writing at least fourteen days before the date of the hearing.

    • (2) Save as the Tribunal may otherwise order, an oral hearing shall be held in public at a place to be determined by the Tribunal.

  21. 19. Where a claimant:

      • (a) has reached the age of sixty‐five years or

      • (b) produces a medical certificate, which, in the opinion of the Tribunal, provides strong evidence that, in light of the condition and prospects of the claimant, it would be inequitable not to expedite his or her claim, the Tribunal shall process the claim of the claimant on a priority basis.

        Provided that the Tribunal may order an independent examination of the claimant to establish the bona fides of any claimant seeking relief under this rule.

    (p.831)

    PART VI: AWARDS

  22. 20.

    • (1) The Tribunal shall make payment of a monetary award to a successful claimant as expeditiously as possible in accordance with the following principles:

      • (a) Lump sum monetary awards not exceeding a prescribed payment threshold to be determined by the Tribunal from time to time shall be paid in full as soon as possible.

      • (b) Monetary awards exceeding or equal to a threshold determined by the Tribunal shall be paid up to the threshold amount, and any balance shall be discharged in a manner to be determined by the Tribunal having regard to amounts available for distribution in the Fund, and other available resources.

      • (c) All payments shall be made directly to the claimant or his or her legal representative, or a bank account or a building society account held in the name of the claimant.

      • (d) The Tribunal shall not entertain requests to make payments to third parties.

    • (2) Notwithstanding subrule (1), any monetary compensation payable to a minor shall be paid into court or to an appropriate District Commissioner, and shall be held in trust for the minor until such time as the minor reaches the age of majority.

    • (3) Where the Tribunal has made a monetary award in favor of an unincorporated association, the Tribunal may withhold payment until such time as the right of the representatives to receive funds has been established to the satisfaction of the Tribunal, and the Tribunal may for the purposes of making payment at any time appoint any other person in addition to, or in substitution for, any person previously accepted as representative.

  23. 21.

    • (1) The Tribunal may, in respect of any claim, recommend a non‐monetary award, including the restitution of property, and shall within seven days communicate its recommendation to the appropriate party.

    • (2) An order under this section shall have the same force and effect as an order of the High Court, and shall be enforced in the same manner.

  24. 22. Where it is in the interest of the parties and the Tribunal to do so, the Tribunal may negotiate the settlement of a claim or take part in any informal dispute resolution procedures, and any terms agreed as well as any recommendation arising from the procedures shall be subject to approval by the Tribunal.

    (p.832)

    PART VII: REVIEW OF AWARDS

  25. 23.

    • (1) A claimant may, within twenty‐one days of receipt of notification of an award, file with the Tribunal an objection to the amount or type of award.

    • (2) An objection filed pursuant to subrule (1) shall state the reasons for the objection and may be supported by further information or documents made available by the claimant.

    • (3) Where the Tribunal, after considering the reasons for the objection and any further information or documents made available by the claimant, is of the opinion that

      • (a) there is sufficient grounds on which to renew an award, and

      • (b) there is sufficient reason for the further information or documents not being available at an earlier date.

      It may, subject to rule 25, review the award and reverse its findings.

    • (4) The Tribunal may, within seven days of a review of an award, notify the claimant of the amount and any particulars of the award as reviewed.

  26. 24.

    • (1) The Tribunal may, subject to subrule (2), at any time before an award is paid out, of its own volition review an award.

    • (2) In the case of a review other than to increase the amount of an award the Tribunal shall not proceed unless it has served twenty‐one days' written notice on the claimant stating an intention to review the award and the reasons for the review, and the Tribunal shall accord the claimant sufficient opportunity to be heard prior to the review.

  27. 25. Except in cases of fraud, no review shall be made after the expiry of twenty‐one days of the date of an award or where the amount of the award has been paid out to the claimant.

    PART VIII: AMENDMENT, WITHDRAWAL AND ABANDONMENT OF CLAIMS

  28. 26.

    • (1) A claimant may at any time before a claim is determined in accordance with rule 17 amend his or her claim.

    • (2) Save as otherwise provided in subrule (1), a claimant shall not, without leave of the Tribunal, amend his or her claim.

  29. 27.

    • (1) The Tribunal may, on application by a person with a sufficient interest in the claim, add to, or remove from, a claim any person or charge the particulars of any person to a claim:

      Provided that any person to be removed shall have the right to be heard in the same manner as a determination of a claim under rule 17.

    • (p.833)
    • (2) Every application under subrule (1) shall be in writing and shall state the reason for the removal or addition of a person to the claim, or the change of the particulars of that person, as the case may be.

  30. 28.

    • (1) A claim may be withdrawn at any time:

      Provided that where the claim was instituted or continued by an agent or representative, the claim shall not be withdrawn save with the written consent of the claimant signified in writing.

    • (2) A claim which has been withdrawn shall not be reinstituted without the leave of the Tribunal.

  31. 29.

    • (1) Where a claim has been dormant for a period of two years from the date of the last unanswered communication from the Tribunal addressed to the claimant and reasonable efforts have been made to locate the claimant but no evidence of continued interest of the claimant has been received by the Tribunal, the claim shall be deemed to have been abandoned.

    • (2) Where a claim is deemed abandoned in accordance with subrule (1), the Tribunal shall send to claimant, at his last address, written notice of abandonment, and the notice shall be published in the Gazette and in at least two issues of any national newspaper in general circulation.

    • (3) An abandonment claim shall be deemed withdrawn ninety days after a notice of abandonment has been given to the claimant in accordance with subrule (2).

    PART IX: MISCELLANEOUS

  32. 30. No claim shall be assigned and no form of reparation shall be awarded to the assignee of a claim.

  33. 31. In the event of the death of a claimant, an award shall be payable to the estate of the deceased unless the award is specified to the claimant such as medical care or job retraining.

  34. 32. Notwithstanding any other provision of these Rules, the Tribunal may, on application by the claimant, of its own volition, make any order or give any direction necessary to facilitate the fair and expeditious determination of a claim.

  35. 33. Notwithstanding any other provisions of these Rules, the Tribunal shall have the discretion to accept any communication in lieu of prescribed forms subject to such conditions as the Tribunal may in its discretion consider appropriate.

  36. 34.

    • (1) The Tribunal shall maintain records of claims and the Fund in such a manner as to facilitate the periodic reporting of progress of the claims and to ensure transparency in the management of the Fund.

    • (p.834)
    • (2) The Tribunal shall publish in the Gazette beginning after the expiry of three months from the commencement of these Rules, a monthly progress report containing information covering:

      • (a) the total number of claims received;

      • (b) the number of claims in each category;

      • (c) the amounts awarded in each category;

      • (d) the total amount awarded;

      • (e) other forms of compensation awarded;

      • (f) the number of claims dismissed; and

      • (g) such other information as the Tribunal may consider appropriate.

  37. 35. Any notice or other document required or authorized to be served on any person for the purposes of these Rules may be sent by prepaid post to that person or a representative or both, as the case may be, at the last address notified to the Tribunal, and if so sent shall be deemed to have been duly served on the date of posting.

  38. 36.

    • (1) All communications in respect of claims under these Rules may be in any of the principal languages of Malawi.

    • (2) All forms, instructions and communications issuing from the Tribunal shall be in English, with such supplementary translations in additional languages as may be required for the effective prosecution of claims.

  39. 37. Any clerical mistake or error in any determination, order or direction may at any time be corrected by the Tribunal of its own volition after giving notice to the claimant or at the request of the claimant.

Made this 25th day of September, 1997.

R. A. Banda

Chief Justice