NRM Policies and Laws in Malawi

NRM Policies, Laws and Institutional Framework in Malawi – Volume 1
Table of Contents Page
1. INTRODUCTION.....................................................................................................1.1
1.1 Purpose and approach of the manual ...............................................................1.1

1.2 Principles and status of policy change ..............................................................1.1
1.3 Decentralization and natural resources management .....................................1.3
1.4 The formal process of policy and legal change.................................................1.4
1.5 The environment, rural life and local government in the Malawi Constitution
(1995), and other national-level statements on the environment....................1.4
2. ENVIRONMENT MANAGEMENT ......................................................................2.1
2.1 The National Environmental Policy (1996) ......................................................2.1

2.2 The Environment Management Act (1996) ......................................................2.3
3. DECENTRALIZATION AND NATURAL RESOURCES MANAGEMENT ...3.1
3.1 National Decentralization Policy (1998) and Local Government Act (1998) 3.1
3.2 Roles and responsibilities of district-level public officers and institutions....3.5
4. LAND USE AND MANAGEMENT........................................................................4.1
4.1 Preamble ..............................................................................................................4.1

4.2 The National Land Resources Management Policy and Strategy, 1998 (draft)
...............................................................................................................................4.2
4.3 The Use and Management of Private Land......................................................4.4
4.4 The Use and Management of Customary Land ...............................................4.7
4.5 Land use and management regulations made under the Environment
Management Act (1996) .....................................................................................4.8
4.6 The powers of District Assemblies over land ...................................................4.9
4.7 The role of public officers at district level ........................................................4.9
5. WATER AND IRRIGATION..................................................................................5.1
5.1 Introduction.........................................................................................................5.1
5.2 Water resources policy .......................................................................................5.2
5.3 The National Irrigation policy (2000) ...............................................................5.5
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5.4 Water sector legislation ......................................................................................5.6

5.5 Water sector functions and decentralization..................................................5.13
6. FORESTRY...............................................................................................................6.1
6.1 Preamble ..............................................................................................................6.1

6.2 The National Forest Policy, 1996.......................................................................6.1
6.3 The Forestry Act, 1997 .......................................................................................6.6
6.4 The roles of Forest Officers at district level ...................................................6.16
7. FISHERIES ...............................................................................................................7.1
7.1 Preamble ..............................................................................................................7.1

7.2 The National Fisheries and Aqua-culture Policy .............................................7.2
7.3 The Fisheries Conservation and Management Act (1997) ..............................7.4
7.4 The roles of Fisheries Officers at district level...............................................7.17
8. NATIONAL PARKS AND WILDLIFE .................................................................8.1
8.1 Preamble ..............................................................................................................8.1

8.2 The National Wildlife Policy (2000) ..................................................................8.2
8.3 The National Parks and Wildlife Act (1992), and proposed amendments ....8.6
8.4 Wildlife functions at district level....................................................................8.17
List of Tables
Table 5.1 Institutional Roles In The Water Sector, As Defined By The Draft Wrmp (1999)....... 5.4
Table 6:1 Legal Framework For Utilizing Indigenous Forest Products From Unallocated
Customary Land .......................................................................................................... 6.10
Table 6.2 Division Of Institutional Functions Within The Forestry Sector ................................ 6.16
Table 7.1 Division Of Institutional Functions Within The Fisheries Sector............................... 7.17
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1. INTRODUCTION
1.1 PURPOSE AND APPROACH OF THE MANUAL
This introduction examines the process of policy and legal reform that has occupied all of the NRM
sectors over recent years, and is still under way, and ends with a brief discussion of government
policy as expressed at the highest level – the Constitution. The remainder of the manual goes on to
deal with each of the major natural resources sectors in turn, beginning with the framework policy and
legislation on environmental management, which provides guidance and direction to the others. A
section is also included to cover those aspects of the Decentralisation Policy and the Local
Government Act, 1998, which relate directly to the environment and natural resources management.
Within each subject area the approach taken will be as follows:
• Firstly, all of the documents that make up the current legal framework will be listed, with
comments on their current status and any changes likely in the near future.
• Secondly, a brief interpretation of the main policy themes will be provided.
• A third section will deal in more detail with the current legal provisions for natural resource
management. In some cases (e.g. the chapter on decentralisation) it has proved clearer to
discuss the policy and the law at the same time. In defining duties, obligations and
possibilities for development a law is of course more important than a policy, but a good
understanding of policy issues is very helpful in the interpretation of the law.
• Finally, the specific responsibilities of professionals – both public servants and those working
in the non-governmental and private sectors – will be addressed.
As far as possible the manual has been compiled from policy and legal documents that are currently in
force, and as a convention throughout this manual quotations from policy documents are printed in
Univers Condensed italic font text Size 10 while quotations from laws and regulations are printed in
Tahoma Italic Font Size 9 Text. Quotations from draft legislation are printed in Comic Sans
MS Italic Font Size 9 and from other sources in Times New Roman Font italics. Every effort has
been made to ensure the accuracy of the material used, and each section of the manual has undergone
scrutiny both by a lawyer and by the responsible government department. However, some of the
issues are complex, and in some instances there remain unresolved issues and unanswered questions.
Feedback from the field will be invaluable when it comes to preparing revisions of the manual as the
legal and institutional framework changes. Please read this manual critically, and send your questions
or comments, either directly or via your District Environmental Officer, to:
Director of Environmental Affairs, Private Bag 394, Capital City, Lilongwe 3.

Telephone: 771 111; Fax: 773 379; E-mail: rpkabwaza@malawi.net
1.2 PRINCIPLES AND STATUS OF POLICY CHANGE
1.2.1 Resource tenure

A theme common to the new or developing policies for management of the biologically renewable
resources (forests, wildlife and fish) is the progressive transfer of resource tenure from the state to the
primary resource users, i.e. private landowners, communities, groups of communities or user
associations. The underlying premise is that state control of natural resources encourages open access
to the resource, whereas localised tenure systems imply restriction of access and therefore afford a
realistic opportunity for responsible management. The devolution of tenure does not mean an
abandonment of State responsibility. The handover of utilisation rights will be matched by a handover
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of management responsibilities through a formalised and legally binding system of management

agreements between the State and the resource users. In practical terms the partition of rights and
responsibilities between State and user will lie somewhere on a continuum bounded at one extreme by
total State control (as, for example, in the core zones of protected areas) and at the other extreme by
total community control (as in a community woodlot). Between the extremes lie various options for
co-management, in which both rights and responsibilities are shared by the State and the users. In all
cases government will retain the overall responsibility for monitoring the effectiveness of resource
management, and may withdraw tenure rights in cases where responsibilities are not being met.
The transfer process will be slow. Working with communities to sensitise them to the opportunities
for NRM, develop or strengthen village-level institutions, design management plans and provide
training and advice is painstaking, expensive work. Once a certain momentum has been achieved
much of the sensitisation and some extension could probably be done by the communities themselves,
but the size of the task should not be underestimated. In the meantime, those resources not managed
by or in partnership with communities will remain the responsibility of government sectoral agencies.
1.2.2 Spreading the load: the partnership approach

Given government’s limitations in manpower and financial resources, it is essential that the best
possible use be made of the services and resources that can be provided by interested non-government
agencies. Partnerships with the private sector can be particularly effective wherever circumstances
favour the common interests of NRM and commercial enterprise. Current examples include:
• in the wildlife sector, tourist concession-holders in National Parks and Wildlife Reserves already
make a substantial contribution towards protected area management through the provision of
transport and other services to government personnel. Potential exists to strengthen such
partnerships provided the terms for investment are sufficiently attractive. Both within and outside
of protected areas, eco-tourism could play a much stronger role in wildlife conservation than it
does at present.
• the larger buyers of cash crops are beginning to develop extension networks which could be
harnessed towards improvements in land management. Innovative private sector extension
initiatives in agricultural production (including agro-forestry technologies) and marketing have
flourished in neighbouring Zambia with relatively low levels of donor support, although no
attempt has yet been made to replicate this type of enterprise in Malawi.
• the estate agriculture sector has already been engaged in the multiplication of planting material for
agro-forestry initiatives, and with increasing pressure on the estates from smallholder competition
the diversification into novel products will become more attractive. Of particular importance here
could be the production of certified seed for trees and inter-crops, and, ultimately, plantation
forestry.
Partnerships between government and NGOs are now numerous in Malawi, and although the capacity
of national NGOs remains weak there is a clear opportunity to use donor finance to assist their
growth. The strength of the NGO contribution lies in specialist skills and interests which can be
harnessed to complement the broader interventions of government, as exemplified by the many
NGO/donor/GoM partnerships in agro-forestry, the work of TRAFFIC in the study of wildlife trade or
the outreach role of the Wildlife and Environmental Society of Malawi in the forestry and wildlife
sectors.
1.2.3 New roles for Government

It is clear from the direction in which policies for NRM are moving that the reform process is defining
new roles for Government. Probably the most obvious are those associated with the shift from control
to collaboration in the agencies responsible for the renewable biological resources. Here, the
devolution of NRM will impose additional responsibilities on government until such time as the new
management regimes become effective, after which both contraction and reorientation are indicated.
Thus:

• Traditional resource management functions will remain important in the near term, but will be
progressively reduced as co-management and community management initiatives come into
effect. However, even in the longer term sufficient enforcement capacity must be retained to
support communities in their own regulatory functions and, where necessary, to protect them from
outside interests.
• An adaptable and responsive research capacity will be required in order to formulate
recommendations for co-management and community management and solve site-specific
problems in the field. Resource monitoring will remain a high priority.
• Increased extension capacity will be required over the medium term to help create and support
devolved management structures.
• In the longer term the nature of the extension effort will be required to change towards the
provision of specialist technical support. This could be achieved through the deployment of
smaller, more mobile and more highly trained extension units that would eventually replace the
large and unwieldy field services which, currently, government can neither support nor adequately
supervise.
The trend is towards the gradual reduction of government’s NRM functions to those of guidance and
appropriate regulation. In practical terms this implies paying much closer attention to policy issues, to
refining and intensifying both research and monitoring, and to providing a sound regulatory
framework and an enabling environment for the devolution of management functions, backed up by
smaller but more professional technical support and law enforcement services. Government agencies
will be encouraged both to downsize and to become more professional, while the implementation of
policy will rely increasingly on the resource users, the private sector and other development partners.
1.3 DECENTRALIZATION AND NATURAL RESOURCES MANAGEMENT

In October 1998 the Cabinet approved a National Decentralization Policy (NDP), which will
transform not only the functions of district administration, but also many of the functions that are
presently the responsibility of central government institutions. The policy devolves administrative and
political authority to the district level, and integrates governmental agencies at the district and local
levels into a single administrative unit. The new administrative and political institution is termed the
District Assembly1, and will comprise of elected members with full executive powers as well as non-
voting traditional and political leaders. The heads of government departments at district level will
form a secretariat or management team answerable to the Assembly through a Chief Executive. They
will no longer report directly to their parent Ministries.
The Ministries/Departments to be decentralized in this way include: Health; Education; Lands,
Housing, Physical Planning and Surveys; Fisheries; Forestry; Agriculture (including Animal Health
and Industry and Irrigation); Works and Supplies; Water; Community Development; Commerce and
Industry; Tourism; Environmental Affairs (EDOs only). These Ministries will retain responsibility for
policy formulation, law enforcement and inspectorate, the establishment of standards, training,
curriculum development and international representation. They will have direct links with local
authorities, as instruments of service delivery, over professional and operational issues, but they will
no longer exercise immediate control over activities at district level.
The decentralization process defines a new institutional framework for line agencies at the district
level, but does not in itself alter the roles of public officers. Chapter 3 of the manual examines the
implications for natural resources managers in more detail.
1
Local authority areas comprise Cities, Municipalities and Townships as well as Districts: each will have its
own Assembly.

1.4 THE FORMAL PROCESS OF POLICY AND LEGAL CHANGE

Under the terms of the Constitution (see section 1.5 below), the State is charged with the
responsibility of managing the nation’s natural resource endowment in trust for the people of Malawi.
However much the ownership of natural resources, or rights to use them, may be devolved to local
authorities, user groups or local communities, the government cannot relinquish that responsibility
and will always retain a central guiding role in natural resources management. When we are
discussing policy, we are referring here to government policy, although it is recognised that other
stakeholders – NGOs, donors – may have their own policies and priorities that may not always
coincide with those of the government. There is nothing in Malawi law that stipulates how
government policies are arrived at. In the past, policy was determined by senior civil servants, with
little or no external consultation (and quite often with equally little internal consultation). Today the
importance of consultation is widely accepted, and new policies are usually designed through a
process of extensive discussion with representatives of all primary stakeholders and other interested
government agencies. This process ends with the preparation of a draft policy document that is
presented by the Ministry concerned to the appropriate Cabinet Committee. After discussion in the
Cabinet Committee, and possibly further modification, the draft is presented to the full Cabinet. Upon
Cabinet’s approval, the draft becomes the policy of the government.
New statutes are typically prepared through a parallel process of consultation, under the guidance of
legal experts provided either by the Ministry of Justice or contracted privately. Once developed to the
satisfaction of the appropriate technical Ministry, a draft Bill is submitted to the parliamentary
draftsmen of the Ministry of Justice to ensure compliance with Malawi’s legal customs and norms.
The Legal Affairs Committee of the Cabinet is subsequently asked to consider the draft, a process
which may re-open discussion on technical issues. Once the Legal Affairs Committee is satisfied with
the draft it will be scheduled for presentation to the National Assembly, or Parliament. After a
successful second reading in Parliament, and with the inclusion of any amendments Parliament may
require, the Bill becomes an Act of Parliament and will be passed on to the President for his assent.
Even then, the new Act does not become effective until such time as a notice is published in the
Gazette informing the public of its entry into force.
Subsidiary legislation, or implementing regulations, do not require Parliamentary approval but need
only the approval of the responsible Minister. Again, they have no legal power before they are
published in the Gazette. As a rule, principal statutes or Acts of Parliament are used to give legal force
to the principles of policy, but the details of policy implementation, which may require more frequent
revision, are left to the subsidiary legislation. An exception to this rule is the issue of penalties –
although in a context of high inflation fines might be thought to be more appropriately dealt with in
the implementing regulations, the legal norm is that they may not be altered without the consent of
Parliament, and so they are always specified in the principal statutes.
1.5 THE ENVIRONMENT, RURAL LIFE AND LOCAL GOVERNMENT IN THE

MALAWI CONSTITUTION (1995), AND OTHER NATIONAL-LEVEL
STATEMENTS ON THE ENVIRONMENT
The Malawi Constitution of 1995 lays a strong foundation for policy and legal reform in
environmental governance, and it also establishes the improvement of rural living standards as a
national policy objective. In Chapter III – Fundamental Principles - section 13 declares:
“The State shall actively promote the welfare and development of the people of Malawi by progressively
adopting and implementing policies and legislation aimed at achieving the following goals -
(a) To manage the environment responsibly in order to -
(i) prevent the degradation of the environment;
(ii) provide a healthy living and working environment for the people of Malawi;

(iii) accord full recognition to the rights of future generations by means of environmental
protection and the sustainable development of natural resources; and conserve and
enhance the biological diversity of Malawi; and
(iv) conserve and enhance the biological diversity of Malawi.
(b) To enhance the quality of life in rural communities and to recognize rural standards of living
as a key indicator of the success of Government policies.”
The real challenge to all who are involved in NRM in Malawi will be to achieve both of these
objectives simultaneously – to improve the living standards of rural communities without destroying
the environment in the process. Economic development will be a key function of the future local
government structures, and to that extent they will also play a vital role in environmental
management. The principles and objectives of local government are established in Chapter XIV,
section 146, as follows:
(1) There shall be local government authorities which shall have such powers as are vested in them by
this Constitution and an Act of Parliament.
(2) Local government authorities shall be responsible for the representation of the people over whom
they have jurisdiction, for their welfare and shall have responsibility for -
(a) the promotion of infrastructural and economic development, through the formulation and
execution of local development plans and the encouragement of business enterprise;
(b) the presentation to central government authorities of local development plans and the
promotion of the awareness of local issues to national government;
(c) the consolidation and promotion of local democratic institutions and democratic participation;
…
(3) Parliament shall, where possible, provide that issues of local policy and administration be decided
on at local levels under the supervision of local government authorities. …”
There are many other documents that deal with environmental issues at the national level. The most
important of these are the framework National Environmental Policy and the Environment
Management Act, 1996, which are described in Chapter 2, and the various sectoral policies and laws
which follow. But three other publications provide a great deal of background material and should be
considered essential reading for field practitioners:
1.5.1 The National Environmental Action Plan (1994)

The first NEAP, completed in 1994 after two years of work and now due for revision, marked a
milestone in the short history of environmental management in Malawi. The plan was compiled by 18
Task Forces, the membership of which was drawn from government agencies, parastatals, including
the University of Malawi, NGOs and the private sector – altogether 185 people representing 51
institutions. In addition, eight district consultative workshops (with three districts represented at each)
were held to ensure the participation of the wider public. A NEAP Secretariat was employed full-time
to guide the process and help in the production of a draft summary document. Once a summary draft
was available a national workshop was convened and a new process of consultation and review
initiated, until a third and final draft was accepted by the (then) National Committee for the
Environment. It is estimated that in total over 1,300 people contributed to the 1994 NEAP.
Some of the criticisms which have been levelled at the NEAP document may be attributed to this
broad consultative process – it was not produced behind closed doors by experts, and is not therefore
a particularly polished product. But this is also its great strength. None can doubt its universal support
and ownership, and out of the NEAP grew an equally strong National Environmental Policy. The
NEAP marked the birth of participatory policy-making in Malawi, and although no subsequent
initiative has ever quite matched it (none could ever quite afford to) it has permanently altered
changed the way in which such matters are tackled.
The NEAP identified nine key environmental issues: soil degradation; threats to forest, fisheries and
water resources; threats to biodiversity, including wildlife issues; human habitat degradation;

unsustainable population growth, climate change and air quality issues. The Action Plan contains an
analysis of the factors contributing to each of these problems, and of the interactions between them,
and proposes appropriate responses at the policy, strategic and operational levels.
1.5.2 The Environment Support Programme, 1998

The Environmental Support Programme (ESP) grew out of the NEAP and followed a similar process
of consultation. The intention of the ESP was to provide a coherent and inclusive investment
framework within which the Action Plan would be implemented.
“… The ESP has as its overall objective to integrate environmental concerns into the socio-economic
development of Malawi. It is intended to provide an umbrella framework incorporating strategies,
policies and priority programmes to address environmental problems. The ESP incorporates the
actions of many different actors (Government, NGOs, the private sector, donors and communities), all
of which play a crucial role in environmental management in Malawi. The ESP is also designed to
solicit resources to tackle Malawi’s key environmental issues, while providing a framework to help
reduce duplication of effort. …”
Malawi Government (1998) Malawi Environmental Support Programme. Volume I: Context and Programme
description. Environmental Affairs Department, Lilongwe. p. 1.
The format of the document is based on the nine priority environmental issues identified in the NEAP,
with the exception that wildlife has been added as a stand-alone issue in addition to its contribution to
biodiversity. Under each chapter heading a discussion of policy issues is followed by an outline of
priorities for investment, and a description of which parts of the investment programme are currently
funded. The ESP design was initiated in 1995, and the document was published in 1998.
A second part of the ESP is a database of all initiatives in environmental and natural resources
management under way or in the design stage in 1998. The database is classified on the bases of (a)
environmental issues addressed; (b) geographical location (districts); (c) implementing agency, and
(d) funding agency, and contains a great deal of information on the level of investment, technologies
and approaches used, and, where available, success achieved and problems encountered. The database
is a custom application which runs in Microsoft Access, and is available on a single 3.5”DD diskette
from the Environmental Affairs Department.
1.5.3 The State of the Environment Report (1998)

The 1998 State of the Environment Report (SOER) was the first published in accordance with the
EMA (1996) and indeed a first ever for Malawi. As its name implies, the document is a technical
status report and it was not therefore compiled through a broad participatory, but rather through the
expert contributions of national authorities on the environment and natural resources sectors. Its ten
chapters were drafted by senior civil servants (including two departmental Directors) and members of
the University of Malawi, with quality control applied through a multi-sectoral editorial committee.
The Technical Committee on the Environment and the National Council for the Environment
reviewed the technical content of the document.
The two principal purposes of the SOER were (a) to report on the current status of a number of
selected E/NRM indicators, and where possible to present historic time-series data to illustrate trends,
and (b) to report on progress made in implementing the NEAP. The SOER follows the NEAP format
in reporting on eight of the nine key environmental issues (population was omitted). The report
commences with two chapters of a cross-cutting nature: Environment Management in Malawi, which
reviews the current policy, legal and institutional framework for E/NRM, and adds a chapter entitled
“Environment and development” in which interactions between the environment and economic
development trends are analysed.
The first SOER shows up the difference in information status between sectors, in itself a valuable
exercise, and it remains an important benchmark and reference work for future study.

2. ENVIRONMENT MANAGEMENT
Framework Documents Key dates
Principal statute: The Environment Management Act, 1996 August, 1996
Subsidiary legislation:
Policy document: The National Environmental Policy February, 1996
Other publications: The National Environmental Action Plan 1994
Guidelines for Environmental Impact Assessment December, 1997
A Guide to the Environment Management Act, 1997 1997
The Environment Support Programme June, 1998
2.1 THE NATIONAL ENVIRONMENTAL POLICY (1996)
The National Environmental Policy (NEP), developed from the 1994 National Environmental Action
Plan (NEAP) and approved by Cabinet in 1996, was the first clear statement by the Government of
Malawi of the central principles of environmental and natural resource management policy,
developing in more detail the provisions of the new Constitution. The policy elaborates the rights and
responsibilities of individuals and communities in the management of the environment; states
Government’s responsibilities in environmental planning, impact assessment, audit and monitoring,
and outlines primary policy objectives and strategies in a number of key sectors. The development of
the NEP as an umbrella or framework policy was well timed to precede policy reforms in most of the
environment sectors, enabling sectoral reforms to proceed in a harmonised and co-ordinated fashion
rather than as piecemeal developments.
The policy document covers a very broad range of issues and sectors, and is logically organized into
goals/objectives, guiding principles and strategies. The goals and objectives are reproduced here in
order to show the scope and alignment of the NEP: its most important strategies are however
embodied in the Environment Management Act, and this document is explored in more detail in the
following pages.
2.1.1 Goals and Objectives of the National Environmental Policy

(this section follows the NEP chapter headings and reproduces all statements of objectives)
1.0 Preamble
2.0 Policy Goals and Guiding Principles

2.1 Overall Policy Goal
The overall policy goal is the promotion of sustainable social and economic development through the sound
management of the environment in the country.
2.2 Specific Policy Goals
2.2.1 Secure for all persons resident in Malawi now and in the future an environment suitable for their
health and well-being.
2.2.2 Promote efficient utilization and management of the country’s natural resources and encourage,
where appropriate, long-term self-sufficiency in food, fuelwood and other energy requirements.
2.2.3 Facilitate the restoration, maintenance and enhancement of the ecosystems and ecological processes
essential for the functioning of the biosphere and prudent use of natural resources.
2.2.4 Enhance public awareness of the importance of sound environmental understanding of various
environmental issues and participation in addressing them.

2.2.5 Promote co-operation with other Governments and relevant international/regional organizations, local
communities, Non Governmental Organizations (NGOs), and the private sector in the management and
protection of the environment.
3.0 Macro-Economic Policy Issues and Instruments

3.1 Alleviation of poverty
To improve human welfare and effective environmental management through poverty alleviation.
3.2 Economic Incentives for Improved Environmental Management
To ensure that individuals and economic entities are given appropriate incentives for sustainable resource use
and environmental protection.
4.0 Cross-Sectoral Policy Objectives, Principles and Instruments

4.1 Institutions
To create the institutional mechanisms needed to implement a National Environmental Policy.
4.2 Legislation
To create a legal framework for the implementation of the National Environmental Policy and sustainable
environmental management.
4.3 Environmental Planning
To ensure that national, regional and district development plans integrate environmental concerns, in order to
improve environmental management and ensure sensitivity to local concerns and needs.
4.4 Environmental Impact Assessment, Audits and Monitoring
To develop a system and guidelines for environmental impact assessment (EIA), audits, monitoring, and
evaluation so that adverse environmental impacts can be eliminated or mitigated and environmental benefits
enhanced.
4.5 Environmental Education and Public Awareness
To increase public and political awareness and understanding of the need for sustained environmental
protection, conservation and management.
4.6 Private Sector and Community Participation
(a) To mobilize initiatives and resources in the private sector, NGOs and CBOs to achieve sustainable
environmental management, and
(b) To involve local communities in environmental planning and actions at all levels and empower them to
protect, conserve and sustainably utilize the nation’s natural resources.
4.7 Environmental Human Resource Development and Research
(a) To provide training needed to implement a national programme of environmental protection, conservation
and management, and
(b) To carry out the basic and applied demand-driven research needed to support sustainable management of
the environment.
4.8 Gender, Youth and Children
To integrate gender, youth and children concerns in environmental planning decisions at all levels to ensure
sustainable social and economic development.
4.9 Demographic Planning
To ensure that the growth of the country’s population does not lead to environmental degradation.
4.10 Human Settlements and Health
To promote urban and rural housing planning services that provide all inhabitants with a healthy environment.
4.11 Air Quality and Climate Change
To minimize the adverse impact of climate change and to reduce air pollution and greenhouse gas emissions.
4.12 Conservation of Biological Diversity
To conserve, manage and utilize sustainably the country’s biological diversity (ecosystems, genetic resources
and species) for the preservation of the National Heritage.

4.13 Land Tenure and Land Use

To promote sustainable use of the land resources of Malawi, primarily, but not exclusively, for agricultural
purposes by strengthening and clearly defining security of tenure over land resources.
5.0 Sectoral Policy Objectives, Principles and Instruments

5.1 Agriculture and Livestock
To promote environmentally sound agricultural development by ensuring sustainable crop and livestock
production through ecologically appropriate production and management techniques, and appropriate legal and
institutional framework for sustainable environmental management.
5.2 Forestry
To manage forestry resources endowment in a sustainable manner to maximise benefits to the nation.
5.3 Fisheries
To manage fish resources for sustainable utilization, reduction [production?] and conservation of aquatic
biodiversity.
5.4 National Parks and Wildlife
To conserve and manage [wildlife in] National Parks, Wildlife Reserves and outside protected areas in such a
way as to ensure their protection, sustainable utilization, and reduction of people/wildlife conflicts.
5.5 Water Resources
To manage and use water resources efficiently and effectively so as to promote its conservation and
availability in sufficient quantity and acceptable quality.
5.6 Energy
To meet national energy needs with increased efficiency and environmental sustainability.
5.7 Industry and Mining
To ensure that industrial and mining activities conform to sustained natural resource utilization and protection
of the environment.
5.8 Tourism
To conserve and manage sustainably the nation’s unique tourist attractions.
5.9 Other Sectors
To ensure that all sectors of the economy optimise use of environmentally friendly technologies and undertake
mitigation measures for adverse environmental impacts.
2.2 THE ENVIRONMENT MANAGEMENT ACT (1996)

“An Act to make provision for the protection and management of the environment and the conservation
and sustainable utilization of natural resources and for matters connected therewith and incidental
thereto”
The Environment Management Act (1996) (the EMA) is the instrument through which the NEP is
implemented. It gives strength to the principles outlined in the NEP, to the extent that wherever
sectoral legislation conflicts with the EMA the latter shall take precedence. It provides for the creation
of regulations on all aspects of environmental management, so that gaps or inconsistencies in sectoral
legislation may be easily rectified. It creates, for the first time, a firm legal framework for
environmental impact assessment and environmental audit. Most importantly, it establishes a National
Council for the Environment with considerable powers to mediate in situations of conflict, and it
accords to the Environmental Affairs Department responsibility for the co-ordination of
environmental monitoring, interventions and investments in the environment/natural resources sectors
as well as environmental education and awareness-raising. Just as the NEP provides a structural
framework for policy development across many sectors, so the EMA provides a legal framework for
the development of new sectoral legislation. The Act is structured as follows:

Part I – Preliminary
This part defines the short title (the Environment Management Act) (section 1) and provides a legal
interpretation of the many technical terms used (section 2). The definitions of such fundamental
concepts as “biological diversity”, “conservation”, “environment”, “pollution” and “waste” are clear
and useful.
Part II – General Principles

Part II contains powerful clauses which define the rights and responsibilities of individuals, the
ownership of natural resources and the relationship between the EMA and other relevant legislation. It
commences with a statement of the duty of all individuals to protect the environment:
“3.-(1) It shall be the duty of every person to take all necessary and appropriate measures to protect and
manage the environment and to conserve natural resources and to promote sustainable utilization of
natural resources …”
The following section builds on section 13 (d) of the Constitution, defining popular ownership of
Malawi’s natural resources:
“4. The natural and genetic resources of Malawi shall constitute an integral part of the natural wealth of the
people of Malawi and –
(a) shall be protected, conserved and managed for the benefit of the people of Malawi; and
(b) save for domestic purposes, shall not be exploited or utilized without the prior written authority
of the Government.”
Subsection (b) above reads rather like a passage from past NRM legislation, in which Government
was the sole manager of natural resources and granted licences for commercial utilization. But it also
paves the way for the new generation of policies and laws which provide for the devolution of
management powers on the basis of legally binding management agreements (see chapters 6 (forestry)
and 7 (fisheries), below).
“5.-(1) Every person shall have a right to a clean and healthy environment.”
This section is not mere rhetoric. Subsections 5 (2) to 5 (4) provide individuals who believe this right
has been infringed by the actions of others with opportunity of seeking redress through the High Court
or complaining in writing to the Minister responsible for environmental affairs.
Section 6 states that the EMA does not over-ride the ongoing responsibilities or powers of lead
agencies within the various NRM sectors:
“6. Nothing in this Act shall be construed as divesting any lead agency of the powers, functions, duties or
responsibilities conferred or imposed on it by any written law relating to the protection and
management of the environment and the conservation and sustainable utilization of natural resources or
limiting such powers, functions, duties or responsibilities.”
But …
“7. Where a written law on the protection and management of the environment and the conservation and
sustainable utilization of natural resources is inconsistent with any provision of this Act, that written law
shall be invalid to the extent of the inconsistency.”
In other words, in any conflict between the EMA and other sectoral NRM legislation, the EMA will
always take precedence. It is this provision that makes the EMA such a powerful tool for the
harmonization of E/NRM legislation. In practice much of the sectoral legislation has been or is being
revised after the enactment of the EMA, and considerable care has been taken to ensure that such
conflicts do not arise. Section 7 does not mean that the EMA is perfect, however, and it is envisaged
that once the Act has been in use for long enough for any shortcomings to become apparent it will
itself be amended accordingly.

