EXECUTIVE ORDERS, PROCEDURE, AND THE RULE OF LAW
If someone owes you money and refuses to repay it, the law does not allow you to storm their house and seize their property, no matter how desperately you need the money to solve a monetary problem. You must go to court. The court gives the order. Only then can assets be lawfully attached.
Why?
Because Malawi is governed by law, not impulse.
The same principle applies when someone commits a crime. We do not beat a suspected thief to death in the street. We arrest them. We charge them. We take them before a competent court. Procedures matter.
This is not a jungle. Malawi is a constitutional state.
THE HEALTH SECTOR SCANDAL
A few days ago, media investigations exposed what appears to be a cartel operating within public hospitals. Some doctors allegedly demanded payments before providing treatment. Others reportedly redirected patients to their own private clinics.
This is unacceptable. It is unethical. It is criminal.
In response, the President issued Executive Order No. 1 of 2026, banning:
1. The solicitation of payments in public hospitals (telling patients to pay for free services)
2. Ownership or operation of private clinics or pharmacies by public health workers.
3. Holding shares in such private facilities.
Those affected have been given 30 days to divest (to sell off) or face dismissal and prosecution.
There has been nothing but defeaning public applause to the directive more or so from people not affected by the executive order, who had Chitawira private clinic or other successful private hospitals in mind.
But public applause is not the test of legality.
THE CRITICAL QUESTION BEING OVERLOOKED
Can the misconduct by the medical personnel be dealt with under existing laws?
The answer is yes.
Malawi already has: the Penal Code (extortion, corruption-related offences), the Corrupt Practices Act, The Public Service Act, The Medical Council regulatory framework, The Public Finance Management Act and Employment contracts and disciplinary codes.
If a public health worker demands money illegally, that is corruption or extortion. Arrest them. Prosecute them. Dismiss them following disciplinary procedures.
There is already a legal framework.
So the real question becomes: WAS AN EXECUTIVE ORDER NECESSARY?
REGULATION VERSUS PROHIBITION
Conflict of interest is not unique to doctors.
There are:
Traffic police officers who operate transport businesses.
Public servants who own shops.
Ministry of Agriculture officials who farm commercially.
A minister of Justice, an Attorney General and the Director of Public Prosecutions, who own their own private practice
Malawi Housing employees with rental houses. Etc etc
Ownership of business is not illegal in Malawi.
The Constitution does not prohibit public officers from owning businesses. It regulates conflict of interest. It requires disclosure and discipline where abuse occurs.
There is a difference between: regulating abuse and outright banning ownership.
The Executive Order collapses the two.
THE RULE OF LAW PROBLEM
Even where a problem is real, and malpractice in hospitals is real, solutions must follow procedure.
We do not kill thieves because theft is wrong. We prosecute them because law demands it.
Similarly, executive power must be grounded in statute. An Executive Order cannot create new prohibitions unless backed by existing legislation granting such authority.
If the Public Service Act does not expressly empower the President to prohibit entire categories of ownership, then the Order risks being ultra vires (beyond lawful authority). INTENTIONS DO NOT CURE ILLEGALITY
THE SELECTIVE APPLICATION ISSUE
Why isolate medical personnel? If the principle is that public servants must not run private businesses due to conflict of interest, then the ban should apply across the board.
Selective targeting raises constitutional questions under Section 20 (non-discrimination). Differentiation is lawful only if it is reasonable, proportionate, and rationally connected to a legitimate aim.
A blanket ban without legislative amendment may not survive that test.
THE BETTER APPROACH
If dual practice is problematic, Parliament should: Amend the Public Service Act. Introduce strict conflict-of-interest rules. Mandate disclosure. Create monitoring mechanisms. Strengthen disciplinary enforcement.
NOW that is reform.
An Executive Order is speed. Law reform is legitimacy.
CONCLUSION
The misconduct reported in public hospitals must be dealt with firmly.
But firmness without procedure is dangerous.
Malawi is not governed by outrage. It is governed by law.
The same way we cannot seize property without a court order, the Executive cannot impose sweeping prohibitions without statutory grounding.
If the Order lacks proper legal foundation, it is challengeable in court.
And challenging it would not be defending malpractice.
It would be defending the Constitution.
