OPINION | Executive Orders and the Rule of Law: Reform Must Not Outrun the Constitution

When public anger rises, decisive action feels powerful. It feels necessary. 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 urgent your financial problem may be.

You go to court. The court issues an order. Only then can assets be lawfully attached.

If someone steals, we do not beat them in the street. We arrest them, charge them, and take them before a competent court. Procedure is not a delay tactic.

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It is the foundation of justice. It is against this background that the recent developments in the health sector must be examined calmly and seriously. Media investigations exposed what appears to be a cartel operating within public hospitals, where some doctors allegedly demanded payments for services that are supposed to be free, while others reportedly redirected patients to their own private clinics.

If these allegations are true, the conduct is unethical, abusive, and criminal. It undermines trust in the health system and exploits vulnerable citizens at their weakest moment. In response, President Arthur Peter Mutharika issued Executive Order No.

1 of 2026 banning the solicitation of payments in public hospitals and prohibiting public health workers from owning, operating, or holding shares in private clinics or pharmacies. Those affected have been given thirty days to divest or face dismissal and prosecution. The reaction from the public has been loud and approving.

Many citizens, understandably angered by stories of suffering patients, see the directive as bold leadership. The central question that must be asked, without emotion and without fear, is whether the misconduct in question can already be dealt with under existing laws. The answer is yes.

Malawi has a Penal Code that criminalises extortion and abuse of office. It has the Corrupt Practices Act to deal with corruption. It has the Public Service Act, the Public Finance Management Act, and professional regulatory frameworks that provide for discipline, suspension, and dismissal.

If a public health worker demands illegal payment, that is corruption. Arrest them. Charge them.

Prosecute them. Dismiss them after due process. The legal framework already exists.

This leads to a more difficult question: was it necessary to impose a blanket prohibition through an Executive Order? Conflict of interest is not unique to doctors. There are public officers who run transport businesses, civil servants who own shops, agricultural officials who farm commercially, and senior legal officers who maintain private practice.

Business ownership in itself is not illegal in Malawi. The Constitution does not prohibit it. What it demands is accountability where abuse occurs.

There is a crucial difference between regulating conflict of interest and banning ownership altogether. When that distinction is blurred, the risk of overreach emerges. Even where a problem is real, and malpractice in hospitals is undeniably real, solutions must remain anchored in law.

We do not abandon due process because we are angry. Executive authority must be grounded in statute. An Executive Order cannot create new categories of prohibition unless legislation expressly grants that power.

If the Public Service Act does not authorise the President to ban entire classes of business ownership for a specific group of public officers, then the directive risks being ultra vires, beyond lawful authority. Good intentions do not cure illegality. There is also the question of selective application.

If the principle is that public servants must not engage in private business due to potential conflict of interest, then that principle should apply consistently across the public service. Isolating one profession raises constitutional concerns, particularly under Section 20, which protects against discrimination. Any differentiation must be reasonable, proportionate, and rationally connected to a legitimate aim.

A sweeping ban on one professional group, introduced without legislative amendment, may struggle to satisfy that constitutional standard. None of this is a defence of malpractice. The allegations in public hospitals demand firm action.

Patients must be protected. Corruption must be punished decisively. But firmness must walk hand in hand with legality.

If dual practice is genuinely undermining public healthcare, then the durable solution lies in Parliament. The law can be amended. Conflict-of-interest rules can be tightened.

Disclosure requirements can be strengthened. Monitoring mechanisms can be institutionalised. That is reform grounded in legitimacy.

An Executive Order offers speed. Legislation offers durability. Speed can satisfy anger.

Legitimacy secures justice. Just as property cannot be seized without a court order, sweeping prohibitions cannot be imposed without clear statutory grounding. If the Executive Order lacks that foundation, it is open to challenge in court.

And challenging it would not be an attempt to shield corruption. It would be an affirmation that even in moments of crisis, the Constitution remains supreme.

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