Part III – Administration

This part of the Act, sections 8 to 20, lists the duties of the Minister, establishes the National Council
for the Environment (NCE) and the Technical Committee on the Environment and otherwise defines
the institutional context for environmental management. It establishes the post of Director of
Environmental Affairs and District Environmental Officers (EDOs – to distinguish them from District
Education Officers, or DEOs), and lists their principal responsibilities. Importantly, section 19 places
additional responsibilities on District Development Committees in relation to the environment.
In describing the duties of the Minister, section 8 really lays down the functions of the Environmental
Affairs Department:
“8.-(1) It shall be the duty of the Minister to promote the protection and management of the environment
and the conservation and sustainable utilization of natural resources, and the Minister shall, in
consultation with lead agencies, take such measures as are necessary for achieving the objects of
this Act.
(2) without prejudice to the generality of the foregoing, the Minister shall –
(a) formulate and implement policies …
(b) co-ordinate and monitor all activities concerning the protection and management of the
environment and the conservation and sustainable utilization of natural resources;
(c) prepare plans and develop strategies …, and facilitate co-operation between the Government,
local authorities, private sector and the public in the protection and management of the
(d) initiate, facilitate or commission research and studies …;
(e) prepare and lay before the National Assembly at least once in every year a report on the state
of the environment;
(f) co-ordinate the promotion of public awareness …;
(g) monitor trends in the utilization of natural resources …;
(h) receive and investigate any complaint …;
(i) recommend to the Government … international or regional treaties, conventions or agreements
… to which Malawi should become party;
(j) promote international and regional co-operation …;
(k) … prescribe, by notice published in the Gazette, projects or classes or types of projects, for
which environmental impact assessment is necessary under this Act;
(l) … prescribe, by notice published in the Gazette, environmental quality criteria and standards ;
(m) carry out such other activities and take such other measures as may be necessary or
expedient for the administration and achievement of the objects of this Act. …”
Section 9 establishes the office of Director of Environmental Affairs (DEA) and “such other suitably
qualified public officers as may be required for the proper administration of this Act.” The DEA is responsible
to the Minister for the discharge of duties defined in the Act (under section 8, above), and is also
required to provide information or documents to the National Council for the Environment and to
brief the Council periodically on the status of the environment and natural resources.
The establishment of the NCE itself, and its functions, responsibilities and mode of operation are
detailed in sections 10 to 15. The Chairman of the NCE is appointed by the President, and its
membership includes the Secretary to the President and Cabinet (or his representative); all Principal
Secretaries (or their representatives); the General Managers of the Malawi Bureau of Standards and
the National Herbarium (or their representatives), one representative of the University of Malawi and
three members nominated by the Malawi Chamber of Commerce and Industry, environmental NGOs
and the National Council for Women in Development, respectively. The DEA acts as Secretary to the
NCE.
The NCE is required to meet at least four times each year. Its functions are described in section 12:

“12.– The Council shall –

(a) advise the Minister on all matters and issues affecting the protection and management of the
(b) recommend to the Minister measures necessary for the integration of environmental
considerations in all aspects of economic planning and development;
(c) recommend to the Minister measures necessary for the harmonization of activities, plans and
policies of lead agencies and non-governmental organizations concerned with the protection
and management of the environment and the conservation and sustainable utilization of
natural resources.”
Sections 16 to 18 deal with the establishment and operations of the Technical Committee on the
Environment (TCE). The TCE acts as a technical body to advise the NCE, and is composed of
recognized experts who are appointed by the Minister in their personal capacity. In practice, the TCE
spends much of its time considering and advising on environmental impact assessments produced by
prospective developers.
Sections 19 and 20 describe the responsibilities of District Development Committees and District
Environmental Officers, respectively. In brief, DDCs are assigned the duty to prepare a District
Environmental Action Plan (DEAP) once every five years, and a district state of the environment
report (DSOER) every two years (although many feel that this period should be revised upwards).
EDOs are required to guide the DDCs through both of these processes, and otherwise to act as
collectors and disseminators of environmental information, maintaining a flow of information in both
directions between national environmental institutions (the DEA, the NCE and the Minister) and the
public.
“19. A District Development Committee shall, in addition to its existing role-
(a) under the supervision of the District Environmental Officer, prepare every five years a district
environmental action plan;
(b) co-ordinate the activities of lead agencies and non-governmental organizations in the protection
and management of the environment and the conservation and sustainable utilization of natural
resources in the district;
(c) promote and disseminate information relating to the environment through public awareness
programmes and prepare reports on the state of the environment in the district every two years at
least two months before the end of each second calendar year.”
“20.-(1) There shall be appointed for each district a District Environmental Officer who shall be a public
officer.
(2) The District Environmental Officer shall be a member of the District Development Committee and
shall-
(a) advise the District Development Committee on all matters relating to the environment and in
the performance of its functions under section 19;
(b) report to the Director on all matters relating to the protection and management of the
(c) submit such reports to the Director as the Director may require;
(d) promote environmental awareness in the district on the protection and management of the
(e) gather and manage information on the environment and the utilization of natural resources in
the district; and
(f) perform such other functions as the Director may, from time to time, assign to him.”
These sections are discussed further under the heading Roles and responsibilities of district-level
public officers and institutions, on page 3:5.

Part IV – Environmental Planning

This Part of the EMA deals with national and district level environmental action plans. It is brief and
very clear, and is reproduced here in full:
“21. The Minister shall lay before the National Assembly a copy of the National Environmental Action Plan for
approval at its next meeting after the commencement of this Act and the Minister shall thereafter
review it every five years subject to approval by the National Assembly.
“22. The purpose of the National Environmental Action Plan shall be to promote and facilitate the integration
of strategies and measures for the protection and management of the environment into plans and
programmes for the social and economic development of Malawi. ”
“23.-(1) The district environmental action plan prepared under section 19 (a) shall-
(a) be in conformity with the National Environmental Action Plan;
(b) identify environmental problems in the district in question;
(c) be approved by the Minister on the recommendation of the Council; and
(d) be disseminated to the public by the District Development Committee.
(2) No person shall implement a development activity or project in any district otherwise than in
accordance with the district environment[al] action plan for the district in question.”
Part V – Environmental Impact Assessment, Audits and Monitoring

The system for environmental impact assessment is set out in sections 24 to 26 of the EMA:
“24.-(1) The Minister may, on the recommendation of the Council specify, by notice published in the
Gazette, the types and sizes of projects which shall not be implemented unless an environmental
impact assessment is carried out.
(2) A developer shall, before implementing any project for which an environmental impact assessment
is required under subsection (1), submit to the Director, a project brief stating in a concise
manner-
(a) the description of the project;
(b) the activities that shall be undertaken …
(c) the likely impact of those activities on the environment;
(d) the number of people to be employed …
(e) the segment or segments of the environment likely to be affected …
(f) such other matters as the Director may in writing require …”
“25.-(1) Where the Director considers that sufficient information has been stated in the project brief under
section 24, the Director shall require the developer, in writing, to conduct, in accordance with such
guidelines as the Minister may, by notice published in the Gazette prescribe, an environmental
impact assessment and to submit to the Director, in respect of such assessment, an environmental
impact report …
(3) The environment impact assessment report shall be open for public inspection…”
“26.-(1) Upon receiving the environmental impact assessment report, the Director shall invite written or oral
comments from the public thereon, and where necessary may-
(a) conduct public hearings … for the purpose of assessing public opinion thereon;
(b) require the developer to redesign the project … taking into account all the relevant
environmental concerns …
(c) require the developer to conduct a further environmental impact assessment of the whole
project or such part … as the Director may deem necessary;
(d) recommend to the Minister to approve the project subject to such conditions as the Director
may recommend to the Minister. …
(3) A licensing authority shall not license under any written law with respect to a project for which an
environmental impact assessment is required under this Act unless the Director has certified in

writing that the project has been approved by the Minister under this Act or that an environmental
impact assessment is not required under this Act.”
The sections above outline the basic steps to be taken by both a prospective developer and the
Government:
• scrutiny of the list of prescribed projects for which an EIA is or may be required (as published
in the EIA Guidelines of December 1997);
• submission of a Project Brief to the DEA;
• determination by the DEA of the adequacy of the Project Brief and the need for an EIA (and
in many cases the provision of technical advice on the Terms of Reference for an EIA);
• implementation of the EIA and submission of the EIA report to the DEA;
• public consultation on the EIA report, possibly resulting in a requirement for additional work;
• assessment of the adequacy of the EIA report (by the TCE), again with the possible
requirement for further modification;
• consideration of the final draft EIA report by the NCE, resulting in the Council’s
recommendation for approval (or otherwise by) the Minister, and
• Ministerial approval for the project to proceed.
Section 27 empowers the DEA to carry out or commission, in consultation with an appropriate lead
agency, periodic environmental audits of any project. An environmental audit is in essence a detailed
inspection, and its usual purpose is to ensure that a developer remains in compliance with the
measures agreed to mitigate any potentially adverse environmental impacts presented in an EIA
report. Under this provision the DEA may also require the developer to maintain and submit
appropriate records. Further, a developer is also obliged to take all reasonable measures to mitigate
undesirable environmental impacts that were not foreseen in the EIA.
Section 28 refers to projects that were already under way at the date that EIA became a legal
requirement: here the DEA is empowered to take such measures as are necessary to ensure that project
implementation complies with the provisions of the EMA.
Part VI – Environmental Quality Standards

Part VI – section 30 – allows the Minister to prescribe environmental quality standards, for example
for air, water, soil, noise, vibrations, radiation, effluent and solid waste. Such standards are to be
based on scientific principles, should take into account the practical issues of ensuring compliance,
and may varied geographically within Malawi.
Part VII – Environmental Management

Part VII of the EMA gives the Minister powers to undertake three kinds of action in support of
E/NRM. Section 31 provides for the “determination of fiscal incentives”. Section 32 gives the Minister to
declare any area which is in need of special protection and which is not already a National Park,
Wildlife Reserve or Forest Reserve to be an “environmental protection area”. Under section 33 the
Minister is given the power to prevent or arrest any act which has or is likely to have adverse
environmental consequences by issuing an “environmental protection order” against the person or
persons responsible. An environmental protection order may in addition require the payment of
compensation “to any person whose land is degraded by the action or conduct of the person against whom the
environmental protection order is made.” Section 33 gives the DEA (and, by delegation, his staff)
extensive powers of entry and inspection, and specifies the right of a person on whom an
environmental protection order is served to appeal to the Tribunal established under section 70 (see
Part XII, below).
Sections 35 to 41 accord to the Minister the power to make rules and regulations and otherwise
exercise control over various matters including the conservation of biological diversity, access to

genetic resources, waste management, including the import and export of hazardous waste, the
classification of pesticides and other hazardous substances and the protection of the ozone layer.
Part VIII – Pollution Control

Sections 42 to 44 provide for controls over effluent discharges and gaseous emissions, but do allow
the licensing of such activities under conditions defined by the Minister. Section 44 is particularly
short and simple:
“44. No person shall pollute or permit or cause any other person to pollute the environment.”
Part IX – Inspection, Analysis and Records

Sections 45 to 47 specify the powers of environmental inspectors as agents for ensuring compliance
with the provisions of the EMA. Inspectors are required to carry identity cards, which must be
produced on request, and are accorded powers of entry, access to relevant records and documents and
also the power to take samples for analysis. The designation of approved laboratories, the
appointment of analysts and the form of certification for analytical results are detailed in sections 48
to 50.
Section 51 empowers the DEA to require, through publication in the Gazette, the maintenance and
regular submission of records for certain kinds of activity, for the purposes of environmental auditing
and monitoring. Section 52 defines the public nature of such information, save in instances where the
information is of a proprietary or commercially sensitive nature.
Part X – Environmental Fund

Part X of the EMA, sections 53 to 60, establishes and lays down a procedural framework for the
Environmental Fund, a fund to be used at the discretion of the Minister for the protection of the
environment and to support the conservation and sustainable utilization of natural resources. The fund
may be financed by Parliamentary appropriations, advances from the Ministry of Finance, voluntary
contributions and “fees or other penalties in respect of licenses issued under this Act”.
Although several other mechanisms for financing environmental initiatives are in preparation,
including the Malawi Environmental Endowment Trust, the Environmental Fund will remain
independent of these and may be used to finance any action or venture which the Minister considers
important. The Fund accounts will be maintained in accordance with the Finance and Audit Act, and
will be audited by the Auditor General.
Part XI – Offences
Sections 61 to 67 define various offences under the EMA and specify a wide range of penalties up to a
maximum of K1,000,000 and imprisonment for ten years.
Part XII – Legal Proceedings

Section 68 confers immunity from legal proceedings to the Minister, the DEA, environmental
inspectors, analysts or any others to whom authority under the EMA has been delegated in respect of
anything done in good faith under the provisions of the Act.
Sections 69 to 74 establish an Environmental Appeals Tribunal to which anyone aggrieved by
decisions or actions taken under the EMA may appeal. Typical examples might include developers
whose projects have been rejected on the basis of an environmental impact assessment, or individuals
who believe themselves to have been unfairly treated in respect of an environmental protection order.
The Tribunal will comprise three technically knowledgeable individuals appointed by the President on
the recommendation of the Minister, and decisions will be by simple majority.
Section 75 specifies that in the case of an offence committed by a corporate body, all directors and
similar office bearers (or in the case of a partnership each partner) will be deemed guilty of the

offence, unless an individual can prove that he was unaware of the offending act or had attempted to
prevent it.
Part XIII – Miscellaneous Provisions

This final part of the EMA consists of only two sections. Section 76 gives the DEA powers to close
any premises which he reasonably believes to have been used in contravention of the Act. Section 77
states that the Minister may make regulations for the better carrying out of the purposes of the Act.

3. DECENTRALIZATION AND NATURAL RESOURCES

MANAGEMENT
Framework Documents Key dates
Principal statute: The Local Government Act, 1998 December, 1998
Policy document: The National Decentralization Policy October, 1998
Other publications: Malawi: Decentralization Policy August 1996
Implementation (Capacity Assessment and
Resource Needs Study). GoM/UNDP
3.1 THE NATIONAL DECENTRALIZATION POLICY (1998) AND THE LOCAL

GOVERNMENT ACT (1998)
3.1.1 Approach
The National Decentralization Policy (NDP) will, when fully implemented, transform not only what
has traditionally been thought of as district administration, but also many of the functions which until
now have been the responsibility of central Government institutions. This section of the manual
explains the structure and functions of the future decentralized administration and its relationship to
the technical Departments and Ministries of central Government. The emphasis here is on
administrative changes which have general implications for environment and natural resources
management, and large parts of the Local Government Act (LGA) – for instance Parts VI, which deals
with financial provisions, and VII, which deals with valuation and rating – are not discussed in any
detail. As far as possible the explanation provided here makes use of verbatim extracts from the
Policy (Univers Condensed Font Size 10) and the Act (Tahoma Font Size 9), and any other
documents used to assist in interpretation are quoted by source. The following section discusses more
specific issues affecting the roles of public officers and other professionals working in natural
resources management at district level, and explores the framework defined jointly by the Local
Government Act and the Environment Management Act.
3.1.2 Objectives of the decentralization policy

“The policy:-
(a) devolves administration and political authority to the district level;
(b) integrates governmental agencies at the district and local levels into one administrative unit, through the process of
institutional integration, manpower absorption, composite budgeting and provision of funds for the decentralised
services; …” [NDP section 2 – The Policy]
“The objectives of local government shall be to further the constitutional order based on democratic
principles, accountability, transparency and participation of the people in decision-making and development
processes.” [LGA section 3.]
3.1.3 New structures at district level

“The new local government system will be made up of District Assemblies. Cities and Municipalities will be “districts in their
own right”. The District Assemblies will have powers to create committees at Area, Ward or Village level for purposes of
facilitating participation of the people in the Assembly’s decision making.” [NDP section 4 – Structure of the New Local
Government System]
The District Assembly will be the new instrument of democratic local government, and will consist of
one elected member from each ward in the local government area; Traditional Authorities and Sub-

Traditional Authorities (who shall not have voting powers), members of Parliament (also non-voting)
and five non-voting persons to be appointed by the Assembly to cater for the interests of special
interest groups. The Assembly will be served by a Secretariat: a body of public officers headed by a
Chief Executive and responsible for implementing the resolutions of the Assembly and performing its
day to day executive and administrative functions. The Secretariat will incorporate Government
departments responsible for providing services within the district, including public amenities,
education, health, water and various rural extension services. This is a fundamental change from the
present system: heads of departments at district level will in future be the direct subordinates of the
Chief Executive, not of their parent Ministries. Since the Chief Executive is himself directed by the
elected Assembly, the new system will for the first time render public servants directly accountable to
the population they serve.
Sections 5 to 13 of the LGA deal with the constitution and proceedings of the Assembly, including
membership, functions, the election of office-bearers, the procedure for holding meetings (including
the requirement for a one-third quorum of elected members) and disclosure of interest.
3.1.4 Functions of the District Assembly

Section 6 of the LGA lists the functions of the Assembly as follows:
“6.-(1) The Assembly shall perform the following functions –
(a) to make policy and decisions on local governance and development for the local government
area;
(b) to consolidate and promote local democratic institutions and democratic participation;
(c) to promote infrastructural and economic development through the formulation, approval and
execution of district development plans;
(d) to mobilize resources within the local government area for governance and development;
(e) to maintain peace and security in the local government area in conjunction with the Malawi
Police Service;
(f) to make by-laws for the good governance of the local government area; …”
The Second Schedule to the LGA lists certain additional functions, some of them normally associated
with local government authorities, others more often seen as tasks of central government. The
marginal note for section 2 of the Second Schedule is “Environmental protection”, but most of this
section is concerned with issues of sanitation and public health. However, sub-section 2 (6) makes
specific reference to river pollution and streambank cultivation:
“2.-(6) Subject to the provisions of any other written law, an Assembly shall be responsible for the draining,
cleansing and sanitation of its area and the prohibition and control of pollution of any water in any
river or stream and for this purpose may prohibit or regulate the use of any such river or stream
and any river-bank or streambank including any cultivation therein or the extraction of any sand,
gravel or other material therefrom.”
Sections 3 to 20 of the Second Schedule deal with a wide variety of matters ranging from public
health to roads, emergency services, building regulations and planning. Section 21 outlines the
requirement for district development planning, including specific reference to environmental
planning. Section 21 is clearly compatible with section 19 of the EMA, which requires the District
Development Committee to prepare 5-yearly District Environmental Action Plans:
“21.-(1) An Assembly shall have a duty to draw up plans for the social, economic and environmental
development of the area for such periods and in such form as the Minister may prescribe.
(2) Development plans shall be prepared in conjunction and consultation with other agencies having a
public responsibility for or charged with producing plans for development whether generally or
specifically and affecting the whole or a substantial part of the Assembly.”
Section 22 is of particular importance, as it lists those functions of central Government which will be
transferred to the control of District Assemblies:
“22. The Assembly shall perform the following functions – …

(e) taking charge of all decentralized services and activities which include but are not limited to-
(i) crop, animal and fisheries husbandry extension services; …
(vii) district planning;
(viii) local government development planning;
(ix) land administration; …
(xii) forests and wetlands; …
(f) regulate, control, manage, administer, promote and licence any of the things or services which
the Assembly is empowered or required to do, and establish, maintain, carry on, control,
manage or administer and prescribe the forms in connection therewith to fix fees or charges to
be levied in that respect; …
(g) assist government to preserve the environment through protection of forests, wetlands, lake
shores, streams and prevention of environmental degradation; …”
Under section 6 of the LGA, sub-section (3) allows the Minister to exempt District Assemblies from
any of the functions listed in the Second Schedule if they so request, and sub-section (4) allows the
Minister to amend the Second Schedule.
3.1.5 Working modalities

Part IV of the LGA (sections 14 to 23) sets out how the District Assemblies will discharge their
functions. Much of this part is concerned with the establishment of working (or service) committees:
“14.-(1) The Assembly shall establish the following committees-
(a) the Finance Committee;
(b) the Development Committee;
(c) the Education Committee;
(d) the Works Committee;
(e) the Health and Environment Committee; and
(f) the Appointments and Disciplinary Committee.
(2) The Assembly may establish other committees at a local government area level.
(3) The Assembly may establish such other committees at ward, area or village level as it may
determine.
(4) The composition of service committees and the committees established under subsections (2) and
(3) shall be determined by the Assembly.
(5) A service committee or other committee established under subsections (2) and (3) may in its
discretion at any time and for any period invite any person to attend any meeting of such
committee and take part in the deliberations at the meeting, but such person shall not be entitled
to vote at the meeting.”
Note that the composition of the committees is left for the Assembly itself to determine. Committees
may appoint sub-committees, and unless directed otherwise by the Assembly may arrange for specific
functions to be delegated to sub-committees or to individual officers. Two or more Assemblies may
decide to discharge certain functions jointly, and under sections 15 and 16 of the LGA are empowered
to appoint joint committees for this purpose.
Although the Assembly represents its electorate and has considerable freedom to determine its own
affairs, it is not permitted to take actions which are unlawful or run contrary to national policies;
neither is it permitted run at a financial loss beyond approved borrowing. Under section 20 the Chief
Executive has a responsibility to monitor the decisions of the Assembly and to bring to the
Assembly’s attention any proposed course of action which might be improper. Further, the Minister
responsible for Local Government is empowered under section 21 to order an Assembly to desist from
an improper course of action and, in the event of non-compliance with such an order, to suspend the
Assembly pending a judicial review by the High Court. If in such circumstances the High Court

declares the Assembly’s actions to be unlawful or contrary to national policies, the President will
dissolve the Assembly and new elections will be held within 90 days.
The important point here is that District Assemblies will be bound by national policy, rather than
national policy becoming the lowest common denominator of district policies. The role of central
Government Ministries as policy-makers is not altered by the LGA.
3.1.6 Powers and financing of the Assembly

Part V of the LGA (sections 24 to 43) defines a broad range of powers to be enjoyed by District
Assemblies. These include the power to borrow or lend money (in accordance with the Finance and
Audit Act); to acquire or dispose of land and other property; to employ staff and determine their
salaries and conditions of service, and to enter into contracts for the supply of goods or services.
These powers are linked to responsibilities – to provide public access to local government
information, to publish an annual report of activities and finances and generally to behave in a
transparent and publicly accountable manner.
District Assembly financing and financial management are provided for in Part VI of the LGA
(sections 44 to 60) and in the Third Schedule to the Act. The Third Schedule lists sources of revenue
for the Assembly as follows:
“1. Locally generated revenue which shall include but shall not be limited to:-
(1) Property rates;
(2) Ground rent;
(3) Fees and licences;
(4) Commercial undertakings; and
(5) Service charges.
2. Government Grants.
3. Ceded revenue.” [NB ceded revenue is non-tax revenue collected by Government, e.g. various
licence fees, road fuel levy, etc.]
Part VI otherwise defines the modalities for the maintenance and auditing of accounts in accordance
with the Finance and Audit Act, the submission of expenditure estimates and their approval by a
Local Government Finance Committee, and includes various provisions to ensure sound and
transparent financial management. Sections 57 and 58 are of particular interest:
“57. All external assistance to the Assembly shall, except assistance from a sister city, be routed through the
Ministry of Finance.
58. Any assistance to the Assembly from a Non-Governmental Organization shall be approved by the
Minister in consultation with the Assembly.”
Local taxation, in particular the raising of rates and ground rents on land and property, is expected to
play an important role in meeting the Assembly’s recurrent expenditure requirements. Part VII of the
LGA (sections 61 to 91) deals with valuation and rating. The final Parts VIII (General Provisions
Relating to the Assembly: sections 92 to 107) and IX (Miscellaneous Provisions: sections 108 to 114)
set out further procedures and powers, including the right of the Assembly to sue (or be sued) in its
own name; the serving of notices; the powers of Assembly officers; the right to create by-laws; the
acquisition of Municipality or City status, honorary appointments, and penalties. The last section, 114,
repeals the Local Government (Urban Areas) Act and the Local Government (District Councils) Act,
and states that subsidiary legislation made under the repealed Acts shall remain in force unless in
conflict with the LGA and until replaced by new subsidiary legislation.

