18/02/2026
A Constitutional and Policy Reflection on Executive Order No. 1 of 2026
Executive Order No. 1 of 2026, concerning health services in Malawi, addresses two significant matters within the public health sector. First, it prohibits the solicitation of payments from patients in public health facilities. Secondly, it restricts public health employees from owning, operating, or holding shares in private clinics, hospitals, pharmacies, or drug stores, requiring divestment within thirty days.
The intention to safeguard patients and restore integrity within the health system is both understandable and commendable. At the same time, it is important in a constitutional democracy to reflect carefully on the legal, human rights, labour, and economic implications of such policy measures. The following analysis is offered in that spirit, as a constructive contribution to public discourse.
1. The Prohibition of Soliciting
Payments
The prohibition against public health workers demanding or accepting payments as a condition for providing services aligns with constitutional principles and long-standing ethical standards within the medical profession.
The Constitution of Malawi guarantees access to essential services without discrimination. Informal payments undermine equality and disproportionately affect vulnerable citizens. Addressing such conduct strengthens public confidence, reinforces professional ethics, and protects the dignity of patients.
From a legal and human rights standpoint, this component of the Order appears consistent with:
a. The right to equality before the
law
b. The right to dignity
c. The protection of access to
public services
Measures aimed at preventing exploitation in public facilities are therefore defensible and grounded in legitimate public interest.
2. Restriction on Ownership of
Private Health Facilities
The second component of the Order, which prohibits public health employees from owning or holding shares in private health facilities or pharmacies, presents more complex constitutional and policy considerations.
(a) Constitutional and Property Rights Considerations
The Constitution protects the right to property and recognises the freedom to engage in lawful economic activity. Public servants, while subject to professional regulation, retain these rights unless lawfully and proportionately limited.
In constitutional jurisprudence, limitations on rights must generally meet the test of:
a Legality
b. Legitimate purpose
c. Proportionality
d. Reasonableness
While preventing conflicts of interest is unquestionably a legitimate objective, a blanket prohibition on ownership may raise questions as to whether it represents the least restrictive means of achieving that objective.
Alternative mechanisms often used in comparable jurisdictions include:
a. Mandatory disclosure of financial
interests
b. Regulation of dual practice hours
c. Clear separation of public duties
and private enterprise
d. Strict prohibition of self-referrals
e. Performance and attendance
monitoring
A total prohibition may therefore warrant further legal clarification to ensure consistency with constitutional protections.
(b) Labour and Administrative Law
Considerations
The requirement for divestment within thirty days introduces additional practical and legal concerns.
Public employment is governed by statutory frameworks and labour principles that typically require procedural fairness, clarity, and reasonable implementation timelines. Abrupt divestment requirements may create financial disruption, particularly where individuals have invested capital, secured loans, or entered into contractual obligations.
Should significant numbers of professionals elect to resign rather than divest, the public health system could experience workforce instability. While such outcomes may not be the intention of the Order, they represent foreseeable consequences that merit careful consideration.
3. Economic and Entrepreneurial
Implications
It is widely recognised that in many low- and middle-income countries, dual practice has emerged partly as a response to limited public sector remuneration and resource constraints.
Private health enterprises often:
a. Create employment
b. Expand service coverage
c. Contribute to tax revenue
a. Reduce patient pressure on
public facilities
If facilities owned by public servants are closed or rapidly divested, potential consequences may include:
a. Reduced corporate and
income tax contributions
b. Increased unemployment
among allied health workers
c. Greater patient load
within government hospitals
d Expansion of informal
or unregulated health services
These are economic and systemic considerations rather than ideological objections. Policymaking in this area requires a careful balance between preventing abuse and sustaining healthcare capacity.
4. Public Interest and System
Stability
The overarching goal of strengthening integrity within the health sector is widely shared. However, policy design must also consider health system resilience.
Malawi, like many countries, continues to face shortages of specialised personnel. Any regulatory framework that significantly alters income structures or investment rights may influence retention, morale, and long-term workforce planning.
A calibrated approach, one that manages conflicts of interest without eliminating lawful entrepreneurship, may better preserve both public trust and system stability.
5. A Constructive Way Forward
In light of these considerations, policymakers might consider:
a. Establishing comprehensive
conflict-of-interest disclosure
requirements
b. Prohibiting referrals from public
facilities to privately owned
facilities
c. Strengthening internal
disciplinary systems
d. Reviewing remuneration and
incentive structures
e. Introducing phased or
consultative implementation
mechanisms
Such measures could address ethical concerns while respecting constitutional guarantees and economic realities.
Summary
Executive Order No. 1 of 2026 addresses a genuine and pressing concern within the public health sector. The prohibition of soliciting payments in public facilities appears legally sound and ethically justified.
The restriction on ownership of private health enterprises, however, raises more complex constitutional, labour, and economic questions. In a constitutional democracy, robust public discussion of such matters is not opposition but participation.
A balanced approach, rooted in legality, proportionality, and practical implementation, may ultimately serve both patients and professionals more effectively.