3.2 ROLES AND RESPONSIBILITIES OF DISTRICT-LEVEL PUBLIC OFFICERS

AND INSTITUTIONS
3.2.1 Overview
Together, the LGA and the EMA prescribe a number of responsibilities for public officers (and also
for members of NGOs if they should be also be members of the DDC) over and above their current
roles in implementing national-level sectoral policies. Firstly, they confer specific responsibilities on
District Development Committees, in environmental planning, in the coordination of E/NRM
initiatives and in raising public awareness. Secondly, the altered institutional framework embodied in
the LGA will require a new style of management and some structural reorganization in sectoral
ministries at district level, and both the LGA and the EMA imply or explicitly confer some additional
responsibilities on district department heads. Finally, the EMA lays down a number of specific
functions to be fulfilled by EDOs, some of which will now require revision to fit the decentralized
structure.
3.2.2 Roles and responsibilities of the District Development Committee

It is important to clarify the difference between the present DDC, which in many respects resembles a
prototype (though unelected) District Assembly, and the Development Committee established by
section 14 (1) (b) of the LGA. The latter is a service committee of the DA and will be composed of
Assembly members and (most probably) co-opted members. The functions of the Development
Committee are not specified in the LGA. It is inferred, though, that the Assembly’s responsibility for
district development planning as detailed in sections 6 and 21 will be delegated to the DDC. District
Development Plans are required to cater for the infrastructural, social, economic and environmental
development of the district or local government area, and must be prepared in consultation with other
agencies with public responsibility for development planning within the area.
Section 19 of the EMA confers additional and more specific responsibilities on the former DDC:
• Firstly, the DDC is required to produce a district environmental action plan (DEAP) every five
years. Ideally, the DEAP would be developed as an integral part of the District Development Plan
– this would work only if the two plans were to cover the same time period, a requirement which
would need the co-operation of the Minister responsible for local Government (who has the power
to prescribe the period for district development planning).
A DEAP must be aligned to the National Environmental Action Plan, must identify environmental
problems within the district and must be approved by the Minister responsible for environmental
affairs on the recommendation of the NCE. The implementation of any development activity or
project other than in accordance with the DEAP is an offence under the EMA, and it is the
responsibility of the DDC to disseminate the contents of the DEAP to the public.
• Secondly, the DDC is required to prepare a report on the state of the environment (SOER) within
the district every two years. This is a considerable task, and there is some merit to the view that
state of the environment reporting should be seen as part of the environmental action planning
process, and that it should therefore fit within the same five-year cycle. This would require an
amendment to the EMA.
• In relation to the preparation of DEAPs and district level SOERs it should be noted that section 20
of the EMA states that the EDO will be a member of the DDC and will have a responsibility to
support and advise this committee in undertaking these tasks.
• Also included, as a task for the DDC under the EMA is the district level co-ordination of lead
agencies and NGOs involved in environment and natural resources management. Although co-
ordination is seen more typically as a role of the EAD it should be remembered that the
Department is represented at district level by the EDO, who may be junior to the heads of larger
Departments. Making the DDC responsible for co-ordination within the environmental fields is

good institutional practice and will also help to build sensitivity to environmental issues within
the DDC itself.
• Finally, the DDC is required to implement public awareness programmes in order to engage
popular support for good practice in environment and natural resources management.
It will be necessary to rationalise sections 19 and 20 of the EMA to accommodate the local
government structure defined in the LGA, since the DDC will no longer exist in its original form.
Specifically, it will be necessary to assign responsibility for the production of DEAPs and SOERs,
and the other environmental roles described in section 19, to one or another of the new institutions
established in the LGA. It may well be that the Assembly itself should be given these responsibilities,
or otherwise the Development Committee established under the Assembly. In either event, it should
be noted that the EDO will not be able to “supervise” the work of the Assembly, as the wording of
subsection 19 (a) of the EMA currently runs. Secondly, it will be necessary to assign a new
institutional location for the EDO under section 20. It would not seem appropriate here to replace
“DDC” by “Assembly”. It may be preferable to replace the reference to the EDO’s membership of the
DDC by a simple statement of this officer’s role in support of the Assembly’s responsibilities in the
domain of the environment. In this case the Assembly would be free to choose whether to co-opt the
EDO onto the Development Committee or to give the EDO a position within a technical sub-
committee to the Development Committee.
The LGA also establishes a Health and Environment Committee. There is a blurred and sometimes
confusing distinction between “environmental health” and environment, a good example of which
appears in the Second Schedule to the LGA. Here, riverbank management and pollution control are
listed alongside sanitation and the destruction of vermin in section 2 (Environmental Protection),
while other NRM functions and conservation of the environment are listed in section 22 (Other
Functions). It will be necessary to clarify the split of responsibilities here. It is evident, however, that
environmental and natural resources planning and management are appropriately placed alongside
social and economic development planning, and should remain functions of the DDC (or its appointed
sub-committee) and not of the Health and Environment Committee.
3.2.3 General roles and responsibilities of all E/NRM professionals

The decentralization process defines a new institutional framework for line agencies at the district
level, but does not in itself alter the roles of public officers. However, at least one additional role may
be inferred from the new institutional arrangement, and the EMA also places general responsibilities
on all professionals in the E/NRM fields.
The new relationships between district-level public officers, their parent ministries and the Assembly
and its Secretariat are summarised in the following extract from the report of the Capacity Assessment
and Resource Needs Study of August 1996:
“Heads of Departments of the District Assemblies will be directly responsible to the Chief
Executive and through to the Assembly. They will no longer be controlled or directed by the
ministries. They will be answerable for their day to day operations to the Chief Executive and to
the Assembly for all [district governance] policy. However, they will retain relationships with their
parent ministries on all matters relating to professional standards and training, and, from time to
time, their current ministries will visit Assembly departments for inspection as part of the
continuous monitoring process.”
Malawi: Decentralization Policy Implementation (Capacity Assessment and Resource Needs Study).
GoM/UNDP, August 1996. Section 4.3.2, p.65
The Ministries/Departments to be decentralized in this way include: Health; Education; Lands,

Housing, Physical Planning and Surveys; Fisheries; Forestry; Agriculture (including Animal Health
and Industry and Irrigation); Works and Supplies; Water; Community Development; Commerce and
Industry; Tourism; Environmental Affairs (EDOs only). Section 11.2 of the National Decentralization
Policy lists those functions of line ministries which will not be decentralized:

“Line ministries will retain responsibility over the following areas: policy formulation, policy enforcement, inspectorate,
establishment of standards, training, curriculum development, international representation, etc. In undertaking this
responsibility, line ministries will have direct links with local authorities as instruments of service delivery over
professional and operational issues. However, policy and other issues affecting all local authorities as instruments of local
government and development will be channelled through the Ministry of Local Government.”
It is inferred from the above that since national policies for the environment and natural resources
apply to all local authorities, it will be the responsibility of sectoral Ministries to make the relevant
policies and legislation available to the Ministry of Local Government for onward transmission to the
Assemblies. But at district level the department heads will be expected to know their own sectoral
policies, and they will be responsible for bringing them to the attention of the Assembly in the course
of district development planning or at any other time when decisions involving the sectors are made.
Section 3 of the EMA lists five self-explanatory general requirements which apply to all public
officers in each of the E/NRM sectors:
“3.-(2) Without prejudice to the generality of subsection (1), every person required under any written law to
exercise power or perform functions relating to the protection and management of the environment
or the conservation and sustainable utilization of natural resources shall take such steps and
measures as are necessary for-
(a) promoting a clean environment in Malawi;
(b) ensuring the sustainable utilization of the natural resources of Malawi;
(c) facilitating the restoration, maintenance and enhancement of the ecological systems and
ecological processes essential for the functioning of the biosphere, and the preservation of
biological diversity;
(d) promoting public awareness and participation in the formulation and implementation of
environmental and conservation policies of the Government;
(e) promoting co-operation with foreign governments and international or regional

organizations in the protection of the environment and the conservation and sustainable
utilization of natural resources;
(f) promoting scientific research, technological development and training relating to the
protection and management of the environment and the conservation and sustainable
utilization of natural resources.”
Finally, some sectoral statutes confer responsibilities on public officers employed in sister
departments. Thus:
• For the purposes of the Fisheries Conservation and Management Act, 1997, fisheries protection
officers include not only fisheries officers but also members of the Malawi Police Force, forest
officers, wildlife officers, environmental officers and persons in command of any Government or
Malawi Army vessel, aircraft or hovercraft, or any person acting on their authority.
• The National Parks and Wildlife Act, 1992, recognizes the powers of the Malawi Police Force,
but the draft National Parks and Wildlife (Amendments) Bill, 1999, expands the definition of
“officer” to include fisheries officers, forest officers, environmental inspectors, customs officers,
members of the Malawi Police Force and Honorary Parks and Wildlife Officers.
• The Forestry Act, 1997, recognizes only police officers in addition to forestry officers.
3.2.4 Roles and responsibilities of District Environmental Officers

Bearing in mind the general comments made in the paragraphs above, the EMA confers some quite
specific responsibilities on District Environmental Officers that will remain valid within the
decentralized system. These include the following:
• The EDO will be a member of the District Development Committee, and will act as an adviser to
the DDC on all matters relating to the environment.

• In particular, the EDO will take a lead role in the preparation of district state of the environment
reports and district environmental action plans.
• The EDO will also take the lead in promoting public awareness in the district on the protection
and management of the environment and the conservation and sustainable utilization of natural
resources
• The EDO will gather and manage information on the environment and the utilization of natural
resources within the district.
Section 20, subsection (2) of the EMA contains three provisions which describe the (pre-
decentralization) role of the EDO as a direct subordinate of the Director of Environmental Affairs:
“(b) report to the Director on all matters relating to the protection and management of the environment and
the conservation and sustainable utilization of natural resources;
(c) submit such reports to the Director as the Director may require;
(f) perform such other functions as the Director may, from time to time, assign to him.”
This institutional relationship will be altered as the LGA comes into effect and the EDO reports
directly to the Chief Executive, and the EMA will require amendment in this respect. But there will
remain a need for the EDO to submit reports to the DEA on some kind of formal basis, and the
amendment should reflect this: essentially the change required is more one of style than of content.

4. LAND USE AND MANAGEMENT

Sectoral Framework Documents Key dates
Principal statute: The Land Act 1965
The Customary Land (Development) Act 1967
The Registered Land Act 1967
Related legislation: The Town and Country Planning Act 1988
The Environment Management Act 1996
Subsidiary legislation: The Land Act Regulations GN 166 1965
The Land Act Regulations GN 87 1986
Environment Management (Mountainous and
Hilly Areas) Regulations, 1999 (draft) 1999
Environment Management (River Banks and
Lakeshore) Regulations, 1999 (draft) 1999
Environment Management (Wetland
Resources) Regulations, 1999 (draft) 1999
Policy document: National Land Resources Management Policy
and Strategy (draft) December 1998
Other publications: Final Report of the Presidential Commission
of Inquiry on Land Policy Reform March 1999
4.1 PREAMBLE
Land is the most important of all the sectors considered in this manual, and the subject of land use and
management potentially the most complex. Land is covered by a bewildering intricacy of legislation,
from statutes in the land sector itself to the planning laws, sectoral statutes in natural resources, local
government legislation, laws governing mineral exploration and road construction and – last but by no
means least – customary law. Much of the existing legal framework, including the central 1965 Land
Act, is either under review, or is expected to be replaced within the next two or three years. Further,
customary law relating to land inheritance is geographically differentiated and is also changing in
response to the increasing pressure on land and other cultural influences. Finally, the patterns of
agricultural land use in Malawi have altered dramatically as a result of the liberalization of that sector,
a process of change that is still far from complete.
Malawi’s problems of land use and management have been described many times over a period of at
least a century, a clear indication that they are unlikely to be solved quickly or easily. A concise
contemporary description is quoted here from the final report of the Presidential Commission of
Inquiry on Land Policy Reform (the Commission):
“In the context of all land tenure categories and land uses the Commission received evidence
of destruction of soil cover in watersheds and catchment areas. It also heard evidence of
erosion of agricultural soils, siltation of rivers and destruction of indigenous forests.
In the freehold estate areas, the notion that owners had absolute immunity against
Government intervention in matters of land use was a major factor behind the destruction of
indigenous forests and, in some cases, illegal construction of dams. This also encouraged
freeholders to explain away the existence of unutilised or under-utilised land in terms of their
freedom to decide how best to use such land. Leasehold estates were particularly prone to
abandonment and under-utilisation especially since many holders obtained grants [of land]
far in excess of what they were in a position to develop. There were also cases of leasehold
grants that were made without verification as to the suitability of the demised premises for the
purposes for which they were sought. In addition, the Commission found that many
leaseholders sometimes embarked on developments that were not approved under their terms

of grant. According to the Estate Land Utilisation Studies (ELUS), many of these estates have
simply been abandoned.
Land deterioration was particularly evident in customary land areas. The main reasons apart
from the paucity of good land and high densities in some areas, were their basic resource and
technological poverty, the breakdown of community resource management systems, and the
general marginalisation (as a matter of national policy) of the smallholder agricultural
sector. Thus the Commission received evidence of the disappearance of village forests as a
result of fuel-wood demand, charcoal making and building materials; and destructive
methods of fishing especially along the Bua River. In Nkhotakota, Salima, Ntchisi and
Mwanza where per capita arable land availability ratios were slightly higher than elsewhere,
huge tracts of land lay barren and unutilised due to water scarcity. To compound this,
managerial conflict was not unusual between villagers and government officials and other
agencies as regards jurisdiction over natural resources, especially forests originally planted
by villagers, but later transferred to central government control.
Particularly disturbing was the fact that communities were not sensitised to the need for
proper land management practices especially in situations where continuous damage to land
resources was sinking them deeper into poverty. The fact that they were both users and
owners hence had a stake in the preservation of land quality was not readily apparent to
them.”
Final Report of the Presidential Commission of Inquiry on Land Policy Reform, March 1999: section 3.4.1, pp 45-47.
This part of the manual is intended primarily for use by field officers of government departments and
NGOs who have a direct responsibility for matters of land management. In order to reduce a complex
subject to manageable proportions, the approach taken here will be to:
• ignore those issues that can be solved only at national policy level and do not imply actions
by field officers, e.g. land inheritance, land taxation;
• omit policy discussion concerning the protected areas (which in any case are considered in the
chapters on forestry and wildlife) – in fact, omit consideration of public land altogether;
• defer consideration of urban land use and management problems. There are important issues
here, and it is anticipated that an additional chapter on the urban environment may be added at
a later date;
• focus, therefore, on land use and management issues on private and customary land in the
rural areas, i.e. the problems of agricultural land use.
4.2 THE NATIONAL LAND RESOURCES MANAGEMENT POLICY AND

STRATEGY, 1998 (DRAFT)
The draft land resources management policy was developed over a five year period and through an
extensive process of consultation. It was formulated within the framework of the International
Scheme for the Conservation and Rehabilitation of African Lands, to which Malawi is a signatory,
and with specific reference to the National Environmental Action Plan. The “parent ministry” of the
policy is the Ministry of Agriculture and Irrigation, although the policy consultations were
coordinated by the Environmental Affairs Department. The draft policy was completed in December
1998 and currently awaits the approval of Cabinet. Reproduced below are the policy goal and specific
objectives:
4.2.1 The Land Policy
“2.0 Policy Goal and Guiding Principles

2.1 Policy Goal

The overall policy goal is to promote the efficient, diversified and sustainable use of land based resources both for
agriculture and other uses in order to avoid sectoral land use conflicts and ensure sustainable socio-economic
development.”
“3.0 Specific Policy Objectives and Strategies

3.1 Land productivity … To improve and sustain productivity of land for agriculture and other alternative uses.”
“3.2 Land rehabilitation … To rehabilitate degraded land for agricultural production and other alternative uses.”
“3.3 Public awareness in land management … To instil a sense of responsibility and commitment among the public
towards management of land resources.”
“3.4 Surface water runoff … To control surface runoff water for agricultural and other uses.”
“3.5 Community initiatives in land resources management … To provide an enabling environment for community
initiatives in managing their land resources.”
“3.6 Technology development in land management … To develop technologies that are economically viable,
ecologically sound and socio-culturally acceptable.”
“3.7 Institutional coordination … To enhance coordination among institutions involved in land resources
management.”
“3.8 Institutional capacity building … To strengthen capacities of the Department [of Land Resources Management,
in the Ministry of Agriculture and Irrigation] and other institutions to better plan, implement and monitor and
evaluate land resources management.”
“3.9 Environmentally fragile areas … To protect and preserve environmentally fragile areas such as steep slopes,
stream banks, watershed areas, swamps and dambos.”
“3.10 Legislation … To provide, where necessary, the legal framework to support land resources conservation and
management policies for rational and informed land resources management.”
“3.11 Land resources information … To improve the acquisition and utilisation of land resources information for
proper planning and management of land resources for agriculture and other uses.”
“3.12 Incentives in land management … To promote the use of incentives which encourage communities to undertake
soil conservation measures.”
“3.13 Waste disposal …To institute measures for the satisfactory disposal of all types of waste so that land
degradation and land-based pollution are prevented.”
“3.14 Road mitre drains … To minimize the volume and velocity of erosive runoff from road mitre drains in order to
prevent and control erosion on road reserves and surrounding land.”
“3.15 Natural resources … To promote the management, conservation and utilization of natural resources in order to
ensure sustainable land and ecosystem productivity.”
“3.16 Role of non-governmental organizations and local communities … To complement government efforts in
promoting sustainable land use and management practices.”
“3.17 Physical planning and settlements … To provide a framework to guide the spatial evolution of settlements and
investments to optimise the utilization of land.”
“3.18 Population … To encourage reduced growth in the nation’s population in order to achieve sustainable land
resources management and the associated goals of food security, improved health, employment and poverty
reduction.”
“3.19 Women and gender … To integrate gender issues in all phases of policy and decision making on land so that men
and women as equal partners have a shared responsibility over sustainable use and management of land
resources.”
Throughout the policy there is repeated emphasis on the importance of participatory extension, the
active involvement of communities and traditional leaders in the development of local action plans,
and awareness-raising on all levels. These themes carry through into research, through the

involvement of farmers in on-site trials and demonstrations, and in the envisaged role of NGOs in
supporting the government extension effort.
The National Land Resources Management Policy is very broad and, in a sense, unremarkable. It does
not offer a radically new approach to solving land use problems in the same way that the forestry and
fisheries policies offer new approaches. But contemporary research1 reconfirms that even today the
over-riding cause of rural land use problems is ignorance, to which the only sensible response is
education. Given the level of investment in agricultural extension over the past three decades, the
prevailing lack of understanding of basic land husbandry is a serious indictment not only of the
extension service, but indeed of the whole post-Independence agricultural development initiative.
The policy does contain some new elements. Most prominent is a proposed return to legislative
controls to complement the extension thrust in the protection of fragile lands considered seriously at
risk. To date this has resulted in the preparation of draft legislation, which is described in section 4.4
below. Other notable strategies newly emphasised are:
• The importance of good land use planning, and a commitment to make available high quality
land resources data on which to base planning decisions. There is a clear implication here for
District Environmental Action Planning (see section 4.5).
• The voluntary resettlement of people currently farming on fragile or degraded land.
• The creation of a statutory Land Use and Management Board, to advise government and
resolve land use conflicts; and also a Land Use and Management appeals tribunal.
• The identification and mapping of all significant fragile areas, and where necessary their
proposal for formal designation as protected areas.
• The empowerment of Traditional Authorities to control land use within their areas, together
with the necessary training and technical support to fulfil this role.
• Annual reporting to Parliament on the status of Malawi’s land resources (this could be
incorporated into the national State of the Environment Report).
• The use of incentives to encourage good land management. The proposal for tax rebates as a
reward for good performance could have clear application to the management of private
(estate) lands.
The following sections 4.3 and 4.4 draw heavily on two very useful sources of information and
analysis: a report on land use and management commissioned by the Land Resources Conservation
Department of the Ministry of Agriculture and Irrigation (Banda, 19992) and the final report of the
Presidential Commission of Inquiry on Land Policy Reform. It should be made clear here that the
Commission’s conclusions and recommendations do not in themselves constitute a national land
policy – that remains the responsibility of the Ministry of Lands, Housing, Physical Planning and
Surveys – but it summarises an enormous volume of consultation, analysis and debate, and is a
reference work of great authority.
4.3 THE USE AND MANAGEMENT OF PRIVATE LAND

Private Land is defined in section 2 of the Land Act 1965 as:
“land which is owned held or occupied under a freehold title, or a leasehold title, or a Certificate of
Claim, or which is registered as private land under the Registered Land Act 1967”.
1
See Evans, J.E, Banda, A. and T. Seymour (1999) “Opportunities for Better Soil Management”: Final Report.
Government of Malawi / EU / DfID / Danida; Lilongwe.
2
Banda, G.Z. (1999) Land Use and Management Study: Final Report. Government of Malawi/UNDP.

Freehold titles are derived from three sources: (a) Certificates of Claim which were approved by the
Secretary of State when Nyasaland was declared a Protectorate in 1893, and subsequently upheld by
the Malawi Constitutions of 1964 and 1995; (b) direct Grants made by the Governor after 1902, and
(c) direct grants made by the President of Malawi after independence in 19643. There has been some
debate concerning the power of the State to intervene in the use and management of freehold land.
Current legal thinking is summarised by the Commission as follows:
“… a freehold grant, while conferring the most ample proprietary freedom known to the laws
of Malawi, does not oust the residual power of the State to ensure, at the very minimum, that
the land resources to which that grant relates, are not abused.”
Final Report of the Presidential Commission of Inquiry on Land Policy Reform, March 1999:
section 4.4.1, p 74.
Under section 31 of the 1965 Land Act the Minister responsible for land is empowered to make
regulations for the use and management of all land other than public land or private land within a
municipality or township. Thus, express provision has been made for the Minister’s control over rural
freeholds, yet, to date, no regulations for this purpose has been made.
The future of freehold land in Malawi is uncertain. The Commission recommends the abolition of
freehold status in both the rural and urban contexts, and its replacement by 99-year leases. If this
recommendation is adopted in the development of new land legislation, current freeholds will in
future be managed in accordance with leasehold covenants, and will be subject to land use and
management provisions as already apply to leasehold land (see below). If instead the status of
freehold land is retained, it is very likely that the new land law (or its implementing regulations) will
include specific provisions for its use and management.
Under the Ndunda system, customary land was converted to freehold in the Lilongwe West Land
Development Project through the operation of the Customary Land (Development) Act, 1967. The
system was designed as an experiment in the titling of customary land with the expectation that the
resulting increase in security of tenure would provide an incentive to better land management as well
as providing collateral for agricultural loans. In practice neither of these outcomes has been
satisfactorily demonstrated, and the system is unlikely to be replicated elsewhere.
Leasehold land is not a category recognized or defined by the Land Act 1965. Rather, a lease is a
contractual agreement between two parties – the landlord and the tenant, or lessor and lessee – which
may be subject to conditions including such matters as the period of the lease, the rent, and the
manner in which the leased land is to be used. Thus, any category of land may be leased. Very little is
known about the leasing of private or customary land, and the term “leasehold” is usually taken to
mean the leasing of public land by the State to a private tenant. It is estimated that more than one
million hectares of land is leased for agricultural purposes in this way. Almost all of this land was
originally customary land, the process of lease administration involving, firstly, the acquisition of the
land by the government, and subsequently, the conclusion of a lease agreement between the
government (the Ministry responsible for land) and the tenant.
The authority to grant leases out of public or customary land is provided for in section 5 of the Land
Act, under which the Minister is empowered to grant the lease subject to such conditions and terms as
he may think fit. Further, under section 13 the Minister may prescribe covenants which shall be
implied in every lease granted under section 5. The Minister has discretion to modify or vary the
operation of the covenants so prescribed. The Land Act Regulations made under section 39 of the
Land Act contain a number of covenants that may be implied in any lease made between the Minister
(the lessor) and the lessee. Those that are relevant to land use and management include the following:
• a requirement to keep open and free and in good working order all ditches, gutters, drains,
sewers, pipes, culverts to streams, springs and water courses, and not to divert any rivers,
3
Final Report of the Presidential Commission of Inquiry on Land Policy Reform, March 1999: section 4.4.

streams or watercourses or allow them to overflow so as to cause soil erosion or to cause

injury or damage to adjoining or neighbouring occupiers of land;
• a prohibition on the sale of any indigenous timber or trees growing on the leased premises
and on the cutting of such trees for sale or for use other than on the leased property,
except where otherwise approved by an authorised officer, and upon conditions under
which any such approval may be given;
• a prohibition on the cutting of trees for any purpose or in any circumstances within eight
yards of any river or stream without the written consent of an authorised officer;
• a prohibition on the cutting (without similar consent) of any trees of the species known as
“mbawa” (Khaya nyasica), and otherwise to preserve all timber and trees from all injury
and damage;
• a 1988 (?1986?) amendment to this regulation introduced a clause which requires a lessee
to maintain 10% of his land under tree cover.
In addition to the covenants contained in the Regulations, individual leases contain their own specific
conditions. The standard agricultural lease provides that the lessee will:
• comply with the covenants contained in the Land Act Regulations as from time to time
amended;
• observe the rules of good husbandry and land management;
• crop all arable land on a four year rotation basis;
• maintain not less than 10% of the demised land under trees;
• comply with all directives by the Minister in respect of the demised premises.
Responsibility for the enforcement of leasehold covenants lies with the Ministry of Lands, yet in the
absence of a land inspectorate the covenants are neither monitored nor enforced. Indeed, of the
leasehold estates surveyed in the Estate Land Utilisation Study4 only 46% were actually in possession
of a title deed and therefore bound by lease covenants. The same study found that:
• 57% of estates had less than the required 10% tree cover, and 48% had less than 5% tree
cover;
• only 17% of estates that needed physical soil conservation measures had some of their land
protected. On estates of less than 100 ha this proportion ranged from 8-12%.
• while 64% of estates visited had their crop ridges across the slope and only 8% down the
slope, 28% “appeared to be unaware that crop ridge direction was important and did not
follow any particular direction.”
• 29% of suitable land on estates was underutilised.
Clearly there is a problem here which is unlikely to be solved until responsibility for the enforcement
of land use legislation is shifted to an institution with a much stronger field presence than the Ministry
of Lands, Housing, Physical Planning and Surveys. Draft land use regulations for fragile areas are
described in section 4.5: these were designed with both customary and private land as the principal
targets. If the regulations become law, responsibility and powers for their enforcement will lie with
local authorities, i.e. with District Assemblies, with backup from officers of the Environmental Affairs
Department. Further, as will be shown in section 4.6, below, the District Assemblies will take over
land administration and will be accorded considerable powers over land use under the provisions of
the LGA.
4
Gossage, S.J. (1997): Estate Land Utilisation Study: Land Use on the Tobacco Estates of Malawi. Government
of Malawi/DfID.

4.4 THE USE AND MANAGEMENT OF CUSTOMARY LAND

Customary land is defined in section 2 of the Land Act as:
“… all land which is held occupied or used under customary law, but does not include public land.”
Section 26 of the Land Act 1965 states that:
“The Minister shall subject to this Act, and to any law for the time being in force, administer and control all
customary land and all minerals in, under or upon any customary land, for the use or common benefit, direct
or indirect, of the inhabitants of Malawi:
Provided that a Chief may, subject to the general or special directions of the Minister, authorise the use and
occupation of any customary land within his area, in accordance with customary law.”
The State, therefore, retained the powers of administration and control over customary land, while the
powers of Chiefs in land matters were reduced to those of land allocation. Banda (1999) comented on
this subject:
“It is precisely because of this conclusion, we believe, that almost all chiefs and village
headmen who were interviewed in all the three regions of the country said that all they have
are powers of allocation of virgin land (if any) and where there is no virgin land, their only
powers lie in dispute resolution regarding rights of occupation to allocated land. It was also
consistently submitted that the only point at which traditional authorities could exercise
authority over already allocated land is where the land is abandoned or the allocatee has
been expelled from the village for misconduct in which cases the land can be reallocated to
another person. In any case in terms of customary law the power of traditional authorities
goes so far as allocating portions to village lineages. It is up to the family heads to reallocate
to individual family members. It can be said, therefore, that the power of traditional
authorities diminishes upon allocation of land to family heads until a dispute arises requiring
the attention of the traditional authority. …
On the other hand although the Minister is given power under section 31 of the Land Act,
1965, to make regulations relating to the use and management of customary land, nothing has
been done in the way of promulgating regulations relating to use and management of
customary land in general. In fact it seems the only observable activity the Minister has been
involved in is in relation to the acquisition of customary land, converting it into leasehold
land and effectively putting it away from communal hands. …”
As events have unfolded, we see that a management vacuum has been created – a situation which is
repeated in various ways throughout the spectrum of natural resources management in Malawi. The
powers of the Chiefs have been removed to the State, but the State has neglected to exercise those
powers. Four ways of solving this problem have been proposed or are implied within current
legislation:
• The Land Commission recommends a package of measures to restore powers over customary
land to the Chieftancy and to root out corrupt practices in the administration of customary
land. Such measures would include the restoration of customary land which has been
converted to leasehold as and when leases expire, and the exploration of ways of “recording
and authoritively determining corporate or community interests in specified property whether
within or outside the domain of customary law”. The National Land Resources Management
Policy and Strategy contains a similar recommendation in strategy 3.10.5, to “empower traditional
leaders to authorize the use and occupation of customary land in their areas and ensure its sound use and management.”
• A more conventional but perhaps more immediate management measure would be to
introduce new legislation to provide for the use and management of customary land. Banda
(1999) recommends the preparation of an entirely new Agricultural Land Use and
Management Act for consideration by Parliament, thus placing the management of customary
agricultural land under the control of the Minister responsible for agriculture. A draft Bill has
since been prepared, but remains in an early stage of consultation.

• As a fast-track alternative to an Agricultural Land Use and Management Act, or possibly as a

testing ground for some of the Act’s future provisions, three sets of regulations have been
drafted under the Environment Management Act, 1996, in order to provide special protection
to environmentally fragile lands. The draft regulations are now in the process of consultation,
following which they would require only the approval of the Minister responsible for
environmental affairs and public notification in the Gazette to become legally enforceable.
They are discussed briefly in the following section, 4.5.
• Finally, the Local Government Act, 1998, devolves responsibility for land administration
from the Minister responsible for land to local authorities (District Assemblies). District
Assemblies will also have special responsibilities towards forests, streams and rivers,
wetlands, lakeshores and the “prevention of environmental degradation”, as well as the power to
make by-laws in support of these functions. Section 4.6 looks in more detail at the future role
of DAs in land use management.
4.5 DRAFT LAND USE AND MANAGEMENT REGULATIONS MADE UNDER THE
ENVIRONMENT MANAGEMENT ACT (1996)
Section 8 of the Environment Management Act (1996) places on the Minister responsible for
environmental affairs a duty to formulate and implement policies, plans and strategies for the
protection and management of the environment and the conservation and sustainable utilization of
natural resource, while section 77 empowers the Minister to make regulations for this and all other
purposes of the Act. Further, in section 35 which deals with biological diversity, the Minister is given
authority – on the advice of the NCE and after consultation with the Ministers of other relevant
sectors – to take whatever action of necessary to promote “such land use methods as are compatible with
the conservation of biological diversity of Malawi”.
Through the Minister’s authority under the EMA three sets of regulations were drafted in 1999 to
provide control over land use in environmentally fragile areas. They apply to (a) mountainous and
hilly areas; (b) wetlands, and (c) river banks and lakeshores: all parts of the landscape which are
particularly vulnerable to damage through ill-use.
Since the regulations are still in draft form and the consultation process is incomplete it is not
proposed here to describe them in detail. Nevertheless, they each contain some interesting common
elements, as outlined below:
(1) Each set of regulations provides a general definition of the areas to which the regulations shall
apply; thus “hilly areas”, “wetlands” and “river banks and lakeshores” are so defined.
(2) The institutional basis for land use management within the defined areas is also set out. The
regulations take full account of the future decentralized nature of NRM activities by designating
the Local Authority (District, Town, Municipal or City Assembly) as the primary implementing
agency. They also accord a special technical role for a sub-committee to be established by the
Assembly, which shall include, among others, the District Agricultural Officer, the District
Forestry Officer and the District Environmental Officer. This sub-committee could in practice be
the same as a sub-committee of the District Development Committee charged with the task of
district environmental planning. In the case of wetlands, a national advisory role is also accorded
to the Technical Committee on the Environment.
(3) The types of land use to be controlled within the defined areas, and the types of control measure
to be imposed, are also set out. For instance, the Mountainous and Hilly Areas Regulations
include blanket rules for the prevention of soil erosion and give powers to the Local Authority to
prohibit further cultivation on land showing signs of soil erosion, and to the EDO or the sub-
committee to serve written notice on land users to arrest soil erosion.
(4) Within the general definitions of fragile lands there may be more restricted areas which are of
special importance or which are deemed to be at special risk. These are to be identified by the

Local Authority, with the advice of the sub-committee, and registered by the Director of
Environmental Affairs. Certain wetlands may be declared wetlands of international importance;
such designation being made by the Minister on the advice of the NCE and published in the
Gazette.
(5) Special or high-risk areas which have been registered by the Director of Environmental Affairs
will be subject to a more stringent level of control, and within them certain activities may be
prohibited entirely or may be licensed by the Director.
Thus the draft regulations envisage a split of responsibilities, with Local Authorities taking the overall
lead in management (through by-laws made in accordance with guidelines provided by the DEA) but
the central agencies (the Minister, the NCE, the TCE and the DEA) becoming directly involved in
sites of national or international importance.
4.6 THE POWERS OF DISTRICT ASSEMBLIES OVER LAND

As noted in Chapter 3 above (page 3: 2), section 22 of the second schedule to the Local Government
Act, 1998, includes a long list of functions to be devolved to the local authority level. These include
(ix) land administration; (x) land surveying and (xi) physical planning. Also, “ground rent” is named
second in the list of revenue sources for District Assemblies contained in the third schedule to the
LGA (page 3: 4). There can be little doubt that District Assemblies will assume their lead role in land
administration as quickly as possible, as it will bring in a major part of their revenue (agricultural
leases are worth around MK2 million per district at current rental value). For private land converted
from customary, i.e. leasehold land, District Assemblies will have the power to enforce leasehold
covenants, and also to vary or add new covenants if they so wish. In the description of the functions
and responsibilities to be assigned to District Assemblies, the National Decentralisation Policy clearly
states in subsection 9 (d):
“Enforcement of lease agreements as agents of central government.”
Subsection 2 (6) of the second schedule also gives District Assemblies responsibility for
“… the prohibition and control of pollution of any water in any river or stream and for this purpose may
prohibit or regulate the use of any such river or stream and any river-bank or streambank including any
cultivation therein or the extraction of any sand, gravel or other material therefrom.”
Subsection 22 (e) adds to this a general responsibility for decentralized services and activities
including forests and wetlands, and subsection 22 (o) adds the further function:
“assist government to preserve the environment through protection of forests, wetlands, lake shores,
streams and prevention of environmental degradation; …”
To underline the authority of the Assemblies in these areas, subsection 22 (f) of the second schedule
empowers them to:
“regulate, control, manage, administer, promote and licence any of the things or services which the
Assembly is empowered or required to do, and establish, maintain, carry on, control, manage or
administer and prescribe the forms in connection therewith to fix fees or charges to be levied in that
respect; …
When they become operational, therefore, District Assemblies will have extensive responsibilities
over land use and management, and will have powers to make their own regulations or by-laws for
this purpose.
4.7 THE ROLE OF PUBLIC OFFICERS AT DISTRICT LEVEL
4.7.1 The future legal framework for land use and management
One clear conclusion from the above review of land use and management legislation is that there exist
at present no effective legal restrictions on land use. Only the leaseholder is provided for, through

leasehold covenants, but unless the Minister responsible for lands decides to authorize public officers
from other Ministries to enforce regulations made under the Land Act (1965) the present absence of
law enforcement in the field will continue for the immediate future.
To summarize the discussion in the earlier parts of this Chapter, this situation may change in the
longer term in one (or more) of four ways:
(1) Traditional Authorities may assume a more prominent role in land use and management if
their powers over land are restored and reinforced in a future basic land law.
(2) The introduction of an Agricultural Land Use and Management Act would empower officers
of the Ministry of Agriculture and Irrigation to enforce provisions applying to agricultural
land use.
(3) The adoption of regulations governing land use in fragile areas under the EMA would give
powers to District Assemblies in respect of land use in such areas.
(4) As the future administrators of land and authorities for natural resources management and
environmental protection, the Assemblies will in any event be in a position to take the lead
role in land use and management at the local level.
4.7.2 Agricultural and Forestry Extension

Most of the problems of agricultural land use (as distinct from the problem of deforestation) are more
closely linked to ignorance and poverty than to the wilful misuse of the land, and extension aimed at
maximising the sustainable productivity of land resources must become a mainstream priority for the
decentralized agricultural extension service as well as for NGOs working in agricultural development.
At the heart of the problem of smallholder land management is the fact that continuous cultivation on
the same plot is a relatively new phenomenon. The majority of smallholders were able to practice
some form of fallowing – however limited – until the 1970s or 1980s, and since then there has been
insufficient time for an “indigenous” farm technology to evolve to meet the new challenge. Following
Independence, the government agricultural extension service has expended considerable effort in
promoting “green revolution” technologies and in servicing the former government-run agricultural
credit facility. Only recently (mid-1990s) has the focus of extension broadened towards a more
holistic approach to smallholder agriculture, a shift which must be sustained under the decentralized
system.
Both agricultural and forestry extension are foreseen as functions to be decentralized to local
authorities. The problems faced by the two sectors are rather different, since whereas the Ministry of
Agriculture and Irrigation has a large and well-established extension staff, the Forestry Department
has very limited field capacity in extension. The possibility of at least partially combining the two
functions – agriculture and forestry – may be worth serious consideration by the new Assemblies.
4.7.3 District Environmental Action Planning

This subject is treated in more detail in Chapter 3 above (see “Roles and responsibilities of District
Development Committees”, page 3: 5), but it is worth listing here some of the strategies outlined in
the draft National Land Resources Management Policy which are of special relevance to the DEAP
process:
“3.7.4 Decentralize land use planning, its management and administration in order to improve public participation and
reduce delays in decision making. [Note that physical planning is already decentralized under
the LGA]
3.9.1 Identify and map all environmentally fragile areas.
3.9.2 Provide appropriate guidelines on use and management of different kinds of environmentally fragile areas. …
3.11.2 Provide high quality [land resources] data that is compatible with national and international set standards.

3.11.3 Ensure periodic acquisition of aerial photographs and satellite imagery and maps for purposes of updating land
resources information.
3.11.4 Publish and disseminate land resources information to land users to enable them [to] make informed decisions
on the use of land resources.”
The National Land Resources Management Policy offers an open invitation to DDCs, or to sub-
committees charged with environmental planning, to avail themselves of the considerable data bank
and analytical expertise available within the Land Resources Conservation Department. Of course the
ability of the LRCD to provide technical assistance will be limited, but data will be freely available
and periodically updated, and the concept of developing a GIS analytical capacity at district level is an
attractive proposition.

5. WATER AND IRRIGATION

Principal statutes: The Water Resources Act 1969
The Water Works Act 1995
The Water Resources Act (draft) May, 1999
The Irrigation Act (draft) Oct., 1998
Policy documents: Water Resources Management Policy and Strategies 1994
Water Resources Management Policy and Strategies (draft) May, 1999
National Irrigation Policy and Development Strategy 2000
Other publications: The Irrigation Action Plan Oct., 1998
5.1 INTRODUCTION
Considering the central importance of water as one of life’s essential commodities, Malawi’s water
sector has been surprisingly under-valued, and water itself taken for granted. Patterns of human
behaviour and distribution not only determine the demand for water but can also influence its
availability. The history of settlement in Malawi has shown a strong correlation with the distribution
of agriculturally productive soils and the availability of surface water. Since before the Second World
War, and more especially since Independence, the development of rural water supply from both
surface water (through gravity fed piped water schemes) and ground water (through borehole
programmes) has enabled settlement to expand into previously inhospitable areas. More recently,
population growth has placed heavy demands on the existing supply system as well as forcing
settlement into areas of poor water availability. Further, the accumulated effects of deforestation and
poor land use practices have reduced the penetration of rainfall into the soil, thereby lowering the base
flows of rivers and streams and reducing the recharge of the deep aquifers. Thus the growing
agricultural population has increased the demand for water while at the same time reducing the
available supply, a mismatch which has led to water shortages and growing public appreciation of the
need for a new approach to water management.
Irrigation is taken to mean the use of water resources as an input to agriculture. Although it is but one
of many uses for water, irrigation is believed to have considerable potential for development, at least
in part through the deployment of water harvesting technologies to make use of rainy-season supply
which is currently wasted. In this manual it is considered more appropriate to examine the policy and
legal framework for irrigation in the context of water development generally, rather than to treat it
solely within its agricultural setting.
The principal issues in the water sector include the following:
(1) Although Malawi receives sufficient rainfall in most years to ensure an adequate supply in
total to meet the many and varied needs for water, the concentration of rainfall into a fairly
short and well-defined rainy season implies a corresponding seasonality in water availability,
and dry-season water scarcity is commonplace. Management of water supply through
conservation dams or reservoirs is relatively undeveloped – nationally around 700 dams have
a combined storage capacity of less than 0.1% of annual precipitation. So, while total supply
should be more than adequate, most of what is not lost through evaporation simply runs off
the land into the river systems and enters the lakes or leaves the country via the Shire River.
Very little is retained where it is most needed.
(2) Land degradation resulting from the clearance of bush for agricultural expansion, the poor
maintenance of cultivated soils and the unmanaged commercialisation of forest resources has
impaired watershed performance over large areas. Instead of penetrating the soil to sustain dry

season stream flows and recharge groundwater supplies, an increasing proportion of rainwater
now travels across the surface of the land as runoff, contributing to soil erosion and flash
floods. In consequence, many streams which used to flow perennially now dry up entirely in
the dry season. Poor land use has progressively reduced the availability of water and has
sharply accentuated the seasonality of supply.
(3) The information base on which to plan water resources management is extremely narrow.
There exists some information on river flows, but it cannot be considered adequate for long
term management purposes: monitoring is simply under-funded. There is very little
information on groundwater resources, and the impact of watershed impairment and current
extraction on groundwater availability have not been measured.
(4) Overall, activities within the water sector have been concerned mainly with water supply, and
not with the management of water as a finite resource. The institutional basis for water
management is weak and excessively centralized, and equally little attention has been paid to
the management of demand for water and water services.
(5) Finally, Malawi’s water sector has been managed in isolation, and without reference to the
trans-boundary nature of the resource. Malawi is a signatory of the SADC Protocol on Shared
Watercourse Systems and the UN Convention on Non-Navigation Use of International
Watercourses, has concluded a bilateral agreement with Tanzania on the management of and
investments in the shared Songwe River, and as a member of SADC is bound by an
agreement on economic integration and cooperation in the Water Sector. These commitments
now need expression in instruments of national policy and law.
The discussions within this section of the manual have been guided by extensive reviews of the water
sector conducted by consultants in the preparation of draft national policies and legislation for water
and irrigation.1 The same consultants worked on both the water and irrigation studies, and the two are
as a result well matched. The process of policy and legal development followed the normal practice of
broad consultation in each case.
5.2 WATER RESOURCES POLICY
5.2.1 The Water Resources Management Policy and Strategies (1994)

The 1994 Water Resources Management Policy (WRMP), and the National Water Development
Project which followed it, placed primary emphasis on the supply of potable water. Although it pre-
dated the National Environmental Policy and the related developments in other NRM sectors, the
WRMP contained a number of progressive features which still fit well into the current trends in
national economic development. These include (a) the treatment of water as an economic as well as a
social good, and (b) an emphasis on the decentralization and commercialisation of water supply. The
main policy statements of the 1994 WRMP are:
“(i) Water should be managed and used efficiently and effectively so as to promote its conservation and future
availability in sufficient quantity and acceptable quality;
(ii) All programmes related to water should be implemented in a manner that mitigates environmental degradation
and at the same time promotes the enjoyment of the asset by all;
(iii) The approach to allocation of water should be designed in a way that recognises water not only as a social but
also as an economic good, and in a manner that achieves maximum benefit to the country;
11
Malawi Government (1999) Water Resources Management Policy and Strategies. Ministry of Water
Development, Lilongwe.
Malawi Government (1999) Water Act (draft) Ministry of Water Development, Lilongwe.
Malawi Government (1998) National Irrigation Policy and Development Strategy; Irrigation Act (draft); Action
Plan. Ministry of Agriculture and Irrigation, Lilongwe.

(iv) In planning and providing water supply services consideration should be given to safe disposal of the resultant
waste water;
(v) Investment of public funds in water and water related programmes should be guided by the expected net
economic, social and environmental benefits of the programme to the country as a whole;
(vi) The Government shall facilitate the participation of stakeholders (including users and special target groups)
both in the public and private sectors to ensure that the needs of relevant interests are taken into account in
the development of water systems; and,
(vii) The pricing of water should reflect demand and the costs of water services. Pricing policy should aim at the
reduction of government financial support to the sector over time.”
The review of water policy referred to in section 5.1 above includes the following comments on the
WRMP:
“The focus of the policy development, at that time, was to improve water supply and
sanitation services that had deteriorated and were facing major challenges of sustainability
and addressing the needs of the stakeholders. The emphasis was on decentralisation and
commercialisation, which have been successfully done with the establishment of three
regional water boards from the now defunct District Water Supply Fund of the Ministry of
Water Development. …
… the Water Resources Management Policy is silent on a number of major water
management issues in Malawi. It does not specify the vision and policy objectives for water
resources management that would advance sustainable development and management of
water for all its uses and advance poverty alleviation. It does not recognize and incorporate
the international and regional conventions and agreements on water management that
Malawi is a signatory to. It also fails to direct water resources monitoring, assessment,
planning, development and implementation of strategic plans for conservation of water and
mitigate the effects of water scarcity during dry season, and droughts, or address the issues of
flooding.”
5.2.2 The draft Water Resources Management Policy (1999)

The new draft WRMP is organised into an over-arching water policy, with more specific policy
provisions relating to water resources management and water services. It does not attempt a total re-
think of water management; neither does it abandon the strong points of the 1994 policy. Instead the
draft policy adds to the 1994 WRMP in a number of ways, the most important of these being:
• Water development
Throughout the draft policy “management” is usually linked to “development” of water resources.
Thus there is added emphasis on measures to increase the supply of water as well as ensure its
rational apportionment and distribution. One of the main objectives of the draft policy is to:
“Ensure the existence of strategic and contingency water resources developments and management schemes that
guarantee availability of water even during droughts and mitigate the impacts of population pressure, floods, droughts and
environmental degradation, so that the asset is equitably utilised by all potential users; …”
Surprisingly, this important theme is not developed further at the strategic level, although the
proposed amendments to the Water Works Act (1995) make it clear that the Water Boards are
seen as the primary agents of change (see section 5.4.4, p. 5: 10).
• Decentralisation and privatisation of the water sector is carried further.
Listed among the main policy objectives is:

“Patronise sustainable development concepts in water development and management based on participatory, value-based
programmes and consultative approaches that keep aspirations of stakeholders and interest groups alive through:

(3) The empowerment of the community or beneficiaries to own, operate, maintain and manage their own water facilities and
services, with the involvement of the public and private sectors, NGOs and donors;
(4) The empowerment of the community to own, manage and invest in water resources developments and management
schemes; …”
The term “community” is used here in a much broader sense than the village-level community
that is the basic management unit applying to some other NRM sectors, and there is reference in
the specific policy goals to community ownership at the national, regional and catchment levels.
There is certainly an intention to decentralise water management, and while the existing Water
Resources Board would remain (in a strengthened form) as a national planning and coordination
body it would be supplemented by newly created Catchment Management Authorities (CMAs).
The CMAs would be government rather than community institutions, although they would have a
commercial orientation and a responsibility to consult stakeholders in the planning and
management of water resources at catchment level.
Water services policy goals include the reconstitution of the Water Boards to allow private sector
participation and investment in water supply, and the progressive handing over of rural and peri-
urban water supply systems to the beneficiary communities.
• International obligations are given full recognition.
Throughout the draft policy there are references to the need to take into full account Malawi’s
obligations to neighbouring states and the wider Zambezi Basin.
“The planning, development and management of the Lake Malawi and Shire River and other shared river basins, should
always consider their unitary whole and the national and international conflicting interests and multi-purpose nature of
their water resources use, including that required for the environment and maintenance of Lake Malawi natural heritage;”
The draft policy document contains a detailed and useful analysis of institutional roles and
responsibilities, a summary of which is presented in Table 5.1, below. A significant omission from the
draft WRMP is reference to the role of local authorities – the Assemblies – in water resources
management and water supply. The decentralisation of the water sector is discussed in section 5.5.
Table 5.1: Institutional roles in the water sector, as defined by the draft WRMP (1999)
Institution Principal roles
Ministry of Water • Monitoring, assessment, planning, development, conservation, allocation and protection of
Development water resources;
• Planning, development and coordination of rural water supply;
• Regulation of the activities of the Water Boards.
National Water • Coordinating the activities of Catchment Management Authorities;
Resources Board • Regulation of water resources development and operation;
• Advising on the protection and management of sensitive catchment areas;
• Advising on the establishment of water users associations, especially for rural piped water
supply schemes; fisheries or irrigation supply.
Catchment • Control and development of water resources within the catchment area.
Management
Authorities
Water Boards • Control and development of waterworks for potable water supply;
• Collection and treatment of waste water or water-borne sanitation.
The Ministry of • Widespread promotion of good land husbandry;
Agriculture and • Collaboration with CMAs to ensure good management of sensitive catchments, controlled
Irrigation areas and river banks;
• Control of irrigation development;
• Promotion of on-farm water harvesting and conservation.
Ministry of Lands, • Introducing water resources considerations into physical planning, zoning and the vetting of
Housing, Physical agricultural lease applications;
Planning and Surveys • Facilitation of the declaration of protected areas.
Ministry of Natural • Forestry Department to continue to conserve headwater catchments through the
Resources and management of Forest Reserves;

Environmental Affairs • Fisheries Department

• EAD to coordinate cross-cutting issues involving the water sector.
Other public • Miscellaneous linkages with Commerce and Industry (over-exploitation and pollution
stakeholders issues), Transport (navigation) and Health (domestic water supply standards)
NGOs • Promotion of community-based water services and WRM;
• Direct investment in rural water supply and dams;
• Community sensitisation in water and catchment management.
The private sector • Contract and implement water resources development and water services financed by public
investment, and provide consulting and technical services;
• Invest in water resources developments, water supply and water-borne sanitation.
5.3 THE NATIONAL IRRIGATION POLICY (2000)
5.3.1 Overview
The 2000 National Irrigation Policy (NIP) was approved by Cabinet in recognition of two important
changes over the past two decades. The first of these was the increasing problem of drought, which
focused attention on irrigation development as a means of sustaining agricultural production. The
second was Malawi’s entry into a process of structural adjustment, with the associated liberalization
of the agriculture sector and the wider economy. “The role of the government has been changed from that of the main
entity in the centrally regulated economy to that of a facilitator of development in a market oriented economy.” [NIP, p. 4]
The Mission Statement of the Department of Irrigation is:
“To manage and develop water and land resources for diversified, economically sound and sustainable irrigation and
drainage systems under organized smallholder and estate management institutions and to maintain an effective advisory
service.”
5.3.2 Broad policy objectives and statements

The NIP contains seven broad policy objectives, reproduced here in full:
“(1) Contribute to poverty alleviation by targeting resource poor smallholder farmers for irrigation development to
enhance farm income and by supplementing the recommended strategies for rainfed agriculture outlined in Malawi’s
“The Agriculture and Livestock Development Strategy and Action Plan”.
(5) Increase agricultural production and enhance food security through irrigation, which will ensure some production
during droughts and the dry season, and this will supplement rainfed agriculture.
(6) Extend cropping opportunities and provide a wider variety of crops in both wet and dry seasons to improve
nutritional status, especially of children and women.
(7) Create an enabling environment for irrigated agriculture, by facilitating and encouraging the private sector to invest
in irrigation development, and encouraging rural communities to manage irrigation projects in order to fully utilise
irrigable land in Malawi.
(8) Optimise government investment in irrigation development by applying principles of cost sharing and cost recovery.
(9) Enhance human capacity for irrigated agriculture in the public, parastatal and private sector in order to facilitate
effective research in irrigation technology and marketing of irrigated produce.
(10) Create the spirit of business culture in the small scale irrigated agriculture sector, to promote and provide
competitive financing of irrigation projects and improve the marketing system at national and international levels.”
Following the policy objectives the NIP lists a number of statements that define the way government
intends to go about achieving them. The following are the key points or guiding principles:
• All irrigation development will be coordinated by a Malawi Irrigation Board, which was enacted
on the 6th October 2001.
• The Department of Irrigation (DoI) will act as facilitator in the development process to create an
environment that encourages smallholder farmers and commercial farms to invest in irrigation
development and manage their own operations.

• Although priority will be given to the smallholder sector, commercial investors will also be
encouraged.
• Smallholder irrigation schemes will be identified, designed and implemented with the full
participation of the beneficiaries to ensure full ownership of the developed schemes.
• Environmental concerns will be taken fully into account in the design of irrigation developments,
and all medium or large scale developments will require an Environmental Impact Assessment.
• Health aspects will also be addressed in the design of irrigation developments.
• Both the extension service and research capacity in irrigation technology will be strengthened,
and international cooperation in irrigation research will be promoted.
The NIP elaborates a large number of strategies through which to implement the policy, including the
promotion of new smallholder self-help schemes; the handing over of existing government irrigation
schemes to their beneficiaries, the rehabilitation of old earth dams and the construction of new ones,
and the provision of support to the informal irrigation sector (traditional rice and dimba cultivation).
This section of the document ends with a list of expected outputs, in many cases quantified and time-
scheduled.
5.4 WATER SECTOR LEGISLATION
5.4.1 Overview
The current legal framework for the water sector is contained in two Acts – the Water Resources Act
(1969) and the Water Works Act (1995). There is currently no statute which deals specifically with
irrigation. Water legislation now in draft form comprises three parts. An entirely new Water
Resources Act has been drafted to embody new provisions for water rights, water conservation and
water transfers, as well as to give recognition to Malawi’s international obligations in the water sector.
A series of amendments to the Water Works Act has been prepared, expanding the scope of the Act to
regulate the safety of dams. Finally, a draft Irrigation Act has been designed. The last is needed to
regulate the handing over of existing government irrigation schemes to scheme farmers, and to
provide for the necessary institutional structures for their management and for future farmer-owned
schemes.
5.4.2 The Water Resources Act (1969)

The Water Resources Act (1969) (WRA) and its subsidiary legislation set out the basic framework for
all water resources management in Malawi. Its full title is:
“An Act to make provision for the control, conservation, apportionment and use of the water resources
of Malawi and for purposes incidental thereto and connected therewith”
The Act consists of seven parts, described briefly as follows:
Part I – Preliminary –States the short title and provides an interpretation of technical terms. Of
particular importance is the term “public water”, which means:
“… all water flowing over the surface of the ground or contained in or flowing from any river, spring or
stream or natural lake or pan or swamp or in or beneath a watercourse and all underground water but
excluding any stagnant pan or swamp wholly contained within the boundaries of any private land …”
Part II – Ownership of and Inherent Right to the Use of Water – establishes important basic
principles. Section 3 vests the ownership of all public water in the President, and the control of all
public water in the Minister responsible for water. Section 4 establishes the Water Resources Board.
The constitution and proceedings of the Board are set out in a schedule to the Act. Its functions are
not defined in any one place, but must be inferred from references to the Board scattered throughout
the Act. The composition of the Board is:
• two representatives of the Ministry responsible for water;

• a representative of the Office of the President and Cabinet;

• a representative of the Water Resources Division;
• a representative of the Ministry responsible for trade and industry; and
• not more than six other members appointed by and at the discretion of the Minister.
Part II also establishes the right of the public to abstract and use public water for domestic purposes
wherever it is lawfully accessed, provided such use does not damage the natural resources of the area.
In the event of a perceived threat to natural resources the Board is empowered to serve notice on water
consumers to restrict consumption, or to take such other measures as may be necessary. “Domestic
purposes” means the use of water for household and sanitary purposes, and includes the watering and
dipping of stock.
For all other purposes, including the diversion or damming of water, and the construction of any
works, it is necessary to obtain a water right by application to the Board. To abstract or use water for
any non-domestic purposes (other than fire-fighting) without acquiring a water right is an offence
under section 5.
Part III – Recording of Existing Rights – provided for the recording of water rights which had
existed prior to 1969.
Part IV – Grant of Water Rights – provides for the grant of water rights by the Minister. An
application for a water right is to be made to the Board, which must notify the public of the
application and receive and consider any objections to it. The Board ultimately passes applications,
together with its comments on them, to the Minister for his action.
Part V – Revision, Variation, Determination and Diminution of Water Rights, Pollution of
Public Water – provides for the management of water supply to the holders of water rights, and
makes the pollution of public water an offence.
Sections 11 and 12 in this Part give the Minister the power to reduce or suspend the right to abstract
water from a public water source, for any period, under two circumstances. The first (section 11) is
where, in the Minister’s opinion, the supply of public water from any source or in any area is
insufficient, or is likely to become insufficient, for the combined demand. In this event no
compensation is payable to the holders of water rights so affected. The second circumstance (section
12) is where water from the affected source or area is required for a public purpose. In this event the
holders of water rights varied or suspended by the Minister’s order will have a right to reasonable
compensation, and in the event of the parties failing to agree on the amount of compensation this will
be determined by the High Court.
Section 14 empowers the Minister to require a holder of a water right to remedy any default of the
conditions which were specified or implied when the right was granted. Section 15 further empowers
the Minister to terminate or reduce a water right which has not been fully utilised during the preceding
two years.
Section 16 is an important provision that deals with the pollution of public water:
“16.-(1) Any person who, save under the authority of this Act or any other written law, interferes with
or alters the flow of or pollutes or fouls any public water, shall be guilty of an offence.
(2) For the purposes of this section the polluting or fouling of public water means the discharge into, or
in the vicinity of public water, or in a place where public water is likely to flow, of any matter or
substance likely to cause injury whether directly or indirectly to public health, livestock, animal life, fish,
crops, orchards or gardens which are irrigated by such water or any product in the processing of which
such water is used or which occasions, or which is likely to occasion, a nuisance.”
Part VI – Miscellaneous Powers – accords a number of powers on the Board and the Minister in the
interest of water resources management.
Section 17 requires the Board to consider an application from the holder of a water right for an
easement (the right of entry onto land belonging to another) to facilitate his full use or enjoyment of
the water right. The Board will examine the case, consult the other landowner and make a

recommendation to the Minister, who may, at his discretion, create the easement and determine
appropriate compensation to the landowner, if any.
Section 18 empowers the Board to call for information, from any person.
Under section 19 the Board is empowered to enter any land to inspect water works under construction,
and under section 20 it may order the demolition of any unlawful works. Section 21 empowers the
Board to enter any land for the purpose of making investigations or surveys, or for the installation of
hydro-meteorological stations, or otherwise collecting information needed in the interest of water
management.
Section 22 empowers the Minister to declare controlled areas, mainly for the purpose of protecting the
catchment, shores or banks of important surface water bodies, and to defray the cost of managing the
controlled area by levying charges upon the beneficiaries of any scheme so protected.
Part VII – Miscellaneous – establishes the right of the Minister to make regulations under the Act,
and also establishes penalties for offences. Penalties for offences under section 5 (abstraction of water
without a water right) are a fine of K1,000 and imprisonment for one year, while penalties for all
other offences (including the pollution of public water) are K500 and imprisonment for six months.
5.4.3 The draft Water Resources Act (1999)

The proposed replacement for the 1969 WRA was developed in parallel with the draft WRMP, and
given the process of consultation and review can be taken to represent fairly well the government’s
intentions – at the technical level – for water resources legislation. However, the draft has not yet been
reviewed and recast by the Ministry of Justice, and is not therefore quoted in detail. In essence, the
draft WRA retains most of the WRA (1969) but adds a number of new provisions, as follows:
• The Water Resources Board is strengthened and renamed the National Water Resources
Board. The functions of the reconstituted Board are expanded to include the making of policy in
the water sector; the management of national water resources and the co-ordination of all
activities in the water sector.
• Water transfers. This innovative provision provides incentive for water harvesting and water
saving, by making it lawful for a person who has saved an excess of water, whether from
harvesting or otherwise, to transfer the water in exchange for a fee (i.e. to sell it) to another. Such
transfers would be obligatory in times of water scarcity, and the fee charged would be determined
by the Minister.
• Water Resource Information Systems. This entirely new Part is inserted in the WRA (1969)
immediately following Part VI. It requires the Minister to establish national water resources
information systems to cover hydrology; waters resources quality; groundwater, a register of
permits issued for water uses and a register of licences issued for waste discharges. Its clear
intention is to put water resources management for the first time onto a firm scientific basis. This
Part also requires the Minister to establish a public early warning system to avert the risks from
floods, droughts and the failure of waterworks or dams.
• Catchment Management Authorities. A new Part deals at length with the establishment of
Catchment Management Authorities (CMAs). A CMA would be a government institution acting
as an agent of the National Water Resources Board to manage water resources at catchment level,
and a wide range of functions – mainly advisory – are specified. It may be established on the basis
of a proposal from stakeholders within the catchment concerned, or on the initiative of the
Minister. The Minister would appoint a Technical Committee for each CMA, to include the
Principal Secretaries for Water Development; Forestry, Fisheries and Environmental Affairs;
Agriculture and Irrigation and Tourism, Parks and Wildlife, or their representatives. The
Committee would also include representation from the district councils [Assemblies of all local
government areas] within the catchment area and an NGO in the water sector.

• Associations of Water Users and Stakeholders in Water Resources. This new Part establishes
the right of stakeholders in the water sector to form associations for the promotion of water
resources management and utilisation.
• Environmental Conservation and Management as it Relates to Water. This new Part starts by
paying formal recognition to the authority of the Environment Act (1996), the Forestry Act
(1997), the Fisheries Conservation and Management Act (1997) and the Inland Waters Shipping
Act, in so far as they relate to water.
“Stream flow reduction activities” are defined (to include deforestation, poor agricultural
practices and environmental degradation), although no special management measures are
associated with these activities.
“Controlled activities” are also defined (to include irrigation, hydro power generation, discharges
into aquifers and others), and these may only be undertaken upon the grant of a permit by the
Minister.
More comprehensive controls over the pollution of public water are elaborated in this part, along
with the powers of CMAs in this regard.
• International Water Management. This new part would empower the Minister to establish
bodies to implement international agreements relating to the management and development of
water resources shared with other countries.
• Water Tribunal. A new Part would establish a national tribunal comprising five persons
appointed by the Minister on the recommendation of the Judicial Service Commission. Appeals to
the tribunal could be made in respect of
(a) directives and claims for cost recovery issued by a CMA in respect of pollution incidents;
(b) claims arising from directives made under the Water Works Act;
(c) refusal to grant a water right, and
(d) any other grievances arising from the decisions of the Minister, the National Water Resources
Board, a Catchment Management Authority or other water institution.
• Offences and penalties. A new Part would elaborate and update the offences and penalties listed
under the 1969 WRA and add new ones corresponding to the new parts of the draft WRA.
Penalties range from a fine of K5,000 and three months’ imprisonment to K100,000 and twenty-
four months’ imprisonment.
5.4.4 The Water Works Act (1995) and Proposed Amendments (1999)
The Waterworks Act (WWA) is a relatively new statute that was introduced to commercialise and
decentralise urban and peri-urban water supply to parastatal Water Boards established under its
provisions. It repealed the Blantyre Water Works Act (1971) and the Lilongwe Water Works Act
(1987), which had established the Blantyre and Lilongwe Water Boards, respectively, and laid down a
legal framework for implementing the 1994 Water Resources Management Policy. As mentioned
above, this transition has now been successfully accomplished. The principal features of the Act are as
follows:
(1) Part II establishes the membership, powers and duties of Water Boards to deliver water
supply and water-borne sanitation services, to own and control waterworks in designated water
areas, and to levy and enforce payments for water services. A “water area” is the area within
which a Board is expected to provide its services (although a Board may, with the approval of the
Minister, provide services outside its water area), and is defined (and may be altered) by the
Minister responsible for water development. A Board consists of a Chairman, a representative of
local authorities, the Principal Secretaries of Health and Education, and nine members appointed
by the Minister, five of whom represent the interests of consumers in the Board’s area

(2) Part III gives the Water Boards a range of operational powers in connection with the provision
of water supply and water-borne sanitation services. These include the power to enter land,
construct and maintain waterworks and install or suspend services. They also include the power
to enter into contracts to supply water to any person or to a local authority, subject to such
conditions as may be laid down by the Minister.
(3) Part IV provides for the connection of water supply on request and on receipt of the
appropriate payment. Where the boundary of the premises to be connected lies within 100 metres
of an existing water main such payment is set down in a fixed scale of fees, but where the
distance exceeds 100 metres the fee is to be determined according to the estimated cost of
connection.
(4) The operation of water-borne sewerage and sanitation services is provided for in Part V. A
Board may construct and provide public sewers and sewerage disposal works, making good any
damage to private land caused in the process, and must maintain and make available to the public
a map of all public sewers. This part of the Act entitles the public to connection to a public
sewer, provided that the on-site water supply is adequate, that the boundary of the premises to be
connected is not more than 30 metres from the public sewer and that the cost of connection is
paid to the Board. It also establishes the right of the public to continuity of sewerage service, i.e.
a Board may not remove the service from any person who is lawfully using a public sewer, and
sets out restrictions on what may lawfully be discharged into a public sewer.
(5) Part VI sets out the financial structure and accounting basis of the Water Boards. It gives the
Board the right to fix water rates and make charges according to rules made by the Minister, and
also regulates investments, the disposal of funds, Government advances and borrowing, and
accounting, auditing and financial management.
(6) Miscellaneous sections:
• oblige the Boards to respond to questions from the Minister relating to any failure to perform their
duties;
• set offences under the Act, and lay down penalties;
• empower the Boards to make by-laws, and to recover penalties or monies owed;
• repeal the previous water works Acts and establish the Blantyre, Lilongwe, Northern Region,
Central Region and Southern Region Water Boards.
The 1998-99 review of water sector legislation identified three principal deficiencies in the WWA
(1995). The first was the Act’s silence on the important subject of dams, in particular the power to
regulate the safety of dams. Secondly, the 1995 Act makes no provision for the participation of
stakeholders in the ownership, management and maintenance of water supply schemes. Finally, while
the Act gives powers to the Water Boards to fix water prices, it gives no guidance on how such prices
should be determined. Accordingly, a number of amendments to the Water Works Act have now been
proposed:
• It is proposed to insert a new subsection into section 3 in Part II to give a Board the power to
identify the need for, and to develop, water infrastructures, including contingency and supply
reservoirs.
• It is proposed to amend Part V of the WWA – Operation of Water-Borne Sewerage Sanitation –
to give sole responsibility to a Board for all disposal of sewage and sludge from septic tanks
within its water area, subject to agreement between the Ministers responsible for water and local
authorities. Any person may apply to the Board for a permit to supply such services. The
amendment would also require any company or organisation that uses water for industrial
purposes to discharge industrial waste only in a place designated for such disposal and to treat
such discharge prior to final disposal.
• An additional section at the beginning of Part VI – Investment and Water Allocation – is
proposed. The new section would require that prior to investment and water allocation in any

water area, a Water Board must first engage in a participatory process involving the community
and key stakeholders to determine a common understanding of the value that the community
attaches to water. It must also determine, by the same process, the level of service required; the
willingness of the community to pay for and help maintain the service, the appropriate water
supply technology and the financial and environmental sustainability of the service. This appears
to be the only part of the proposed amendments that deals with the issue of guidance on price
setting.
• A new and additional Part - Government Waterworks – is proposed to follow Part VII of the
WWA. It deals with two subjects. The first section of this part empowers the Minister to establish
and operate government waterworks, including the granting of water rights and the fixing of
prices, outside the control of the Water Boards. This section also requires that an Environmental
Impact Assessment be carried out prior to construction of the waterworks, and provides for the
disposal of government waterworks to any person after obtaining the approval of Parliament.
The second section deals specifically with the safety of dams. Dams with a safety risk are defined
as those having a capacity of more than 50,000 cubic metres and a vertical wall height of more
than 5 metres, any other category of dams declared to have a safety risk through the Minister’s
notification in the Gazette, and any individual dam declared by the Minister, by written notice, to
have a safety risk. Any dam with a safety risk must be registered with the Minister, and the
Minister may direct the owner of the dam to submit an approved engineer’s report regarding its
safety. He may further direct the owner of such a dam to make specific repairs or alterations in the
interest of public safety,
• Section XI – Offences – is also proposed for amendment, by increasing the maximum fine
applicable to a company or organisation which discharges its industrial effluent in the wrong
place or without the necessary treatment from K2,000 plus K500 for each day the offence
continues to MK100,000, plus the cost of clean-up or environmental rehabilitation.
5.4.5 The draft Irrigation Act (1998)

The full title of the Bill designed to implement the National Irrigation Policy is:
“An Act to make provision relating to the development and management of irrigation, protection of
the environment from irrigation related degradations, the establishment of the National
Commission on Irrigation and Drainage, the establishment of the National Irrigation Board,
irrigation schemes, farmers organisations and for other purposes incidental to irrigation.”
As with the draft legislation dealing with water resources management and water services, the
Irrigation Act (IA) must be considered to be in a fairly early stage of development, and it is not quoted
in detail. However its technical content give a clear indication of government’s intentions and
priorities, and its main features are outlined below:
(a) Environmental and Health Concerns

The first substantive part of the draft IA, Part II, deals with environmental and health issues. It states
that the provisions of the EMA will apply to all irrigation developments, and that the Minister
responsible for irrigation matters will control the grazing of livestock in dambo areas and the banks of
rivers supplying water to an irrigation scheme and prohibit the use of certain specified chemicals on
land under irrigation farming. The Minister is also obliged to carry out such measures as may be
necessary for the better protection of the environment and human health. The last section in this part
deals with the classification of small, medium and large scale irrigation schemes, such definitions to
be published in the Gazette, and states that medium and large scale irrigation schemes will be subject
to environmental impact assessment (EIA) at the time of implementation, and subsequently to such
environmental audit as the Minister may require.
It should be noted that (a) under Part V of the EMA an EIA must be undertaken prior to, rather than at
the time of, implementation; and (b) that irrigation schemes are already provided for in the schedule
of projects for which an EIA may be required. Thus:

• an EIA is mandatory for irrigation schemes designed to serve more than 10 ha (EIA
Guidelines, Appendix B, section A1.2); and
• an EIA may be required for “large-scale irrigation or drainage schemes” (EIA Guidelines,
Appendix B, section B2.1).
(a) National Commission on Irrigation and Drainage

Part III of the draft IA establishes a National Commission on Irrigation and Drainage, whose
membership, financing and mode of operation are not defined. Every irrigation contractor, irrigation
consultant and supplier of irrigation services is obliged to register with the Commission, and Farmers’
Organisations, individual farmers and other stakeholders may register with the Commission at their
discretion. Beyond registration, no further functions of the Board are defined.
(c) National Irrigation Board

A National Irrigation Board is proposed in Part IV. Its functions would be:
• To coordinate irrigation development, ensuring that all such developments comply with the
National Irrigation Policy and the Act, and to coordinate investments by the private sector and
donors;
• To approve standards and guidelines for irrigation development;
• To monitor progress in irrigation development at the national level, and
• To act as a forum for information exchange.
The Board would contain representation from:
• the Department of Irrigation,
• the National Water Resources Board,
• the Ministry responsible for environmental affairs,
• the Ministry responsible for land,
• the National Commission on Irrigation and Drainage,
• a Programme Manager representing the Agricultural Development Divisions,
• the land resources sector,
• the Malawi Investment Promotion Agency,
• the Malawi Chamber of Commerce, and
• NGOs.
Co-opted members would include representatives from:
• the agricultural extension service,
• the National Economic Council,
• the Ministry of Water Development, and
• the Agricultural Development and Marketing Corporation.
(d) Smallholder irrigation – Farmers’ Organisations

Part IX of the draft IA states the right of smallholder irrigation farmers to form farmers’ organisations
with the power to hold land and a water right, and to employ staff to assist in managing their affairs,
as necessary. Under Part V, a farmer’s organisation is empowered to form a farmers’ bank (subject to
the provisions of the Banking Act), with powers to borrow from commercial banks against pledged
securities.
(e) Smallholder irrigation – management of irrigation schemes and tenure of plots

In Part XII it is proposed that each irrigation scheme should elect a Scheme Management Committee,
ensuring a “fair representation of female farmers”. In Part XIV the “main committee” of a farmer’s

organisation is made responsible for the fair allocation of plots among the resident households,
without regard to a farmer’s gender or membership of the organisation. The period of tenure will
normally be ten years, although there is provision to remove a household before expiry of this term in
the event of misuse or failure to use the land, and an appeal system is also provided for.
Part XV sets out the minimum accounting requirements of the main committee of a farmer’s
organisation, and establishes the right of an organisation member to inspect the accounts.
(f) Smallholder irrigation – transfer of existing irrigation schemes and land tenure issues
Section X of the draft IA deals with the handing over of government irrigation schemes to their
present occupants, as represented by farmers’ organisations. The Minister responsible for land will
transfer the land on which the scheme is situated (currently public land) to the farmers’ organisation,
possibly but not necessarily on a freehold basis. The other assets of the scheme, previously the
property of the government – buildings, waterworks, equipment and machinery – may also be
transferred to the farmers’ organisation at the same time, possibly but not necessarily for a fee.
Conditions attaching to the handover will be incorporated in a Memorandum of Understanding
between the two parties.
(g) Smallholder irrigation – grant of title to customary land occupied by self-help irrigation
schemes
Under Part XI, the Minister responsible for land may, at the request of smallholders on an existing
self-help irrigation scheme, or a new scheme on customary land, grant a lease in the name of a
farmers’ organisation, or may apply the Customary Land (Development) Act and register the scheme
as private land in the joint ownership of the its farmers.
(h) Miscellaneous provisions

Part VI of the draft IA provides for the Minister’s determination of fiscal incentives to promote
irrigation farming or ensure its viability, and for technical training and extension services.
On a very different track, Part VII establishes the principles of cost recovery and cost sharing, in
which farmers will share in the investment costs of new irrigation schemes.
Part VIII lists a number of offences under the Act. These include wilful damage to or failure to
maintain irrigation canals; practices which are destructive or potentially destructive to the catchment
of an irrigation scheme; grazing livestock in dambo areas under irrigation or in any irrigated land in
which crops are present; causing or refusing to assist in fighting fire on irrigated land; use of
prohibited chemicals or substances, and, in the case of contractors, consultants or service providers,
failure to register with the National Commission on Irrigation and Drainage.
5.5 WATER SECTOR FUNCTIONS AND DECENTRALIZATION

Sections 2 and 22 of the second schedule to the Local Government Act (1998) include water-borne
sanitation and water supply as functions of the Assemblies:
“2.-(1) An Assembly may –
(a) establish, maintain and manage services for the collection and removal and treatment of solid
and liquid waste, and the disposal thereof whether within or without its area and may compel
the use of its services by any body of persons to whom the services are available;
(b) compel and regulate the provision, construction, use, maintenance and repair of drains, latrines
and receptacles for solid and liquid waste and the connection of any premises with any public
sewer or drain;
(c) require the use of any sanitary device under its control and regulate the methods of dealing
with night soil or solid or liquid waste of any description whatsoever:

Provided that nothing in this paragraph shall require an Assembly to accept for disposal any solid or
liquid waste which in the opinion of the Assembly are hazardous or are likely to be deleterious to the
operations of any sewage treatment plant or land fill site or which might contaminate any ground
water. …
(9) Subject to the provisions of any other written law, an Assembly may make provision for the supply
of potable water by way of stand pipes, boreholes or other means and may, if it thinks fit, make
reasonable charges to consumers and agree terms with any water undertaking or authority for the
supply of water to any outlet or facility provided by the Assembly. …”
“22. The Assembly shall perform the following functions –

(c) the provision and maintenance of water supplies in liaison with the Ministry of Water
Development, where applicable; …”
The listed functions include water-borne sanitation services and mains water supply, currently the
responsibility of the Water Boards in urban areas; and the installation of boreholes and piped water
projects (the latter mentioned specifically in the National Decentralisation Policy), which are rural
services now provided by the Ministry of Water Development. The options for decentralisation are
rather different in the two cases.
Water-borne sanitation and mains water supply are capital-intensive services of a local nature, i.e.
they are designed to serve specific locations and are not comparable, say, to the national grid in the
power sector. Thus, the organisation of a Water Board in fact comprises an aggregation of discrete
water/sanitation infrastructures sharing a common administration and a technical support unit. This
conformation, and review of the existing legislation, lead to the following possibilities:
(1) The Water Boards could be split up and decentralised to the geographically appropriate
Assemblies. This would require a new Act of Parliament. Decentralising the administration of
the former Boards would probably not be problematic, but it is improbable that each
Assembly could support the necessary critical mass of technical expertise to maintain its
water and sanitation services. Maintenance could (a) be privatised, or (b) be retained by the
Assemblies at regional centres but made available to other Assemblies at cost.
(2) The Water Boards could continue very much as at present but could sell water and sanitation
services in bulk to the Assemblies they serve. Thus, only the consumer end of the
administration would be decentralised. Under section 37 of the LGA an Assembly may enter
into contracts for the supply of goods and services, and under section 18 of the WWA a Water
Board may enter into contracts to supply water and sanitation services to a local authority.
(3) Any combination of options (1) and (2).
(4) Leave the situation as it is. An Assembly may provide water and sanitation services, but
section 2 of the LGA does not oblige it to do so.
Rural water supply generally consists of capital works in installing gravity fed surface water supply
and the construction of boreholes, maintenance of these structures and, increasingly, work with
communities to engage their participation in piped water and borehole maintenance. These functions
would appear to be entirely suited to decentralisation without the need for any revision of current
legislation. Planning and design functions would require the technical support of the Ministry of
Water Development, and detailed design could probably be privatised.
Irrigation services are likewise a combination of planning and design, capital development and
extension/community development functions. National planning and coordination would be expected
to remain the functions of central government, shared between the Department of Irrigation and the
proposed National Irrigation Board. But extension, community institutional development and
investment in new irrigation schemes and dams would be suitable for decentralisation to District
Assemblies within their services to the agriculture sector. The draft Irrigation Act does not provide
specifically for the new local government structures, and would need to be revised accordingly once
the split of responsibilities has been determined.

6. FORESTRY
Principal statute: The Forestry Act, 1997 May, 1997
Policy document: National Forest Policy of Malawi January, 1996
Other publications: A Guide to the Forestry Act, 1997 First Version, June 1998
6.1 PREAMBLE
Most issues in the forest sector derive from a single fundamental problem: the national demand for
forest products (mainly biomass for energy purposes, but also poles for building, sawn timber and
non-timber forest products) exceeds the current sustainable production by a factor of (about) two. The
shortfall is met by the liquidation of growing stock: thus two factors - population growth and the
depletion of the resource base - combine to exacerbate the imbalance at a rate which is progressively
increasing. The problem is usually seen as two components: over-exploitation or resource mining in
the customary forests, and the failure of private-sector plantation forestry to come to the rescue. These
components are very closely related.
For many years the deforestation of customary land was a matter of forest clearance for agricultural
purposes, i.e. a more or less permanent change in land use. The conversion of indigenous woodland to
farmland produces a one-off harvest of between fifty and one hundred times the sustainable annual
fuelwood yield.1 Although technically only a by-product of agricultural expansion, this supply was
sufficient to mask the imbalance between demand and sustainable production, and only quite recently
has fuelwood supply become problematic in southern and parts of central Malawi where very little
forested customary land remains. Partly because of the apparently limitless “by-product” supply and
partly because of the perception of customary forests as an open-access resource, fuelwood and other
forest products have been consistently under-valued and equally consistently over-exploited close to
centres of demand. Because trees are both immobile and highly visible, the depletion of forest
resources has attracted considerable public attention.
6.2 THE NATIONAL FOREST POLICY, 1996

The Forestry Department was the first of Malawi’s public institutions to introduce a radically altered
NRM policy, one which for the first time clearly shifted the emphasis away from Government and
towards the resource users as the primary agents of management. The preamble to the 1996 policy
document criticises the legislation then in force (the 1942 Forest Act, which was replaced by the
Forestry Act in 1997) as an outdated and excessively narrow instrument which recognized no rights of
individuals or communities to own, manage and utilize forest resources on customary land; neither did
it provide an adequate enabling framework to encourage private sector involvement in forest
conservation and management on leasehold or freehold land. This section of the manual attempts to
summarise the key points of the new policy, but does not discuss the many individual strategies in
detail. It should be said here, though, that the policy document is very well prepared and thorough,
and should be read in its entirety.
The goal and general objectives of the NFP are expressed as follows:
“The goal of the National Forest Policy is to sustain the contribution of the national forest resources to the upliftment of
the quality of life in the country by conserving the resources for the benefit of the nation.”
1
For miombo woodland, the standing stock might be 50-100 m3/ha, while the mean annual increment (MAI) is
usually estimated at between 0.5 and 2 m3/ha.

“The general objectives of the policy are to satisfy the people’s many diverse and changing needs, particularly those of the
rural people who are most disadvantaged. The general objectives will, therefore, aim at:-
2.2.1 Allowing all citizens to have regulated and monitored access to some forest products;
2.2.2 Contributing towards improving the quality of life in the rural communities and providing a stable local economy,
in order to reduce the degenerative impact on the environment that often accompanies poverty;
2.2.3 Establishing appropriate incentives that will promote community-based conservation and a sustainable
utilisation of the forest resources as a means of alleviating poverty, including on-farm trees, and fostering the
growing of trees by all sections of the communities in order to achieve sustainable self-sufficiency of wood and
forest-derived products.”
A number of strategies for achieving these objectives are outlined in the policy. They include:
• enacting a law that removes restrictions to access to the use of forests and forest products, and
promotes popular participation in forest management (this was achieved with the enactment
of the Forestry Act of 1997);
• the promotion of skills in proven methods of forest utilization and value-adding processes;
• encouraging the establishment of investment incentives for small and medium scale forest
industries in the rural areas;
• providing support to sustainable and profitable networks of rural marketing and transport
services for forest products;
• promoting increased efficiency in managed forest production, including licensed harvesting of
mature trees and non-timber forest products and grazing;
• encouraging agroforestry as a technology for improving soil fertility as well as meeting some
of the farmers’ needs for fuelwood and fodder;
• promoting communal and individual ownership of forests;
• promoting community and individual tree nurseries;
• encouraging community and individual marketing of seeds, seedlings and other forest
products, and
• strengthening and maintaining a regular reward system for tree planting.
The policy lists 18 specific objectives. These are reproduced below, in full except where indicated
otherwise. Some of the specific objectives are fundamental to the new policy shift – these are printed
in bold type and followed by some discussion. The other specific objectives are concerned with more
traditional research, development and management responsibilities, the internal institutional
environment and international obligations: these are not discussed.
“2.3.1 providing an enabling framework for promoting the participation of local communities and the private sector in
forest conservation and management, eliminating restrictions on sustainable harvesting of essential forest products by
local communities, and promoting planned harvesting and regeneration of the forest resources by Village Natural
Resources Management Committees (VNRMCs);”
Key strategies listed under this objective include encouraging the co-management of forest resources
through promoting the formation, training and support of VNRMCs; ensuring that VNRMCs are
entrusted with the collection of funds realized from the sale of forest products from customary land,
and promoting the usufruct use of forestry resources by community and individual tree growers.
The word “usufruct” means “the right of temporary possession, use or enjoyment of the advantages of
property belonging to another, so far as may be had without causing damage or prejudice to it.”2 On
unallocated customary land or within Forest Reserves, the “other” owner is the Malawi people, with
the Traditional Authority or the State, respectively, holding the resources in trust for the nation.
2
The Shorter Oxford Dictionary, 1978.

None of the strategies listed under this objective refer back to the private sector’s role in forestry, but
two of the strategies listed under objective 2.3.2 (below) seem appropriate here:
“2.3.2.3 promote the leasing of plantation areas for planting and management by the private sector in
selected areas on a pilot scale;”
“2.3.2.5 introduce marketing and pricing policy reforms that provide industrial woodfuel users with
incentives to invest in tree planting and woodland management;”
The intention is clearly to encourage small and large scale investors to enter the plantation sector.
Pricing policy is critical here, yet in 1996 it remained an unresolved issue. In the current context of
market liberalization it might be thought that any attempt by government to control produce
marketing is out of place, but the industrial plantation sector is unusual in that it remains almost
entirely in government ownership. Government cannot help but have a role in setting prices, and
effectively wields complete control over the market. Until recently the Forestry Department pursued a
policy of cost recovery for the plantations, with the aim of keeping the prices of plantation produce as
low as possible in an attempt to compete with produce from the indigenous forests. This policy was a
failure for two reasons. Firstly, it was impossible to compete with “bush timber” under the existing
open-access regime. Secondly, the use of cost recovery as a basis for pricing (i.e. the price included
no margin, or profit) effectively barred the entry of the private sector into plantation forestry – no
entrepreneur could ever compete with the government. The purpose of the marketing and pricing
policy reforms referred to in strategy 2.3.2.5 was to overcome this problem.
“2.3.2 empowering rural communities to manage the forest resources, fostering ownership or usufruct of trees, and
ensuring that such trees are sustainably utilized for the benefit of both present and future generations;”
This is largely a re-statement of the first objective. The strategies identified include the establishment
of a dialogue with rural communities to ensure that they understand the NFP, the encouragement of
fuelwood sales from planted trees and the protection of herbalists’ rights to market and benefit from
their knowledge of non-timber forest products.
“2.3.3 providing an enabling environment for access to all government controlled plantation resources by small, medium
and large-scale enterprises and processors using forest products, and instituting transparent and competitive bidding
procedures for the disposal of government-owned timber, while protecting the interest of small scale enterprises and
processors;”3
This objective, which has since been successfully implemented in the Viphya and Zomba plantations,
establishes a first step towards the privatisation of the industrial plantations. Harvesting and some of
the processing operations that were formerly undertaken by Government are now carried out by
private operators – both large and small – within a regulated and fully commercial framework.
“2.3.4 formulating, applying and evaluating environmental policies, plans and legislation, in partnership with other
organisations and institutions so as to allow the attainment of the national policy objectives;”
“2.3.5 providing appropriate incentives for both community and private sector participation in the identification and
protection of key sites of unique biodiversity and water catchment areas, in partnership with other Ministries,
organisations, institutions and individuals;”
Both of these objectives refer to the management of areas that require special consideration on
environmental grounds, and invoke the general principles of full stakeholder participation in the
design and implementation of management plans (where stakeholders includes local or peripheral
communities, NGOs and other interested parties), the equitable sharing of any benefits deriving from
the sustainable exploitation of the area’s resources, and respect for the rural population’s knowledge
of the ecology of the area. While neither of these objectives apply specifically to Forest Reserves, the
latter would seem logical targets for the approach outlined.
3
As amended by a 1999 Cabinet Paper

“2.3.6 ensuring that the harvesting and exporting of timber and other forest products are not in violation of national and
international laws and regulations, and of the customary rights of indigenous people, and resisting coercive influence that
is occasionally exerted by trans-national corporations;”
“2.3.7 undertaking … relevant research programmes, whenever necessary in collaboration with local or external
organisations, to generate usable technologies in order to improve and achieve sustainable management and utilisation of
both planted and natural forest and tree resources;”
“2.3.8 developing and disseminating to target groups, improved technologies for the development and management of
trees and forests, optimal harvesting and utilisation of forest product, as well as silvicultural and protection measures so
as to ensure sustainable production of a wide range of wood and non-wood products;”
“2.3.9 developing a full and comprehensive forestry extension service to support community programmes and encouraging
the active participation of both men and women in all the activities designed to promote afforestation and conservation for
improved sustainability;”
This is a reference to the enormous institutional task of re-shaping the Forestry Department from its traditional policing role to one
that is primarily to support new initiatives in the co-management and community management of forest resources.
“2.3.10 initiating and promoting environmental education, extension and awareness programmes, in partnership with
other relevant bodies to promote and support the conservation and protection of forest ecosystems and the growing of
trees by individual companies, estates, local communities and authorities, including the integration of forests and trees
into farming systems, soil conservation activities and land-use systems;”
“2.3.11 reducing dependence on woodfuel as a source of energy;”
“2.3.12 accelerating and intensifying efforts to manage forest plantations for the production of timber and industrial
wood products, and providing the correct incentives for the development of primary and secondary forest industries with a
view to achieving self-sufficiency and to generating exports;”
Two objectives are articulated here, one being to continue to manage the Government-owned
plantations so as to maximise their productivity (through, for instance, retaining and training the
necessary staff) and the other being to prepare the way for their privatisation and to encourage new
investments in plantation forestry. Sometimes the strategies outlined conflict with each other. Thus:
“2.3.12.4 introduce incentives to promote investments in forest industries;”4
“2.3.12.9 conduct annual reviews of stumpage rates, using cost recovery as the basis for fixing the rate,
and ensure that the rate for naturally grown indigenous timber is higher than that of the planted trees …;”
The negative effect of using cost recovery as a basis for stumpage rates has been discussed on page
6:3 above. Two of the strategies listed here provide a clear indication of a long-term intention to
privatise the plantations:
“2.3.12.7 review the suitability of separating the commercially productive component of the Forestry
Department from the protection and extension component;”4
“2.3.12.8 examine the feasibility of privatising the industrial plantations; …”4
“2.3.13 providing information on the status of the constituted and proposed forest reserves;”
While on the surface this appears a traditional and fairly unremarkable policy objective, one of the
listed strategies under this subheading is:
“2.3.13.3 promote consultations with communities having concerns over the expansion of forest reserves
for the promotion of joint management as an alternative approach;”
This is a decidedly new approach, and one that has already been put into practice on a trial basis.
Indeed, the experiment with joint management of selected blocks of the Liwonde Forest Reserve (in
which utilisation rights have been accorded to VNRMCs representing boundary communities on the
4
As amended in a 1999 Cabinet paper

basis of agreed management plans) goes further than the stated policy in applying joint management
or co-management principles to an existing Forest Reserve rather than to a proposed expansion.
“2.3.14 developing requisite high quality human resources through education and training in order to strengthen the
institutional capacity required to effectively manage the forest resources;”
“2.3.15 creating and maintaining an environment where every employee is able to reach his or her maximum potential in a
climate favouring innovation and excellence in the development, dissemination and use of technologies for the
management and enhancement of forest and tree resources;”
“2.3.16 promoting the management of cross-border forest and forest resources;”
“2.3.17 comply with the agreed national obligations arising from bilateral, regional and international environmental and
other related conventions to which Malawi is a party;”
“2.3.18 forming a multi-disciplinary and multi-sectoral Board, entrusted with the responsibility of monitoring the
development, conservation and sustainable use of forest and tree resources in the country for the benefit of Malawians.”
The remaining parts of the NFP deal with:
• Cross-sectoral issues, “ensuring that efforts to address the many interrelated causative factors involved in the
management of forest resources are not fragmented, overlapping and ineffective;” This section deals with the
issues relating to co-ordination with other NRM institutions, with the Ministry of Agriculture,
with the Agricultural Research and Extension Trust, with NGOs and with other policies. It
also proposes a biennial review of the NFP and a pledge to ensure that any changes are
introduced in harmony with other related policies.
• Gender issues, “ensuring that women’s role in forest and tree resource utilisation and management receives due
attention;”
• Non-profit forestry activities. This section lays out a strategy to reduce dependence on the
government budget by financing non-profit activities such as biodiversity conservation,
catchment protection and research from (a) international funding sources, where national
forest resources are of global significance, and (b) the establishment of new revenue earning
arrangements from activities which depend on forest protection, e.g. water supply and hydro-
electric power generation.
• Eco-tourism development, “ensuring that the development of the eco-tourism industry is in consonance with
efforts to preserve the ecology, conserve the country’s biodiversity, and protect the character and beauty of Malawi;”
• The legal framework. This is essentially a statement of intent to prepare and enact a new
principal statute to embody all of the elements of the new policy, a proposal which has since
been achieved.
Implementation of the new policy will be a major undertaking, implying as it does a major
reorientation of the Forestry Department from a policing to an extension role. It must be anticipated
that the uptake of community forestry will be a slow process, and until it is complete all customary
forest that is not so managed (i.e. forest which is not designated as a Village Forest Area or is
otherwise actively protected by individuals or communities) will remain under the control of the State.
In the short term, therefore, policing will remain an important role for the Forestry Department.
Community management of customary forests is only part of the answer to the provision of a
sustainable supply of forest products. Even if all of Malawi’s forests, both the indigenous woodlands
and exotic plantations, were actively harvested on a sustainable basis, the production of fuelwood,
poles and timber would still fall a long way short of current demand. In the medium and longer term
the only way in which Malawi can hope to be self-sufficient in forest products is through a rapid
expansion of the plantation sector,5 possibly to cover 0.5 to 1 million hectares.6 It has been claimed
5
Exotic plantations typically yield 10-25 m3/ha, ie productivity is an order of magnitude higher than that of the
indigenous miombo woodland.

that the spontaneous development of private-sector plantation forestry has been prevented by former
GoM pricing policies, under which output prices on state-owned plantations were subsidised in an
attempt to compete with the (mostly illegal) trade in indigenous products. But in reality the primary
constraint has always been the ready availability of “bush timber” which no-one owned or valued.
This is the essential link between the new community ownership policy7 and the prospect for long-
term self-sufficiency in forest products: until the prices of indigenous wood products are raised to
approach their economic values through the closure of access to the customary forests, private sector
plantation forestry cannot begin to assume its vital role in the production system.
Although implementation of the “community ownership” principle has barely begun, fuelwood
scarcity in some parts of southern Malawi has already strengthened prices to the point at which trees
have become a viable cash crop, and in a very small way the plantation industry can be said to have
started.8
6.3 THE FORESTRY ACT, 1997
6.3.1 Approach
The National Forest Policy was approved by Cabinet in January 1996, and was embodied in a new
Forestry Act passed by Parliament in April 1977. The document “A Guide to the Forestry Act 1997”
provides a useful systematic explanation of the various parts of the Act, but a different approach is
taken here. Instead, this manual examines the legal framework for the management of forests and
trees to assess how far and in what ways the National Forest Policy is represented in the new Act. The
subject areas for this analysis are:
• the management of indigenous forest on customary land;
• the management of indigenous forest on private land;
• the management of Forest Reserves and Protected Forest Areas;
• woodlots and plantation forestry, and
• cross-cutting issues, including law enforcement, fire.
6.3.2 Management Of Indigenous Forest On Customary Land

Customary forests receive specific attention under section 3 (the purposes of the Act) and section 5
(the duties of the Director of Forestry):
“3. The purpose of this Act are-
(b) to augment, protect and manage trees and forest on customary land in order to meet basic
fuelwood and forest produce needs of local communities and for the conservation of soil and
water; …”
“5. The Director of Forestry shall be responsible for-
(d) promoting participatory forestry;
(e) facilitating the formation of village natural resources management committees and the
establishment of rules of village forest areas; …
6
P.D. Hardcastle, former director of the Forestry Research Institute of Malawi, in a presentation to the E/NRM
donor group, USAID Lilongwe, March 1998.
7
Although the term “community ownership” is used here, the new policy and legislation provides also for the
ownership of customary forest resources by individuals.
8
Thus, even if community forestry were to fail, the exhaustion of the customary forests would automatically
raise prices sufficiently to trigger investment into plantations.

(k) promoting the empowerment of local communities in the augmentation, control and
management of customary land trees and forests in accordance with the provisions of this Act”
Part V of the FA – Customary Land Forest – sets out the basic framework for forest management on
customary land, although various provisions found elsewhere in the Act also apply.
“29. The purpose of this Part is to provide for promotion of participatory forestry on customary land
through protection, control and management of trees and forests by the people on customary land, the
demarcation and management of village forest areas, ownership of indigenous forest trees,
establishment of tree nurseries and regulation of forest produce.”
The new policy for the management of forests on customary land builds on and substantially redefines
a concept which originated in the colonial era, that of the Village Forest Area (VFA). At
Independence there were in excess of 2,000 VFAs. At that time these protected forests were generally
small, were established on the initiative of, and under the direct control of, the Village Headman, and
were in many cases not exploited – they were simply reserves, while villagers satisfied their need for
forest products from the surrounding unprotected bush. The new concept is quite different – the VFA
defines an area within which a forest will be conserved and utilized according to some kind of
management plan, whether informal or formal, and provides a means of demonstrating the
“protection” of trees or forests required in section 34. A VFA may be managed within the formal
framework of a Forest Management Agreement (section 31), or without such agreement (section 30):
“30. Notwithstanding anything contained in this Act, any village headman may, with the advice of the
Director of Forestry, demarcate on unallocated customary land a village forest area which shall be
protected and managed in the prescribed manner for the benefit of that village community.”
Here, “protected and managed in the prescribed manner” is taken to mean “protected and managed in
accordance with the advice of the Director of Forestry, or as laid down in the regulations”.
“31.-(1) For the proper management of village forest areas, the Director of Forestry may enter into a
forest management agreement with a management authority providing for-
(a) the specifications of the nature of the forestry and other practices to be followed;
(b) the assistance to be provided by the Department of Forestry and provision for use and
disposition of the produce and revenue therefrom;
(c) allocation of land to individuals or families for afforestation and revocation of such allocation if
applicable provisions of the agreement are not adhered to by the occupier of the land so
allocated;
(d) formation of village natural resource management committees for the purposes of managing
and utilizing village forest areas.
(2) Subject to the performance of unfulfilled obligations under a forest management agreement to the
right of third parties, a forest management agreement may be terminated by either party.
(3) In the event of any dispute arising under a forest management agreement, the matter shall be
referred to the Minister:
Provided that any party aggrieved with the Minister’s decision may apply to the High Court for a review
of the Minister’s decision.
(4) Any area designated as a village forest area but without the forest management agreement shall be
managed in accordance with section 30.
(5) Any educational, religious or interested institutions in consultation with a village headman may
demarcate, establish and manage a forest area or woodlot on customary land with the advice of the
Director of Forestry subject to the provisions of subsections (1), (2) and (3).”
The “management authority” and the “village natural resources management committee” referred to in
section 31 subsection (1) above are defined in section 2 of the Act as follows:
“management authority” in relation to a village forest area, means a person designated as the
management authority pursuant to the agreement establishing the village forest area;”
““village natural resources management committee” means a committee elected by stakeholders of the
village forest areas.”

A VNRMC may make rules for the management of a VFA, and under section 33 of the FA such rules
are required to be approved by the Minister responsible for forestry. Once approved, the rules would
have the status of by-laws, and would be legally enforceable.
Section 32 empowers the Minister to make rules applying to all customary land outside Forest
Reserves and Protected Forest Areas9. Subsection (2) provides some examples of the kinds of rules
that the Minister may make, including rules to:
“(a) provide for the protection of water catchment and fragile areas, rehabilitation of degraded areas
and any other activity which would be conducive to good land husbandry;
(b) facilitate the establishment and management of forest by village natural resources management
committees for the benefit of local communities;
(c) encourage District Councils, non-governmental organizations and the private sector to contribute
towards the provision of forestry extension services, as well as the establishment and management
of plantations in accordance with guidelines provided by the Department of Forestry;
(d) provide for the establishment and maintenance of nurseries to provide seedlings for tree planting
programmes;
(e) authorize the payment of grants or bonuses out of public funds for the encouragement of forestry;
(f) provide for the declaration of endangered or essential tree species and their management;
(g) prescribe a mechanism for sharing costs and benefits between the Department of Forestry and
village natural resources management committees in regard to forest produce confiscated from
customary land forests.”
Section 34, the last section in Part V, contains a statement that is quite unique in the current NRM
legislation, clearly conferring the ownership of and the right to benefit from trees or forests that are
sustainably managed by individuals or communities on their own land.
“34.-(1) Any person who or community which protects a tree or forest, whether planted or naturally
growing in any land which that person or community is entitled to use, shall acquire and retain the
ownership of the tree and forest with the right to sustainable harvest and disposal of the produce.
(2) Any tree or forest owner under subsection (1) may seek the advice of the Director of Forestry on the
management and utilization of his tree or forest.”
This section could be read as a guiding principle for the management of customary forests, but
interpreted in that way it would negate the concepts of VFAs and Forest Management Agreements
(why negotiate an agreement with government when all that is required is to protect one’s trees?), and
had it been intended as a guiding principle it should have appeared at the start of this Part of the Act.
In fact, it is understood to have been added to safeguard the rights of persons or communities who
protect indigenous trees – especially fine timber trees – on their own (i.e. allocated) agricultural land,
since under the former legislation there was nothing to stop the government from selling such trees to
a third party. Section 34 is potentially a source of considerable confusion, and should be considered
for future amendment.
In Part VIII of the FA (Utilization of Forest Produce in Forest Reserves and Customary Land) section
50 re-states the historic right of local residents to collect forest produce for their own domestic
consumption from customary land that is not a VFA. It also confers on a VNRMC the right to dispose
of (i.e. sell, or make commercial use of) any wood surplus to community domestic needs arising from
any activity on customary land. This provision would cover activities that are not part of a forest
management plan – for instance the clearance of forest for the construction of a school, church or
other public building.
“50.-(1) A resident of any village may collect forest produce from customary land other than village
forest areas for domestic use.
9
Section 23 of the FA requires that the creation of a Forest Reserve must be preceded by the acquisition of the
land by Government, i.e. its conversion to public land. The land on which some existing Forest Reserves are
located has not however been converted in this way. Protected forest areas may be established on customary
land.

(2) Any disposal of forest produce in a village forest area shall be in accordance with the provisions of
the applicable forest management agreement.
(3) Where the wood arising from any activity on customary land is in excess of community domestic
needs, the excess wood shall be disposed of by the village natural resources committee for the benefit
of that community.”
Although section 50 adds to the general and specific rights to harvesting and disposal contained in
section 31, section also 46 states that any harvesting of forest products from customary land requires
the issue of a licence by the Director of Forestry:
“46. Unless under licence, no person shall-
(a) cut, take, fell, destroy, uproot, collect and remove forest produce from a forest reserve,
customary land, public land and protected forest area; …”
The use rights and attached conditions set out in Part V and in section 50 do not appear to match up
very clearly with the requirements for a licence under section 46, where some of the clauses seem
appropriate for Forest Reserves but inappropriate for customary land. (For instance, both cultivation
and residence on customary land appear to be offences unless licensed by the Director of Forestry). In
practice, section 46 has been interpreted as follows:
(1) A licence is not required for the taking of forest produce for domestic consumption from
customary land that is not a VFA.
(2) A licence is required for the taking of forest produce for commercial purposes (i.e. for sale)
from customary land that is not a VFA. At present such licensing has been suspended in the
interest of forest conservation.
(3) A licence is required for the taking of forest produce for commercial purposes (i.e. for sale)
from VFAs which are not bound by a Forest Management Agreement (section 30). If the
Director is satisfied that the VFA is being properly managed he will issue such a licence.
(4) A licence is not required for the taking of forest produce for commercial purposes (i.e. for
sale) from VFAs which are bound by a Forest Management Agreement (section 31). In this
case the agreement itself stands in place of a licence from the Director, and the VNRMC may
issue harvesting licences to its members.
Finally, under Part XII of the FA (Miscellaneous), sections 81 and 82 also require the issue of a
licence for charcoal production and for the use of wood for several commonplace village industries,
including brick making, wood carving and the manufacture of bamboo baskets and chairs:
“81.-(1) No person shall make or sell charcoal from indigenous timber or tree except pursuant to a
licence issued under this section.
(2) Upon application in the prescribed form, a licensing officer may, where the officer finds that the
making of charcoal shall utilize plantation timber or indigenous timber or trees consistently with the
applicable forest management agreement or forest plantation agreement, issue a licence to make
charcoal in such quantity and from such timber or trees as may be specified in the licence.
82. No person shall engage in commercial processing of any wood or forest produce without a permit
from the Director of Forestry and such commercial wood processing industries shall include-
(a) tobacco curing, brick and tile making, wood carving, lime making, bamboo baskets making and
chair making; and
(b) wood processing industries, including sawmilling, veneer and plywood, blockboard, fibre and
particle board, pulp and paper and any other industries.”
The Director is not obliged to issue licenses for the activities listed above. Under section 52 he may
refuse to issue a licence if the applicant fails to comply with the necessary conditions; has had a
licence revoked within the past 12 months; has been convicted of an offence under the FA within the
past 24 months, or if the Director considers the applicant to be otherwise unsuitable or if the interests
of forest management are best served by imposing a temporary freeze on licensing the activity in
question. Further, where circumstances require, the Director may revoke a licence already issued
(under section 53) or suspend it (under S 51).

Again, sections 81 and 82 are interpreted are interpreted in a comparable way to section 46 – licences
are required for charcoal making or commercial wood processing in all instances except within a VFA
bound by a Forest Management Agreement. Such licensing has been suspended with respect to all
customary land that is not a VFA.
Table 6.1 below summarises the current legal framework for the harvesting of indigenous forest
products from customary land, excluding customary land that has been declared a Protected Forest
Area (see section 6.3.4). The legal framework for managing woodlots and plantations on customary
land is discussed in section 6.3.5.
Table 6:1: Legal framework for utilizing indigenous forest products from unallocated
customary land
Legal requirements for harvest of forest products
Domestic Commercial harvesting and disposal

Management Consumption
regime (S 50) Sale of fuelwood and Charcoal production Other wood-based
other forest products (S 81) industries (S 82)
(S 46)
No forest 1. Special species 1. Special species 1. Special species 1. Special species

management restrictions (S restrictions (S 33) restrictions (S 33) restrictions (S 33)
33) 2. Harvesting licence from 2. Charcoal production 2. Wood processing
the DoF – currently licence from the DoF licence from the DoF
suspended – currently – currently
suspended suspended
VFA without 1. Special species 1. Special species 1. Special species 1. Special species
Forest restrictions (S restrictions (S 33) restrictions (S 33) restrictions (S 33)
Management 33) 2. Harvesting must be in 2. Harvesting must be in 2. Harvesting must be in
Agreement 2. Harvesting accordance with DoF accordance with DoF accordance with DoF
(S 30) must be in management management management
accordance prescription prescription prescription
with DoF 3. Harvesting licence from 3. Charcoal production 3. Wood processing
management the DoF licence from the DoF licence from the DoF
prescription
VFA with 1. Special species 1. Special species 1. Special species 1. Special species
Forest restrictions (S restrictions (S 33) restrictions (S 33) restrictions (S 33)
Management 33) 2. Harvesting must be in 2. Harvesting must be in 2. Harvesting must be in
Agreement 2. Harvesting accord with accord with accord with
(Ss 31, 50) must be in FMA/bylaws and may FMA/bylaws and may FMA/bylaws and
accord with need a licence issued by need a licence issued may need a licence
FMA/bylaws the VNRMC by the VNRMC issued by the
VNRMC
Notes: (1) Under section 33 the Minister may impose restrictions on the harvesting of
endangered or vulnerable tree species. Such restrictions might (but need not
necessarily) apply to all harvesting situations.
6.3.3 Management Of Indigenous Forest On Private Land

There are three categories of private land in Malawi: freehold land, leasehold land and customary land
converted to private land (ndunda) under the Customary Land Development Act of 1967. Leaving
aside urban freehold and the smallholder ndunda plots, private land consists primarily of agricultural
estates: less than 50,000 ha of freehold estates (mainly tea) and 1.15 million ha. of leasehold estates,
comprising two large sugar plantations of around 30,000 ha. in total and about 30,000 tobacco farms
averaging less than 40 ha. each. In 1994/95, leasehold estates included more than 300,000 ha. of
indigenous forest10.
10
Gossage 1996: Estate Land Utilization Study; Land Use on the Tobacco Estates of Malawi. This includes
natural woodland (156,000 ha.) and woodland regrowth (151,000 ha.).

There is no part of the FA which deals specifically with forestry on private land, but Part XII
(Miscellaneous) contains the following provisions:
“83.-(1) No indigenous wood shall be moved from any private land to any place outside the private land
without a permit issued by the Director of Forestry. Any revenue realized from the removal of the
indigenous wood from leasehold land shall all accrue to the village natural resources management
committee in the area.
(2) No indigenous endangered tree species shall be cut down without the written permission of the
Director of Forestry.
(3) Indigenous wood may be used on a sustainable basis for any purpose within the demised area
without the written permission of the Director of Forestry. …”
“85. On application by a lessee in accordance with the Land Act, the Director of Forestry may grant
permission for forest produce to be removed from, and used outside, the demised premises on payment
of all prescribed royalties to the village natural resources management committee in the area.”
Notice that freehold land and leasehold land are treated differently. Although the owners of both types
of land are permitted free on-site use of any sustainable surplus of indigenous wood, and both require
a permit for the removal of wood to another location, surplus production from freehold land is taken
to be the property of the landowner, while surplus production from leasehold land is taken to be the
property of the surrounding communities. This is a modification of the current leasehold covenant
contained in the Land Act Regulations, 1965, which prohibits the sale of indigenous wood cut from
leasehold land (see Chapter 4, page 4:6).
6.3.4 The Management Of Forest Reserves And Protected Forest Areas

Forest Reserves and Protected Forest Areas receive specific attention under section 3 (the purposes of
the Act) and section 5 (the duties of the Director of Forestry):
“3. The purpose of this Act are-
(a) to identify and manage areas of permanent forest cover as protection or production forest in
order to maintain environmental stability; to prevent resource degradation and to increase
social and economic benefits; …
(c) to promote community involvement in the conservation of trees and forests in forest reserves
and protected forest areas in accordance with the provisions of this Act; …”
“5. The Director of Forestry shall be responsible for –
(a) planning, promoting, conducting and assisting in the activities required to maintain, restore
and develop the forest cover necessary for soil and water conservation, maintenance of
biological diversity and the supply of forest produce; …
(j) exercising the control and the management of forest reserves and protected forest areas in
accordance with the provisions of this Act; …”
Although subsections 3 (a) and 5 (a) do not refer specifically to the reserves and protected areas, they
emphasise the important national role of forest cover in protecting soil and water resources, a primary
strategy for which is the imposition of formal legal protection to key areas of forested land. Part IV of
the FA deals with the establishment and revocation of Forest Reserves and Protected Forest Areas and
also covers their management, although not in detail. Various other parts of the Act also contain
provisions that relate to these areas.
The principal distinction between a Forest Reserve and a Protected Forest Area is that the former is
created on public land (which has been acquired by the State for the purpose of forest protection),
while the latter is applied to customary or private land which may have uses other than forestry. Thus:
“22. The Minister may, after consultation with the Minister responsible for land matters, by order
published in the Gazette, declare any public land not already reserved for another public purpose
to be a forest reserve.
23. Any area of land proposed for a forest reserve and which is not public land shall first be acquired in
accordance with the provisions of the Land Act and the Land Acquisition Act. …”

“26.-(1) Where the Minister finds that the protection of soil and water resources, outstanding flora and
fauna requires that any area of land be maintained or established as a forest, the Minister may, by
order in the Gazette, after consultation with the Minister responsible for land matters, the Minister
responsible for agriculture, the Minister responsible for Irrigation and Water Development, the
owner or occupier and, in the case of customary land, the traditional authority, declare such land
to be a protected forest area.
(2) Where the Minister considers that land which requires protection as a forest reserve or protected
forest area is liable to serious degradation if not immediately protected the Minister may declare
such land to be a protected forest area for such period not exceeding one year as may be
necessary to complete the consultations required by section 22 or subsection (1).”
A Protected Forest Area may therefore be an intermediate stage in the creation of a Forest Reserve, or
it may be a permanent land management category in its own right.
Section 28 empowers the Minister, on the recommendation of the Director of Forestry, to revoke or
modify a Forest Reserve or a Protected Forest Area by order published in the Gazette, although this
cannot be done until an environmental impact assessment (EIA) has been carried out.
The management of a Forest Reserve must be conducted in accordance with a management plan
drawn up by the Director of Forestry. But section 25 gives the Director the power to design and
implement such a management plan in collaboration with the local communities, a clear expression of
the new forestry policy:
“24. In assuring the protection and management of forest reserves, the Director of Forestry shall
prepare management plans as stipulated in section 5.
25. The Director of Forestry may enter into agreement with local communities for implementation
of the management plan that is mutually acceptable to both parties.”
The measures to be implemented in the management of a Protected Forest Area will be specified in
the Minister’s declaration of the PFA as detailed in section 26. However it should be remembered that
such a declaration will follow (or in urgent cases be followed by) detailed consultations with the
landowner and other interested parties, and section 27 allows considerable freedom for the
development of an appropriate management regime:
“27. A declaration made under section 26 shall state the measures required for protection of the areas,
the assistance to be provided by the Department of Forestry towards accomplishing such measures and
the obligations of the owner, occupier or traditional authority to maintain and protect the forest
resources of the area.”
Part VII – Forest Protection – contains further measures to control the activities which may be
undertaken within a Forest Reserve or a Protected Forest Area:
“43.-(1) Any person who conveys into, or possesses or uses within any forest reserve or protected
forest area any weapon, trap, explosive, poison or hunting animal shall be guilty of an offence. …”
“44. Unless under licence, no person shall deposit litter or noxious waste in forest reserves, protected
forest areas and village forest areas.”
Section 46 in Part VIII – Utilization of Forest Produce in Forest Reserves and Customary Land –
specifies other activities which are not expressly forbidden but may only be carried out within a
Forest Reserve or Protected Forest Area after obtaining a licence from the Director of Forestry. These
include:
• harvesting any forest produce (this requirement extends also to customary land and to public
land which is not a forest reserve);
• cultivating crops and clearing or digging land;
• grazing livestock;
• prospecting for or extracting minerals, and
• squatting, residing or erecting buildings, livestock enclosures or other structures;

Questions: (3) Section 43 effectively bans hunting in FRs or PFAs. Game animals come under the
definition of “forest produce” and managed hunting could be a legitimate use of such
areas. Would hunting be permitted under section 46 (managed harvesting) as the law
now stands?
The Director is not obliged to issue licenses for the activities listed above. The comments made on
page 6: 9 under heading 6.2.1 – Management of indigenous forest on customary land –apply equally
here.
6.3.5 Woodlots and plantation forestry

Although the encouragement of afforestatation – the active planting of indigenous or exotic tree
species – is a fundamental objective of the NFP (NFP section 2.2.3 “… fostering the growing of trees
by all sections of the communities …”) it is not specifically expressed in either the purposes of the Act
(section 3) or the duties of the Director of Forestry (section 5). However, Part VI of the Act –
Afforestation – deals with this subject in detail.
All types of afforestation project – from village woodlots on customary land to privately-owned
industrial plantations – may be controlled and protected by the conclusion of a Forest Plantation
Agreement between the grower and the Director of Forestry. Sections 35 and 36 are self-explanatory:
“35. The purpose of this Part [Part VI of the FA] is to provide for the promotion of tree growing in forest
reserves, public land, customary land and private land by the Government, non-governmental
organizations and the community.”
Note: “the community” is taken here to include the private sector as well as village communities.
“36. Notwithstanding anything to the contrary contained in this Act, the Minister may authorize the
Director of Forestry to enter into a forest plantation agreement with any non-governmental organization
or community who may wish to plant trees in forest reserves, public land, customary land and private
land, and such agreement shall-
(a) provide for the obligation to grow and manage tree species as specified in the agreement and
in accordance with the plantation management plan which shall be approved by the Director of
Forestry;
(b) convey the right to harvest the forest plantation in accordance with the terms of the
agreement;
(c) provide for advice and assistance from the Department of Forestry in growing and managing
the plantations;
(d) specify obligations of each of the parties to the agreement.”
Part VI contains one provision, section 37, which guarantees a right of ownership of planted trees in a
manner to section 34’s assertion of the ownership rights over trees which are actively protected:
“37. Any person who plants any tree species on any land which that person is entitled to use for that
purpose shall acquire and retain the right to harvest the resulting produce and dispose of it freely.”
Section 37 is easily understood in the context of customary land, but appears to run into conflict with
sections 83 and 85 when we try to apply it to private land (see section 6.3.3 on page 6: 11) Indeed
section 85, which refers to “forest produce” and therefore includes both indigenous and exotic trees,
would appear to make all surplus wood production from leasehold land the property of the nearest
village community, whether planted or not.
The afforestation of customary land is also provided for in Part V. Under section 31, subsection (3), a
Forest Management Agreement (concluded between the Director of Forestry and a VNRMC) may
provide for:
“(c) allocation of land [within a Village Forest Area] to individuals or families for afforestation and
revocation of such allocation if applicable provisions of the agreement are not adhered to by
the occupier of the land so allocated;”
Similarly, under section 32, the Minister may make rules to:

“(c) encourage District Councils, non-governmental organizations and the private sector to
contribute towards the provision of forestry extension services, as well as the establishment
and management of plantations in accordance with guidelines provided by the Department of
Forestry;
(d) provide for the establishment and maintenance of nurseries to provide seedlings for tree
planting programmes;
(e) authorize the payment of grants or bonuses out of public funds for the encouragement of
forestry; …”
In summary:
(1) Any individual living on customary land may plant trees on his own plot and harvest and
dispose of them as he wishes. He does not need to enter into a Plantation Management
Agreement to do this, and he may, if resources allow, receive technical advice and material
assistance from the Department of Forestry.
(2) Communities may establish woodlots or plantation areas on unallocated village land in the
absence of any formal agreement with the Forestry Department. But in this case the
management of the woodlot would be subject to customary law, and ownership rights might
be difficult to enforce through the Courts.
(3) VNRMCs or NGOs may establish woodlots or plantation areas within a VFA. If this is
carried out within the framework of a Forest Management Agreement the disposal of planted
produce may be governed by by-laws that are legally enforceable.
(4) Alternatively, a VNRMC or NGO may establish a woodlot or plantation area on customary
land which is not a VFA, or in a Forest Reserve or Protected Forest Area, by entering into a
Plantation Management Agreement with the Department of Forestry. Such an agreement
would again be legally enforceable.
(5) Any individual or company wishing to establish a plantation on their own private land may do
so freely, and do not need to enter into a Plantation Management Agreement with the
Department of Forestry.
(6) In any of the cases above, whether within or outside of a formal agreement with the Forestry
Department, those who plant trees may receive technical or material assistance from the
Department of Forestry if financial resources permit.
6.3.6 Cross-cutting Issues
• The powers of Forestry Officers and VNRMCs

Sections 6 to 9 and 13 of the FA give extensive powers of law enforcement to Forestry Officers.
These include the right to enter, search or inspect, without warrant, any land or building; to stop and
search motor vehicles or persons and their property; to erect road barriers, to seize and detain forest
produce which they reasonably believe to have been unlawfully obtained, and to arrest persons
suspected of breaking the law. Under section 84, Forestry Officers are indemnified against damages to
any person occasioned by the performance in good faith of their duties under the Act.
Village Natural Resources Management Committees are also empowered under subsection 9 (3) to
seize and detain any forest produce which they suspect to have been removed from a VFA in
contravention of its management rules.
The rights of the public are protected in several ways. The seizure of property in accordance with the
Act must be accompanied by the issue of a seizure certificate, and seized property must be safely
stored in the custody of a Forestry Officer or the VNRMC until such time as a Court has tried the case
or a decision not to prosecute has been made. In the latter case, or in the case of an acquittal by the
Court, the property will be returned to its owner. Produce seized from a person who is found guilty of
an offence, or unclaimed or perishable forest produce, will be disposed of by the VNRMC according
to its rules. After an appropriate ruling by the Court, produce seized by Forestry Officers or the Police

which is not clearly associated with a specific VFA, or is believed to have been removed from public
land, may be disposed of by sale, and the money realized paid into a Forestry Development and
Management Fund established under section 55 (see below).
The public has the right to appeal in the event that the Director of Forestry refuses to issue a licence
for any activity which requires it, and to appeal against the revocation or suspension of a licence
which has already been issued. Such appeals are in the first instance directed to the Minister, but may
be referred to the High Court for a judicial review of the Minister’s decision.
• Forest Protection
Part VII of the FA – Forest Protection – provides specifically for the protection of forests agains fire,
pests and diseases. Sections 39 to 41 deal with the threat of fire. They specify the limited conditions
under which a fire can be lit in a Forest Reserve, Protected Forest Area of Village Forest Area, and
empower any Forestry Officer to co-opt any person in averting the threat of fire to such forest areas.
There is no general prohibition on the lighting of fires in forest or woodland on customary land,
although it should be noted that section 64 of the National Parks and Wildlife Act of 1992 makes it an
offence to light any fire on customary land for the purpose of hunting.
Section 42 gives a range of powers to the Director of Forestry for the control of pests and diseases.
These include the power to order the spraying or clearance of part or the whole of a plantation; to
control the movement of timber or other forest produce under a permit scheme; to issue technical
orders; to suspend the planting of trees susceptible to pests or diseases; to take special measures to
deal with vermin in Forest Reserves, and to provide for effective phytosanitation in accordance with
the Plant Protection Act, including the control of imported tree seed and other forest produce.
• The Forestry Management Board

Part III of the FA, sections 15 to 20, establishes a Forestry Management Board and sets out its basic
procedures and administration. The Board comprises the following ex-officio members or their
designated representatives:
• The Secretary for Natural Resources;
• The Secretary for Agriculture;
• The Secretary for Lands;
• The Secretary for Local Government;
• The Secretary for Energy and Mining;
• The Secretary for Works and Supplies;
• The Secretary for Environmental Affairs;
• The General Manager of the National Herbarium, and
• The General Manager of the Electricity Supply Commission of Malawi.
The following ex-officio members do not have the option of representation:
• The Director of Forestry;
• The Director of National Parks and Wildlife, and
• The Director of Fisheries.
In addition, the Minister will appoint the following members:
• One member representing the University of Malawi;
• Between three and five members representing the general public, and
• A representative of the Timber Association of Malawi.
The Board is required to meet at least twice each year, and at any time on the written request of any
three members. One third of the membership will constitute a quorum. The functions of the Board are
explained in section 17:

“17. The functions of the Board shall be to advise the Minister on all matters relating to tree and forest
management in Malawi, including in particular but not limited to –
(a) advising on the declaration and revocation of areas which for the purpose of protecting forest
species, biotic communities, sites of special interest or aesthetic values, the Board considers
should be declared forest reserves or protected forest areas;
(b) advising on the import, export and re-export of tree species specimen into and out of Malawi;
(c) initiating, overseeing and approving environmental impact assessments in forest reserves,
protected forest areas and fragile sites.”
• The Forestry Development and Management Fund

The Forestry Development and Management Fund is established under part IX of the FA; sections 55
to 62. In many ways it parallels the Environmental Fund created under Part X of the EMA: it is to be
applied at the discretion of the Minister; it is to be maintained in accordance with the Finance and
Audit Act, and it may be financed from funds appropriated by Parliament, donations by individuals,
corporate bodies or donor organizations, or from the sale of forest produce seized by the Government.
The objectives of the fund are set out in sections 58 and 59:
“58. The objects for which the Fund is established shall be the conservation, augmentation and
management of forest resources and forest lands in Malawi.
59. Without derogation from the generality of section 57 [sic], the Fund may be applied to-
(a) the inculcation of the twin concepts of multiple purpose management and sustainability in
forestry into local communities;
(b) the provision of an enabling environment for the participation of the local communities in
forest management and conservation;
(c) maintenance of equipment and records;
(d) the cost of any scheme which the Minister considers to be in the interest of the management
of forest reserves;
(e) meeting any expenses arising from the establishment and maintenance of the fund; and
(f) any purpose which the Minister considers to be in the interest of the objects of the fund.”
6.4 THE ROLES OF FOREST OFFICERS AT DISTRICT LEVEL

The functions of Forestry Officers at district level, within the context of decentralization, may be
inferred by reference to (a) the purposes of the Forestry Act, 1997, and the duties of the Director of
Forestry, as set out in the Act, and (b) the split of responsibilities between the centre and the districts
as defined in the National Decentralization Policy and discussed in more detail in the 1996 Jeynes
report11. The following table, Table 6.2, presents an analysis of functions based on these documents
and following discussion with the parties concerned:
[This section, and Table 6.2, have not yet been discussed and are strictly DRAFT]
Table 6.2: Division of institutional functions within the forestry sector
Function Responsibilities of Responsibilities of District Responsibilities of other
(notes) Departmental Headquarters (1) (Assembly) Forestry institutions
Officers
Development of Lead responsibility Contributor Industry representatives,
policy and legislation communities, individuals,
NGOs and other lead
agencies to contribute.
Conducting and Establishment of data standards Lead responsibility; Private sector plantation
maintaining and quality control; collation, dissemination of forest managers and processors
inventories of forest analysis and dissemination of resource information to the to maintain records and
11

resources inventory data. public. submit planting and

logging data
Preparation of Lead responsibility Contributor Industry representatives,
national forestry communities, individuals,
plans NGOs and other lead
agencies to contribute.
Forestry research Lead responsibility Secondary role in supervising Secondary. Communities,
field trials. private sector may be
involved in on-site trials.
Forestry extension, Preparation and dissemination of Lead responsibility, with NGOs and community
including extension materials; quality particular emphasis on the organizations may conduct
participatory forestry control. development of co- extension.
and agro-forestry management.
Conclusion of forest Party to the agreement; technical Liaison role; interface VNRMCs party to the
management assistance in developing between HQ and VNRMCs agreement
agreements management plans
Enforcement of the Monitoring; training; liaison with Lead responsibility in areas VNRMCs to be primary
FA and forestry the courts; guidance to District not covered by a management enforcement agents in
management Assemblies. agreement. Otherwise VFAs covered by a
agreements (2) secondary or back-up role. management agreement
Forest protection Lead responsibility for Lead responsibility for fire VNRMCs active in fire
phytosanitation prevention prevention.
Management of Lead responsibility initially, Secondary responsibility, i.e. VNRMCs, NGOs or
Forest Reserves and although this may be day-to-day management under private sector may be
Protected Forest progressively devolved at a later the direction of the Director party to management
Areas date of Forestry agreements within
protected areas.
Management of Lead responsibility initially, long- None Increasing private sector
government-owned term privatisation participation
plantations
Licensing of Licensing of the import and Lead responsibility for VNRMCs may licence
activities under the export of forest products, customary land not covered activities within a VFA
FA activities within FRs, by a management agreement. covered by a management
Otherwise a monitoring role. agreement
Training for forestry Sole responsibility None None
staff
Coordination of Sole responsibility None None
forestry development
in SADC
Notes to Table 6.2:

(1) “Forestry Headquarters” is taken here to mean all centralised functions, including those
such as research and training which are not physically carried out at the headquarters in
Lilongwe.
(2) The split of responsibilities in law enforcement is an issue which needs discussion. In section
11.2 of the National Decentralisation policy it is stated that:
“Line ministries will retain responsibility over … policy formulation, policy enforcement, inspectorate, …”
Law enforcement is a function which has historically been managed at field rather than
headquarters level, although the Director has always maintained reasonably close
supervision this activity and there exists a senior post at headquarters to coordinate the
enforcement effort. There would appear to be two options under decentralisation: to
devolve law enforcement to the districts, entirely, or to maintain enforcement units within
the districts which would report directly to Forestry Headquarters. The same comment is
made with respect to the fisheries sector, in section 7.4.

7. FISHERIES
Principal statute: The Fisheries Conservation and Management Act 1997
Subsidiary Fisheries Conservation and Management Regulations (draft) January, 2000
legislation:
Fisheries Conservation and Management (Local Community
1998
Participation) Rules, 1998 (draft)
Policy document: National Fisheries and Aqua-culture Policy (draft) October, 1999
Other A Guide to the Fisheries Conservation and Management Act, April, 1998
publications: 1997. Fisheries Department Bulletin No. 36
7.1 PREAMBLE
Malawi’s fishery resources support a substantial fishing industry which provides direct and indirect
employment to more than 200,000 people and makes an important contribution to the nation’s
nutrition. Yet these resources are thought to be capable of sustaining a level of biological productivity
substantially exceeding current harvesting levels. The reasons for the sector’s disappointing
performance are diverse and widely misunderstood. The popular perception of the fishery sector is
that it is oversubscribed, and that the stagnation of annual yields at around 70,000 tonnes despite a
sharp increase in the numbers of fishermen and fishing craft is, in itself, evidence of over-fishing and
declining fish stocks. Yet direct assessments of the fish stocks of Lake Malawi (by means of research
trawling or acoustic surveys) reveal an overall increase in biomass since the early 1970s.
These apparently conflicting views are reconciled by the observation that the level of technology
applied to the fisheries has fallen visibly over the past two decades. During the early 1990s
government withdrew from or scaled down its provision of services to the fishing industry (ice and
fishing gear supply, boatbuilding, etc.) Although this was intended to encourage the development of
private sector support enterprises the results have been mixed, and an acute shortage of stable fishing
craft is now contributing to overfishing on the inshore shallows of Lake Malawi, leaving resources
further offshore generally under-exploited.
Although not directly related to the sustainability of production, there is also a biodiversity issue
associated with overfishing. Heavy fishing pressure on complex multi-species fisheries alters the
species composition of fish stocks (usually by selectively removing the larger species), and there is a
real likelihood that species are being lost in inshore areas subjected to intensive fishing. A further
threat to both sustainable production and biodiversity is the siltation of rivers and some previously
rocky lakeshore areas as a result of soil erosion and increased runoff. A number of commercially
valuable and endemic species are in decline as a result of the siltation of spawning grounds in the
major rivers.
Of all the natural resources sectors the fisheries sector is probably the most advanced in the
establishment of working co-management initiatives. An experiment in fisheries co-management
initiated in 1993 on Lake Malombe produced such encouraging (and widely publicised) results that
several similar ventures have arisen spontaneously in other areas, on the initiative of fishing
communities.
Because of the mobile nature of fishery resources and fact that they are therefore shared between
many communities, they are not amenable to micro-scale management in the way that, for instance,
forests are. However diligently one village may control the activities of its fishermen, their rewards
are largely dependent on the actions of neighbouring villages or even distant communities who fish
the same stock. For this reason, fisheries are usually managed by a central body - the state. It is no
accident that co-management started in Lake Malombe. The fisheries of Lake Malombe are relatively

distinct from those of adjoining waters, they were in a state of serious decline, and the area was
sufficiently restricted to make a dialogue between all of its fishing communities feasible. Fishermen
were so concerned by the loss of their livelihood that they were very willing to work with government
officials to develop a solution which was both technically sound and economically workable. The
strength of the experiment was that fishermen learned the basics of fishery science and they came to
believe that their own actions could alter a bad situation for the better. Most of the more recent co-
management initiatives have had similar characteristics. The extension of participatory fisheries
management to Lake Malawi, where neither the incentives for co-management nor the obvious
opportunity for stock management exist to the same degree, will present a more serious challenge.
7.2 THE NATIONAL FISHERIES AND AQUA-CULTURE POLICY (1999) (DRAFT)

The draft National Fisheries and Aqua-culture Policy (NFAP) is a product of an extended process of
consultation with the fishing industry, at all levels, relevant government agencies and other
stakeholders. The policy statement leads with a commitment to address the issue of poverty, which
implies an emphasis on maximising employment and therefore, where feasible, favouring the artisanal
rather than the industrial end of the technology spectrum. At the same time it is recognised that both
are necessary to the efficient exploitation of fisheries resources.
“In pursuit of the above, the Department of Fisheries’ aim is to improve the efficiency of all aspects of the national fishing
industry, production and supply of existing fisheries products, as well as the development of new products to satisfy local
demand and potential export markets.
The general objectives aim at monitoring and controlling fishing activities to enhance the quality of life for fishing
communities by increasing harvests within safe sustainable yields and to promote aqua-culture as a source of income and
to supplement fish supply from natural waters.
The new fisheries policy focuses public and political awareness on the stakes associated with the judicious development
and management of the sector, on ecological understanding of the resources and the economic forces behind their
exploitation. It promotes the exploitation of stocks in deeper waters, which currently are not in danger of being over-
fished, and takes into consideration its possible income earning and employment potential for the small-scale fisheries and
incorporates the socio-cultural and socio-economic conditions prevailing in the sector by using participatory approaches.
This will allow the different interest groups, be they industrial or artisanal, fisheries or aqua-culture, to interact with the
legislative and executive government authorities more efficiently in the management of resources. …”
The main content of the policy is presented as a series of sub-sectoral statements comprising goals,
objectives and strategies – these are summarised briefly below.
7.2.1 Extension
Policy goal:
“To support local communities and the private sector in the development of capture fisheries and aqua-culture”
A principal objective of fisheries extension in the contemporary context is to mobilise fishing
communities to participate in fisheries management, a process that requires sensitisation, institution
building and some training in fisheries management issues. A parallel objective is the promotion of
small scale fish farming in rural communities. Linked to both of these is the important role of the
extension service in linking fisheries-dependent communities to fisheries research, both by
encouraging them to help define research priorities and by disseminating research findings as they
become available.
7.2.2 Research
Policy goal:
“To provide the information necessary for sustainable exploitation, management, conservation of biodiversity and
investment in the fisheries sector through appropriate biological, technological, sociological and environmental research
programmes”
Five complementary objectives for capture fisheries research are identified:

• To promote the implementation of demand-driven, service oriented research focusing on

problems identified with the stakeholders in the fishing industry.
• To provide reliable information on the status of exploited fish stocks, economic and
environmental parameters including noxious weeds in all water bodies.
• To provide information about under-exploited resources to the fishing sector.
• To establish an information system to quantify the impact of pollution, etc. on the fisheries
resources.
• To provide socio-economic information about fishing communities.
7.2.3 Participatory Fisheries Management

Policy goal:
“To establish and maintain the co-management of fisheries resources between the Department of Fisheries and key
stakeholders (e.g. fishing communities, traditional leaders) in order to achieve sustainable exploitation of aquatic resources
management for the artisanal fisheries”
The principal objectives here are to engage the fishing communities in the management of fish
resources, including institution building, the identification of fishing area boundaries and the joint
development of management plans; to provide all the necessary legal and procedural mechanisms to
make participatory management a realistic possibility, and to develop and maintain the necessary
capacity within the Department of Fisheries to sustain the co-management approach.
7.2.4 Fish Farming

Policy goal:
“To increase and sustain fish production from smallholder and large fish farming operations in order to improve fish supply
in Malawi”
Three simple and interlinked objectives are listed: to solve problems related to fish farming and small
water body management through research, to develop appropriate recommendations and to conduct
fish farming extension among farmers. Innovative strategic themes include the development of
protocols for the management and conservation of genetic diversity in farmed fish, with special
reference to endangered endemic species, the assessment of potential for stock enhancement in small
water bodies, e.g. dams, and establishing closer links with the agricultural extension service.
7.2.5 Human Resource Development

Policy goal:
“To develop capacity, knowledge and skills by providing appropriate training programmes for the Department of Fisheries
and user communities in Malawi and in the SADC region”
Objectives include the development of courses in fisheries, co-management and aqua-culture for user
groups, the promotion of national, regional and international collaboration in training and research
and the strengthening of departmental capacity through pre-service and in-service training.
7.2.6 Enforcement
Policy goal:
“To maintain effective fisheries inspections in areas not under participatory fisheries management and also to support
local fisheries management authorities in the enforcement of fisheries management measures in order to control the
exploitation and to ensure the sustainable utilisation of fish resources”
The objectives here make a useful distinction between the Department’s role in the co-management
context, which includes work with fishing communities in the development of regulations and by-

laws and providing a back-up enforcement service, and the more traditional policing role in areas not
subject to co-management agreements.
7.2.7 Riverine And Floodplain Fisheries

Policy goal:
“To promote sustainable utlilisation of fish resources in the riverine and adjacent floodplains and wetlands in recognition
of the commitment of Malawi to maintain biodiversity and the need for cooperation and coordination with other
institutions”
The policy goal and objectives take into full account the complex ecology of riverine and floodplain
fisheries, and fully incorporate the promotion of a co-management approach with riparian
communities.
7.2.8 Fish Marketing

Policy goal:
“To promote production, processing distribution and marketing of good quality and safe fish products of Malawi for local
and export markets”
Two principal goals are elaborated here: the promotion of cost-effective post-harvest technologies
(already extensively researched and available as off-the-shelf packages) to improve the quality of fish
products, and the introduction of certifiable quality standards.
7.2.9 Private Sector Investment

Policy goal:
“To provide guidelines and an enabling environment for private sector participation in the development of the fishing
industry”
The principal objective is to promote investment in the fishing industry and fish farming by making
available to investors accurate and current information on the sector. Interestingly, it should be noted
that joint ventures with foreign companies is to be encouraged as a means of introducing both capital
and technical expertise into the industry. A secondary objective is to improve fish marketing, mainly
through the dissemination of market information.
7.3 THE FISHERIES CONSERVATION AND MANAGEMENT ACT (1997)
7.3.1 Introduction and approach

The Fisheries Conservation and Management Act (FCMA) was enacted in 1997 to give legal backing
to a policy that had not yet been committed to paper, but was already under active implementation, at
least on a pilot scale, on the ground. Nevertheless, the Act gives a clear indication in itself of
government’s policy for the fishery sector, and the following pages will describe in practical terms
what this means for the various sectors of the fishing industry. The most important feature of the new
Act, one which distinguishes it from previous fisheries legislation, is that it makes specific provision
for a shared or co-management regime through the conclusion of a legally binding agreement between
the government and a recognized fishermen’s body. All fishing areas that are not subject to a co-
management agreement will continue to be managed by the Fisheries Department, in the way they
have been in the past.
The FCMA does not go into detail about how co-management is expected to work, and many other
parts of the legislation are also deliberately general in nature. The details of implementation are to be
found in the subsidiary legislation – the various Rules and Regulations – but at the date of writing the
new subsidiary legislation is available only in draft. It has not yet been published in the Gazette and is
not yet therefore in force. Nevertheless the draft regulations do give a helpful insight into the expected

future legal framework, and they are used here, with caution, to interpret various parts of the Act. As
in other parts of this manual, extracts from draft legislation are reprinted in Comic Sabs MS Italic Font
Size 9, while extracts from laws in force are reprinted in Tahoma Italic Font Size 9 Text
The following discussion does not follow the format of the useful “Guide to the Fisheries
Conservation and Management Act”, which works its way through the Act and explains each part in
turn. Instead, this manual selects a series of topics and explores the way each is dealt with in the
legislation. It does not cover all of the legislation in detail, and does not deal at all with the
arrangements for foreign fishing vessels or for international cooperation in fisheries. The following
subject areas are covered:
• The purpose and scope of the Fisheries Conservation and Management Act
• Licensing and registration: categories of fishermen and fishing craft
• Control of entry into the fishery
• The management of fisheries by the Fisheries Department
• The management of fisheries under co-management agreements
• Aqua-culture
• Cross-cutting issues: the powers of fishery officers; the Fisheries Advisory Board; the
Fisheries Fund
7.3.2 The purpose and scope of the Fisheries Conservation and Management Act
The purpose of the FCMA is best defined in its full title:
“An Act to make provision for the regulation, conservation and management of the fisheries of Malawi
and for matters incidental thereto and connected therewith”
The Act is principally concerned with the regulation of commercial fishing and aqua-culture within
Malawi’s fishing waters, according to the following definitions taken from section 2:
“fish” means any vertebrate fish or any aquatic crustacean, mollusc or other shellfish or other
coldblooded aquatic animal, whether alive or dead, and their young, fry, eggs or spawn and shells and
parts thereof but does not include any reptile; …”
““fishing” means-
(a) the catching or taking of fish;
(b) any other activity which can reasonably be expected to result in the catching or taking of fish;
or
(c) any operation on water in support of or in preparation for any activity described in paragraphs
(a) and (b); …”
““commercial fishing” means taking fish for sale; …”
““fishing waters” means-
(a) all waters within the land borders of Malawi capable of supporting fish; and
(b) those parts of Lake Malawi over which Malawi exercises sovereignty; …”
Notice that the former distinction between “commercial” and “traditional” fishing has now been
replaced by a more meaningful definition of “commercial fishing” which includes all fishing for
profit, whether pursued from a stern trawler or a dugout canoe.
Although the FCMA deals directly only with commercial fishing and aqua-culture, the Minister is
empowered under section 61 to make regulations which would extend controls to other fisheries
activities:
“61.-(1) The Minister may, on the recommendation of the Board, make regulations for the better
carrying into effect of the purposes of this Act.

Without prejudice to the generality of subsection (1), the regulations may provide for-
(e) the prescribing of fish for which a licence to fish shall be required by persons other than
commercial fishermen; …
(g) the regulation of recreational and subsistence fishing including restrictions on the amount of
fish that may be caught; …
(j) the different categories of commercial, amateur, recreational or other fishing licences; …
(l) the regulation of the landing of fish, …;
(m) the licensing of fish processing establishments;
(n) the regulation of the export and import of fish and fish products;
(o) the control of quality standards and grading of fish sold, exported or imported …”
Thus the Minister may exercise control over sport and subsistence fishing, and also the landing and
processing of fish and all aspects of its distribution and marketing on both domestic and international
markets.
The FCMA also makes provision for international cooperation in fisheries, that is, for Malawi’s entry
into bilateral fishery agreements with neighbouring states to cater for access to Malawi’s fishing
waters and fish resources and/or joint management planning for trans-boundary fish stocks.
The authority of the Act over fishery matters appears almost total within Malawi’s boundaries, but it
is over-ridden by both the National Parks and Wildlife Act, 1992, in respect of fish within National
Parks and Wildlife Reserves, and the Forestry Act, 1997, in respect of fish within Forest Reserves and
Protected Forest Areas. Under those statutes fish fall within the description of wildlife and forest
produce, respectively, and are to be managed as such within the protected areas.
7.3.3 Licensing and registration: categories of fishermen and fishing craft

Two fundamental means of control over the fishing industry are exercised through the licensing of
fishing activities and the registration of fishing vessels. Both of these functions are discharged by the
Director of Fisheries, although there may be circumstances in which authority for both licensing and
registration are devolved to community-based institutions (see section 7.3.6, below). No-one may
carry out commercial fishing unless he has first obtained a licence permitting him to do so, or from a
vessel which has not been registered by the Director. Registration is dealt with first in the Act, under
Part IV – Registration of Local Registrable Fishing Vessels:
“10.-(1) Every owner of a local registrable fishing vessel who intends to use the vessel for fishing shall
apply to the Director for registration in the prescribed manner.
(2) A vessel shall not be registered under this section unless –
(a) it has been registered, if so required, under the Inland Waters Shipping Act 1995, and
otherwise complies with the requirements of that Act;
(b) the vessel carries such identification markings as may be prescribed;
(c) the vessel carries such equipment and complies with such other requirements as shall be
prescribed;
(d) the owner of the vessel has supplied such information and complied with such other
requirements as may be prescribed. …”
The term “vessel” is defined in section 2 so as to include all kinds of watercraft which might possibly
be used for fishing – including dugout canoes – but the term “registrable vessel” is defined only as “a
vessel prescribed as being subject to registration under this Act”. The draft FCM Regulations give a more
useful definition in section 9:
“9. A local vessel that is used for commercial fishing or is intended to be used for such fishing
shall be a registrable vessel.”
Thus, if the draft regulations are adopted, registration will be a requirement for all fishing vessels
except those used solely for recreational or subsistence fishing. Note that “local” here means

Malawian, as opposed to “foreign”. The requirements under section 10 (2) refer to the need for all
commercial fishing boats to be inspected and registered by the marine surveyors of the Marine
Transport Department (a statutory requirement already), the need for vessels to be clearly marked for
identification purposes and the need for vessels to carry basic safety equipment. Registration will
usually be for one year (subsection 10 (4)), although the period may be shorter.
All commercial fishing requires the issue of an appropriate licence by the Director, as detailed in Part
VI of the FMCA – Fishing Licences, Conditions and Other Controls:
“14.-(1) No person shall engage in commercial fishing in the fishing waters except under the authority
of a licence. …”
“15.-(1) Subject to subsection (2), the grant of fishing licence shall be in the discretion of the Director
and the licence may authorize fishing generally or may confer limited authority by reference in particular
to –
(a) the area in which fishing is authorized;
(b) the period, times or particular voyages during which fishing is authorized;
(c) the quantities, description and size of fish which may be taken; or
(d) the method of fishing.
(2) Every fishing licence –
(a) shall specify the fishing gear that is permitted to be used for fishing by or on behalf of the
licencee;
(b) shall not be transferable, except as may be prescribed;
(c) may authorize fishing either unconditionally or subject to such conditions as may appear to the
Director to be necessary or expedient for the regulation of fishing, the conservation or
management of fisheries in the fishing waters or for the economic benefit of Malawi and,
without prejudice to the foregoing, may contain conditions as to –
(i) the landing of fish caught under the authority of the licence;
(ii) the use to which fish may be put;
(iii) the marking of fishing vessels used by licencee;
(iv) the marking of fishing gear;
(v) the records of fishing operations that shall be kept on board fishing vessels;
(vi) the navigation equipment and charts to be carried on board fishing vessels; and
(vii) the place or places where the licencee may carry out transhipment of fish, …”
Together, the registration of fishing vessels and the licensing of commercial fishing offer potentially
powerful controls over the nature of fishing undertaken. Provision is made in section 2 of the FCMA
(Interpretation) to subdivide commercial fishermen into “small scale” and “large scale”. Although
within the Act this concept is not developed further than to ensure representation on the Fisheries
Advisory Board from both small and large scale sectors of the industry, the draft FCM Regulations
envisage a differential licensing regime based on the engine power of the fishing craft used. Under the
definitions proposed “small scale commercial” corresponds roughly with the old “traditional” or
artisanal category, while “large scale commercial” corresponds with the old “commercial” category.
In summary, the draft regulations provide for the following classes of fishing licence:
• a large scale commercial fishing licence (FCMR 18 (4)): “A large scale commercial fishing licence
shall be required by a commercial fisherman who intends to use a fishing vessel powered by an engine
or engines with a total capacity of not less than 20 horsepower and a person to whom such a licence is
granted shall be a large scale fisherman for the purposes of the Act.”
• a small scale commercial fishing licence (FCMR 18 (5)): “A small scale commercial fishing licence
shall be required by a commercial fisherman who intends to use a fishing vessel powered by an engine
or engines with a total capacity of less than 20 horsepower and a person to whom such a licence is
granted shall be a small scale fisherman for the purposes of the Act.”

• a live fish collection commercial fishing licence (FCMR 18 (6)): “A person who intends to fish
for live fish for sale or for the purposes of aqua-culture require a live fish collection commercial
fishing licence.”
• a sport fishing licence (FCMR 21):

“21.-(1) A person who fishes for sport or subsistence shall require a licence to fish if that person
fishes –
(a) for a species of fish declared under these Regulations, or by the Director by notice published
in the Gazette, to be a controlled species of fish; or
(b) using fishing gear declared by the Director by notice published in the Gazette to be a
controlled fishing gear.
(0) An applicant for a sport fishing licence need not be a resident of Malawi but he shall specify
any vessel not registered or based in Malawi intended for use under the authority of the licence. …
(4) No sport or subsistence fishing licence shall be granted or renewed unless the Director is
satisfied that the applicant is not intending to engage in commercial fishing under the licence. …”
“22.-(1) Rainbow trout is declared to be a controlled species of fish for the purposes of these
Regulations.”
• a subsistence fishing licence (FCMR 21): Subsection 21 (1) above applies; also -
“(3) A person fishes for subsistence who fishes in order to provide, without payment therefore,
food for himself and persons dependent on him including members of his community.
(5) No subsistence fishing licence shall be granted or renewed unless the Director is satisfied
that the applicant is ordinarily resident in Malawi …”
If the Regulations are adopted in their present form the only sport or subsistence fishermen who
would need licences would be those intending to fish for rainbow trout1, since no other fish species
and no fishing gears have yet been declared “controlled”.
7.3.4 Control Of Entry Into The Fishery

Part IV of the Act (Registration) appears to give the Director no option but to register vessels which
comply with all the necessary preconditions and for which an appropriate application for registration
has been made. Under subsection 10 (3) he may subsequently revoke such registration, but only if the
vessel falls into delinquency with respect to the preconditions in subsection 10 (2), and even then
registration must be restored if the delinquency is later shown to have been corrected. But the Director
has much more discretion with respect to licensing – complete discretion, in fact – as seen in
subsection 15 (1) “the grant of fishing licence shall be in the discretion of the Director”. Further, under
section 57 the Director is empowered to suspend or cancel either licences or registration, not only in
the event of a misdemeanour on the part of the licencee but also if it is in the best interests of the
fishery to do so:
“57.-(1) The Director may suspend or cancel any registration, licence or permit made or granted under
this Act or amend any of the terms or conditions thereof if - …
(d) he considers that such cancellation or suspension is required for the regulation of fishing or
aqua-culture, the conservation or management of fisheries or for the economic benefit of
Malawi; …”
In theory, therefore, the Director may control the size of any fishery by regulating the number of
licences issued and the amount of fishing gear authorized under any individual licence. In practice this
has always been the way the mechanised or “large scale commercial” fisheries have been regulated.
Within the trawl fisheries, for instance, the level of fishing effort needed to achieve maximum
1
Rainbow trout is an exotic (N. American) species introduced for sport fishing in the early part of the 20th
century. Managed trout fisheries exist on the Nyika, Zomba and Mulanje plateaux.

sustainable yield in specific fishing areas has been reasonably well understood for the last 25 years,
and licence allocations have been based on this scientific approach.
Within the “traditional” or “small scale commercial” fisheries, effort management is very much more
difficult. Government attempts to restrict entry into small scale fishing would be both difficult, if not
impossible, to enforce, as well as very sensitive politically. It is expected that responsibility for the
containment of fishing effort, in fisheries where such a measure would be seen as useful or necessary,
will be seen as an essential part of a package of measures and authorities to be devolved to the fishing
communities themselves under co-management agreements. This is discussed in section 7.3.5, below.
7.3.5 The Management Of Fisheries By The Fisheries Department

We have seen above how the Fisheries Department is empowered to regulate fishing pressure and the
nature of the fisheries through the registration of fishing vessels and the licensing of most kinds of
fishing activity. The Act also provides for two other types of control. The first is a blanket prohibition
on certain methods of catching or killing fish, which are seen as having no place whatsoever in
legitimate fishing. Such methods include the use of explosives, poisons or electrofishing2, and are
detailed in section 42:
“42.-(1) No person shall –
(a) use any explosive, device capable of producing an electric current, poison or other noxious
substance for the purpose of killing, stunning, disabling or catching fish or in any way rendering such
fish more easily caught; …”
The other, much broader, range of controls is provided through the Minister’s power to make
regulations under section 61:
“61.-(1) The Minister may, on the recommendation of the Board, make regulations for the better
carrying into effect of the purposes of this Act.
(2) Without prejudice to the generality of subsection (1), the regulations may provide for – …
(b) the conservation, management and protection of fish resources, including the establishment of
closed areas and close seasons, the prescription of the limite on the amounts, sizes and weights of
fish caught, retained or traded, the prescription of mesh sizes of nets, the control of use of types of
fishing gear and the attachment of identification marks thereto, the control and prohibition of
methods of fishing and the protection of fish stocks and their habitats from the actual or potential
effects of pollution or siltation or from the actual or potential effects of measures taken to eliminate
pollution or siltation;
(c) measures to protect fish breeding grounds from damage caused by specific fishing methods or the
clearing or collection of aquatic weeds;
(e) the prescribing of fish for which a licence to fish shall be required by persons other than
commercial fishermen;
(f) the licensing of any kind of fishing including any activity related to fishing;
(g) the regulation of recreational and subsistence fishing including restrictions on the amount of fish
that may be caught;
(h) a quota or total allowable catch for any fish or in respect of any method of fishing in any part of the
fishing waters and authorizing the Director to allocate any such quota or total allowable catch to
such commercial fishermen as he may specify by notice published in the Gazette; …”
Subsection 61 (2) contains reference to all of the major means of control over fisheries exercised
anywhere in the world, with the exception of access limitation, discussed above. In practice all have
been used in Malawi – some with more success than others – with the exception of quotas or total
allowable catches. There are technical problems with the use of quotas in multi-species fisheries that
would make such a system unlikely to find favour in Malawi, but nevertheless it ha been provided for
should the need arise.
2
Exceptions to these prohibitions are contained in Part VII – Special Arrangements – when the Minister may
grant a permit for the catching of fish for scientific purposes or for the emergency supply of food for human
beings.

The draft FCM Regulations contain the following provisions:

• the specification of fishing areas within which fishing gear restrictions, fishing method
restrictions, closed seasons or licence conditions may apply;
• maximum headline length, minimum cod end mesh size and other design restrictions for trawl
nets;
• restrictions on the distance from shore, depth of water fished and the hours during which
fishing may be carried out, for trawl and ring nets;
• maximum headline length and minimum mesh size for beach seine nets (by area);
• prohibitions on the use of certain fishing gears in specific fishing areas;
• maximum depth and minimum mesh size for gill nets (by area);
• special restrictions on the use of nkacha nets and usipa lift net rigs;
• minimum takeable sizes for chambo, other chambo-like fishes and mpasa;
• closed seasons for specific fisheries, and
• special rules for sport fisheries for rainbow trout.
There is no inherent weakness in the legal framework for fisheries management as exercised by the
Fisheries Department, but historically the level of compliance with fisheries legislation has been
disappointing. This has provided a major impetus towards the devolution of fisheries management as
described in the following section.
7.3.6 The Management Of Fisheries Under Co-Management Agreements

To date the management of the fishery sector by central government has not been particularly
successful, and previous generations of fishery regulations have been largely ignored by the industry.
It is believed that three factors account for this state of affairs:
(2) Although the regulations have been designed on scientific principles to protect the fish stocks
(and hence ensure the long-term sustainability of the fishing industry), those principles are not
well understood by the majority of fishermen, who see the regulations as unnecessarily
restrictive.
(3) Conversely, the Fisheries Department have not taken the fishermen’s viewpoint into account
when designing the regulations, and may have made compliance unnecessarily difficult.
(4) Both extension and enforcement capacity within the Fisheries Department have been weak.
The solution to this problem is seen as a new approach – co-management or shared management –
which is based on the following elements:
• The formation of fishermen’s representative bodies, initially at the village level but also at
higher levels – most probably district and national.
• A process of extended negotiation between the Fisheries Department and fishermen’s
representatives to determine mutually agreed management regimes for specific areas or
fisheries. The area represented by an individual village would be too small for its own
management formula to have any meaning, and shared management regimes will probably be
applied to discrete water bodies (e.g. lakes Malombe, Chilwa, Chiuta) or, in Lake Malawi, to
districts or equivalent-sized portions of the lake. The negotiation process implies a mutual
learning exercise, in which fishermen learn the scientific concepts of fishery management,
and whatever is currently known about the stocks they fish, and government benefits from the
fishermen’s own understanding of the same stocks and of the likely impacts of different
management options.

• The development of agreed management measures into rules which would be legally
enforceable. Fishermen’s institutions will themselves be empowered to enforce the rules, but
if necessary will be able to call on the Fisheries Department for enforcement back-up and
technical advice and on the courts to deal with cases which warrant trial.
The principles of the co-management approach are embodied in Part III of the FCMA – Local
Community Participation. Part III is brief, and is reproduced here in full:
“7. The purpose of this Part is to provide for local community participation in conservation and
management of fisheries in Malawi; and
8.-(1) For proper management of fisheries, the Director may enter into a fisheries management
agreement with a fisheries management authority providing for –
(a) a management plan; and
(b) assistance to be provided by the Department of Fisheries.
(2) Subject to performance of unfulfilled obligation under a fisheries management agreement to the
right of third party, a fisheries management agreement may be terminated by either party.
(1) In the event of any dispute arising under a fisheries management agreement, the matter shall be
referred to the Minister;
Provided that any party aggrieved with the decision of the Minister may apply to the High Court for
review of the decision.
9.-(1) The Minister may, on the recommendation of the Board, make rules for the better carrying into
effect of the purposes of this Part.
Without prejudice to the generality of subsection (1), the rules may –
(a) provide for the conservation and management of fisheries;
(b) facilitate the establishment of fisheries management authorities for the benefit of the local
communities;
(c) encourage District Councils, non-governmental organizations, the private sector and other
relevant institutions to contribute towards provision of fisheries extension services, as well as
establishment and management of aqua-culture, in accordance with guidelines provided by the
Director of Fisheries;
(d) provide for declaration of endangered species and their management;
(e) authorize payments of grants or bonus out of public funds for encouragement of fisheries;
(f) prescribe a mechanism for sharing costs and benefits between the Department of Fisheries and
fisheries management authorities in regard to confiscated fisheries produce; and
(g) provide for procedure to be followed with regard to registration of local registrable fishing
vessels and licensing of persons to be engaged in commercial fishing.”
Note that under section 2, “fisheries management authority” means:
“any local community organization established for the purposes of promoting local participation in the
conservation and management of fisheries in Malawi …”
The Act establishes the principle of co-management without going into detail: it simply creates the
opportunity for the government and a community fisheries organization to enter into a binding
agreement setting out the management measures to be applied within a particular area. The brevity of
this Part of the FCMA was deliberate, since this new management style is experimental and the details
of implementation may need progressive revision as experience is gained. The draft Fisheries
Conservation and Management (Local Community Participation) Rules, 1998 (the draft LCP Rules),
serve to illustrate in more detail how co-management might work in practice, although they are now
somewhat outdated and may themselves be revised before final approval. In summary, the draft LCP
Rules envisage the following structure:
(1) The primary unit in the community fisheries infrastructure will be a “Beach Village
Committee” (BVC). BVCs will be composed of fishermen and others associated with the
industry who operate from a specific fishing beach. Sometimes more than one beach is used

by a single village, or occasionally more than one village is linked to a single beach: it is
assumed that common sense will determine the appropriate membership and jurisdiction of
individual BVCs. A BVC will have a constitution and a formal structure with office bearers,
and the latter will be appointed Honorary Fisheries Officers under section 4 of the Act.
(2) BVCs may form Fishermen’s Associations. Associations will be required to have a legal
personality, and will normally represent the BVCs of a fishing district3. A Fishermen’s
Association will have a constitution, and its office bearers will be Honorary Fisheries
Officers. It will be the responsibility of the Fishermen’s Associations to convey to the
Director of Fisheries and to the Fisheries Advisory Board its recommendations on fisheries
conservation and management.
(3) Fisheries management plans, and the rules through which they will be implemented, will be
agreed between the Fisheries Department and the Fishermen’s Associations at the level of the
fisheries district (or other equivalent area represented by the Association). As mentioned
above, it is not feasible to negotiate separate management plans with individual BVCs.
(4) The BVCs will be responsible for implementing the management plans. In practical terms this
will mean:
• registering local registrable fishing vessels to be used by small scale commercial and
subsistence fishermen within the BVC’s area;
• licensing small scale commercial and subsistence fishermen who fish within the BVC’s area;
• maintaining records of registration and licensing;
• enforcing fisheries regulations made under the local fisheries management agreement, and
enforcing licence conditions. Included here would be the power to seize catches believed to
have been taken illegally or vessels or fishing gears believed to have been used in
contravention of the management regulations.
• suspending or cancelling registration or licences in the event of misdemeanour or if required
in the interests of fisheries management.
It is not envisaged in the draft LCP Rules that BVCs will licence large scale commercial fishermen.
There is an issue here, because the small and large scale sectors do compete with each other to a
certain extent, but there is scope to resolve potential conflicts at the Association level and within
fisheries district management plans.
The advantage to fishermen of forming representative institutions and negotiating a local fisheries
management agreement is that the rules under which their fisheries will subsequently be regulated are
more likely to reflect their local needs than do the national fishery regulations which they will replace.
In the absence of a fisheries management agreement, the industry will continue to be controlled by the
state as described in section 7.3.5 above.
7.3.7 Aqua-culture
World-wide, aqua-culture is playing an increasingly important role in the production of fish and
shellfish for human consumption, and it is very likely that in the future Malawi’s aqua-culture
industry will be much more prominent than it is today. While this is a trend which the government
wishes to encourage, aqua-culture can have negative impacts on other sectors and the wider
environment as a consumer of surface water, through pollution, and by acting as a reservoir of
diseases which can infect wild as well as farmed fish. It is necessary therefore to establish powers to
3
Section 59 introduces the term “fishing district” with regard to fisheries administration and the collection and
expenditure of “district fees”. Fishing district will be designated by the Director, probably partly on an
administrative and partly on a bio-geographical basis: they will not necessarily have the same meaning as
administrative districts or local government areas.

regulate the industry so as to maximise its contribution to the economy while minimising possible
harmful effects. Part VIII of the FCMA – Aqua-culture – provides for such regulation.
“20.-(1) No person shall establish or operate an aqua-culture establishment to which this section applies
–
(a) otherwise than under the authority of, and in accordance with the conditions of, an aqua-
culture permit granted by the Director under section 21; and
(b) unless he has been granted rights to use water for that purpose under the Water Resources
Act. …”
“(3) This section shall apply to such aqua-culture establishments as may be prescribed by the Minister
by notice published in the Gazette.”
“21.-(1) An application for an aqua-culture permit shall be made to the Director in the prescribed form
and shall be accompanied by the prescribed fees.
(2) An aqua-culture permit shall –
(a) not be transferred without the prior written consent of the Director;
(b) confer on the permit holder exclusive rights to harvest the products of the aqua-culture
establishment within the area specified in the permit;
(c) be subject to such conditions as appear to the Director to be necessary or expedient for the
regulation of aqua-culture, the management of fisheries or for the economic benefit of Malawi
and, without prejudice to the generality of the foregoing, may contain conditions relating to –
(i) the siting, design and materials used in the construction of the aqua-culture
establishment;
(ii) sanitary conditions of fish and fish products;
(iii) measures for the prevention of the escape of fish farmed for aqua-culture;
(iv) measures for the prevention of fish diseases;
(v) the marketing of fish and fish products of the aqua-culture establishment; and
(vi) measures to be taken to minimize the escape of waste products and the pollution of
land and water.”
The provisions of Part VIII do not apply to all fish farms (see subsection 20 (3) above). The intentions
here are made clear in the draft FCM Regulations:
“38.-(1) Any person who operates an aqua-culture establishment and –
(a) the establishment occupies an area of not less than four hectares; or
(b) fish bred, reared or kept at the establishment are intended for export, shall require an
aqua-culture permit. …”
Clearly it is intended that subsistence and small scale commercial fish farms, including all typical
village-based operations, should continue to function free of restriction, while larger and more highly
capitalized ventures should be regulated in the national interest. The remainder of the draft aqua-
culture regulations are concerned principally with environmental and fish hygiene controls, including,
where necessary, provision for the destruction of diseased stock and the compensation of the owner
by an insurer or by the government.
It should be noted that the list of projects for which an environmental impact assessment may be
required, published in accordance with section 24 (1) of the Environment Management Act, 1996,
includes specific reference to aqua-culture. Aqua-culture projects for which an EIA is mandatory
include:
“A1.7 Construction of fish-farming or ornamental pond(s) where the capacity is greater than 100 cubic
metres or where there is any direct discharge from a fish pond to a receiving water body.
A1.8 Any proposal to introduce fish species in an area where they do not presently exist.”
(Guidelines for Environmental Impact Assessment, December 1997)

100 cubic metres is a rather small fish pond (a square pond of, say, 8 metre sides and 1.5 metres
deep), and many smallholder fish ponds which remain untouched by the fisheries legislation will be
caught in the EMA’s net.
7.3.8 Cross-cutting issues: the powers of fishery officers; the Fisheries Advisory
Board; the Fisheries Fund
The powers of Fisheries Officers and BVCs

The FCMA contains detailed provisions for its enforcement by public officers and Honorary Fisheries
Officers.
“3.-(6) This Act shall be enforced by fisheries protection officers, acting subject to the direction of the
Director and, for that purpose, fisheries protection officers shall have the powers set out in sections 30,
31 and 32.
(7) For purposes of this Act, the following persons shall be fisheries protection officers –
(a) fisheries officers in the Department of Fisheries;
(b) members of the Malawi Police Force;
(c) forest officers;
(d) wildlife officers;
(e) environmental officers;
(f) persons in command or in charge of any vessel, aircraft or hovercraft of the armed forces of
Malawi or of the Government of Malawi;
(g) such other public officers as the Minister may designate by notice published in the Gazette;
and
(h) any persons authorized by or acting on behalf of the persons specified in paragraphs a, b, c, d,
e, f and g.
(8) The Director of Public Prosecutions may in writing nominate, by rank, any officer or class of officers
of the Department of Fisheries to undertake and prosecute criminal proceedings in respect of an offence
committed under this Act.
4.-(1) The Director may, by notice published in the Gazette, appoint suitable persons to be honorary
fisheries officers to assist in the carrying into effect of the provisions of this Act.
(2) The appointment of an honorary fisheries officer shall be -
(a) made for a period of three years but shall be renewable; and
(b) subject to such conditions as shall be prescribed or as the Director shall otherwise impose in
the instrument of appointment.
(3) Honorary fisheries officers shall exercise such of the powers of fisheries protection officers as shall
be prescribed in the instrument of appointment.”
It has been noted above that under the draft LCP rules it is intended that office bearers of BVCs and
Fishermen’s Associations will be Honorary Fisheries Officers.
The powers accorded to fisheries protection officers under sections 30 to 32 are very wide-ranging
and cover any foreseeable situation. They include the right to:
• require the master of a vessel to stop and haul its fishing gear, and to board and search the
vessel and order its return to port;
• enter, search or inspect, without warrant, any land or building, including the search of records
and data stored on computers;
• stop and search motor vehicles or persons and their property;
• erect temporary road barriers,

• seize and detain fish which they reasonably believe to have been unlawfully caught and
fishing gear, equipment, vessels and vehicles used in their capture or otherwise used in
contravention of the Act, and
• arrest persons suspected of breaking the law.
Fisheries protection officers are not empowered to search dwelling houses without first obtaining a
warrant issued by a magistrate. Although they are permitted to use reasonable force in exercising their
powers, fisheries protection officers are not authorized under the FCMA to carry firearms.
An innovative approach embodied in section 50 of the FCMA is that of the imposition of
“Administrative Penalties”. When a minor offence has been detected by a fisheries protection officer,
and where the imposition of a penalty is deemed appropriate, the Director of Fisheries may serve a
notice on the offender detailing the nature of the offence and the offender’s rights under the Act, and
offering the choice of:
(a) electing to have the case tried by a Court in the normal way, or
(b) admitting the offence and paying a fine determined by the Director.
The purpose of this measure is to reduce the effort and court time taken to try minor cases, and it is a
system which has worked well in many countries for minor traffic offences.
Under section 37, the Director of Fisheries, public officers, fisheries protection officers and Honorary
Fisheries Officers are indemnified against civil or criminal actions arising from their performance in
good faith of their duties under the Act.
Neither Beach Village Committees nor Fishermen’s Associations are given specific powers within the
FCMA, but as already shown the draft LCP Rules envisage their office bearers’ appointment as
Honorary Fisheries Officers. Enforcement powers ascribed to BVCs in the draft LCP Rules include
the power to:
• enforce fishing regulations;
• enforce conditions specified in licences;
• seize fishing vessels and fishing gears which are reasonably believed to have been used in
contravention of the Act, provided that seized items must be surrendered to a fisheries
protection officer within 48 hours.
The rights of the public are protected in several ways. The seizure of property in accordance with the
Act must be accompanied by the issue of a written receipt, and seized vessels may be released by the
Court before criminal proceedings are concluded if the owner first deposits a bond or security in the
favour of the government. Sections 38, 39 and 40 contain detailed provisions for the treatment of
seized items and the rights of persons arrested or whose property has been seized.
Under section 58 the public has the right to appeal in the event that the Director of Fisheries suspends,
cancels or varies any registration certificate, licence or permit. Such appeals are in the first instance
directed to the Minister, but may be referred to the High Court for a judicial review of the Minister’s
decision. The FCMA does not refer to a right of appeal in the event that the Director refuses to issue a
fishing licence in accordance with his powers under section 15, although it is presumed that the same
right exists.
• The Fisheries Advisory Board

A Fisheries Advisory Board is established in sections 5 and 6 of the FCMA, within Part II
(Administration), where its basic procedures and administration are laid down. The membership of the
Board will be as follows:
• A Chairman, appointed by the Minister;
• A Vice-Chairman, elected by and from among members of the Board;
The following ex-officio members who do not have the option of representation:

• The Principal Secretary responsible for natural resources;

• The Director of Fisheries;
Ex-officio members who may designate representatives:
• The Principal Secretary responsible for community services
• The Principal Secretary responsible for agriculture;
• The Principal Secretary responsible for environmental affairs;
• The Principal Secretary responsible for irrigation;
In addition, the Minister will appoint the following members:
• Three members nominated by and from among small scale commercial fishermen;
• Three members nominated by and from among fisheries protection officers;
• One member nominated by and from among large scale commercial fishermen;
• One member nominated by and from among fish traders;
• Three members from the general public, one of whom to be a person knowledgeable in
consumer affairs.
Half of this rather large membership will constitute a quorum, although subsection 5 (3) provides for
the Board’s appointment of a technical sub-committee that may in practice prove easier to mobilise.
Unusually, the Act lays down no minimum frequency for Board meetings. The functions of the Board
are explained in section 6:
“6. The Board shall advise the Minister generally on the development, administration, conservation and
management of the fisheries of Malawi and shall in particular -
(a) consider and advise on fisheries management plans and reviews of the plans prepared by the
Director prior to the submission of such plans or reviewed plans to the Minister;
(b) consider and advise on proposals for the introduction of measures prohibiting or restricting the
catches of species of fish;
(c) consider and advise on proposals for the enactment of legislation that may affect the fishing
industry
(d) consider and advise on proposals for agreements or arrangements to be entered into pursuant
to section 52 and proposals for the entry into or accession to conventions that may relate,
wholly or in part, to fishing matters;
(e) consider matters referred to the Board and advise the Government thereon;
(f) submit such proposals to the Government as it shall consider appropriate;
(g) have such other functions and duties as the Minister may, from time to time, prescribe.”
The Fisheries Fund

The Fisheries Fund is established under part IX of the FCMA; sections 22 to 29. Like the Forest
Development and Management Fund it resembles the Environmental Fund created under Part X of the
EMA: it is to be applied at the discretion of the Minister; it is to be maintained in accordance with the
Finance and Audit Act, and it may be financed from funds appropriated by Parliament, from voluntary
contributions, from the sale of fishing gear, equipment, vessels or catches whose forfeiture has been
ordered by the Court, or from moneys derived from the imposition of administrative penalties. The
objectives of the fund are set out in sections 25 and 26:
“25. The objects for which the Fund is established shall be the conservation, development, promotion,
management and administration of fisheries and fish habitats and to start, operate and expand
projects relating to management or conservation of fisheries or fish habitats.
26.-(1) Without derogation from the generality of section 25, the Fund may be applied to-
(a) research and training which is calculated to promote proper management of fisheries;
(b) the acquisition of land, equipment, materials and other assets and the construction of buildings
in order to promote the objects of the Fund;

(c) the cost of any scheme which the Minister considers to be in the interest of the management
of fisheries;
(d) meeting any expenses arising from the establishment and maintenance of the fund; and
(e) any purpose which the Minister considers to be in the interest of the objects of the Fund. …”
7.4 THE ROLES OF FISHERIES OFFICERS AT DISTRICT LEVEL

The functions of Fisheries Officers at district level, within the context of decentralization, may be
inferred by reference to (a) the duties of the Director of Fisheries, as set out in the FCMA, and (b) the
split of responsibilities between the centre and the districts as defined in the National Decentralization
Policy and discussed in more detail in the 1996 Jeynes report4. The following table, Table 7.1,
presents an analysis of functions based on these documents and following discussion with the parties
concerned:
A final comment concerns the matching of “fisheries districts” with administrative districts. Lake
Chilwa, for instance, has its own Fishermen’s Association and will probably in future enter into a
fisheries management agreement with the Director of Fisheries. Lake Chilwa would comprise a
functionally meaningful “fisheries district” and would be best served by management as a single unit.
Yet Lake Chilwa is included within three administrative districts (Machinga, Zomba and Phalombe).
There may be other sensible fisheries districts which also extend into more than one administrative
district. In this event the power of District Assemblies to share certain functions could be invoked (see
section 3.1.5, page 3: 3), with costs and revenues shared pro rata.
[This section, and Table 7.1, have not yet been discussed and are strictly DRAFT]
Table 7.1: Division of institutional functions within the fisheries sector

Function Responsibilities of Departmental Responsibilities of District Responsibilities of
(notes) Headquarters (1) Fisheries Officers other institutions
Development of Lead responsibility Contributor Industry representatives,
policy and legislation individuals, NGOs and
other lead agencies to
contribute.
Collection and System design; data standards and Data collection and primary Large scale commercial
processing of fishery quality control; collation and processing; dissemination of fishermen obliged to
statistics analysis of processed data; fisheries information to the maintain records and
dissemination of fisheries industry. submit catch returns
information.
Preparation of fishery Lead responsibility Probable liaison role: Fishermen’s
management plans interface between HQ and Associations to present
Fishermen’s Association industry views
Targeted fisheries Lead responsibility Secondary role in support of Secondary. Fishermen
and aqua-culture field programmes. may be involved in on-
research site trials.
Fisheries and aqua- Preparation and dissemination of Lead responsibility, with NGOs and fishermen’s
culture extension extension materials; quality control. particular emphasis on the institutions may conduct
development of co- extension.
management.
Training for fisheries Sole responsibility None None
staff and the industry
Enforcement of the Monitoring; training; liaison with Lead responsibility in areas BVCs to be primary
FCMA and fishery the courts; provision of guidance to not covered by a management enforcement agents in
management plans the District Assemblies. agreement. Otherwise areas/fisheries covered
(2) secondary or back-up role. by a management
agreement
4

Registration of local Lead responsibility for registering Lead responsibility for BVCs primary
fishing vessels (3) large scale commercial fishing registering small scale registration agency for
vessels. commercial fishing vessels in small scale commercial
areas not covered by a fishing vessels in areas
management agreement. covered by a
Otherwise a monitoring role. management agreement
Licensing of fishing Lead responsibility for licensing Lead responsibility for BVCs primary licensing
and related activities: large scale commercial fishermen. licensing small scale agency for small scale
Malawi residents (3) Lead responsibility for licensing commercial fishermen in commercial fishermen
aqua-culture establishments. areas not covered by a in areas covered by a
management agreement. management agreement
Otherwise a monitoring role.
Licensing of fishing: Sole responsibility None None
foreign vessels
International Lead responsibility Probable liaison role: Fishermen’s
cooperation interface between HQ and Associations to present
Fishermen’s Association. industry views on
proposed access
agreements.
Notes to Table 7.1:

(1) “Fisheries Headquarters” is taken here to mean all centralised functions, including those
such as research and training which are not physically carried out at the headquarters in
Lilongwe.
(2) The split of responsibilities in law enforcement is an issue which needs serious discussion. In
section 11.2 of the National Decentralisation policy it is stated that:
“Line ministries will retain responsibility over … policy formulation, policy enforcement, inspectorate, …”
Law enforcement is a function which has historically been a function of the District
Fisheries Officer, although the Director has always maintained reasonably close
supervision this activity and there exists a senior post at headquarters to coordinate the
enforcement effort. There would appear to be two options under decentralisation: to
devolve law enforcement to the districts, entirely, or to maintain enforcement units within
the districts which would report directly to Fisheries Headquarters.
(3) The suggested split of registration and licensing functions is based on the following rationale:
Large scale commercial vessels are relatively mobile and may be licensed to fish within
several districts. It may also be necessary to vary licence conditions from time to time so as to
divert fishing effort from one area to another, as a management measure. These decisions are
made on the basis of fishery and fish stock data from the entire fishery, and cannot therefore
be made at district level. It is more appropriate therefore to retain management control of the
large scale fisheries at headquarters.
Small scale commercial fisheries registration and licensing would be more appropriately
devolved to district level, and further, once fisheries management agreements are in place, to
community (i.e. BVC and Fishermen’s Association) level.

8. NATIONAL PARKS AND WILDLIFE

Sectoral Framework Documents Key
dates
Principal The National Parks and Wildlife Act 1992
statute: The National Parks and Wildlife (Amendment) Act (draft) 1999
Subsidiary The National Parks and Wildlife (Hunting Weapons) Regulations, G.N. 83 1994
legislation: The National Parks and Wildlife (Control of Trophies and Trade in Trophies) 1994
Regulations, G.N. 86
The National Parks and Wildlife (Protected Areas) Regulations, G.N. 87 1994
The National Parks and Wildlife (Protected Species)(Declaration) Order, G.N. 89 1994
Policy The National Wildlife Policy 2000
document:
Other Collaborative Wildlife Management in Malawi 1998
publications:
8.1 PREAMBLE
The wildlife sector in Malawi may be viewed from two standpoints: that of the conservation of
biodiversity, and that of the sustainable utilisation of a natural resource. Inside protected areas wildlife
is considered primarily as a biodiversity resource, although sustainable utilisation may be one
effective means of achieving conservation. Outside the protected areas the balance is reversed, and it
is usual to consider customary wildlife areas (and game ranches) primarily in terms of their
sustainable productive capacity. From either standpoint the wildlife sector is currently under intense
pressure.
Within the protected areas (National Parks, Wildlife and Forest Reserves - 21% of Malawi’s land
area) the government simply does not have the resources to manage wildlife effectively. A number of
wildlife practitioners have tried to calculate the costs of providing adequate protection to wildlife
areas. While this may be a simplistic approach the fact remains that the entire recurrent budget of the
Department of National Parks and Wildlife (DNPW) is only a fraction of the lowest estimate for
protecting the wildlife in Malawi’s National Parks and Wildlife Reserves. The protection of wildlife
in Forest Reserves is even less satisfactory. High and unsustainable levels of illegal hunting in
Malawi’s protected areas have led to a dramatic reduction in wildlife resources, confirming that
current funding levels are insufficient to provide protection.
DNPW’s wildlife policy emphasises initiatives to integrate boundary communities into the
management of National Parks and Wildlife Reserves. It also seeks to reduce antagonism from such
communities by promoting benefit-sharing and permitting controlled access to minor resources.
Hunting, though, is an occupation of individuals rather than of communities, and the elimination of
hunting in protected areas through community peer pressure may be difficult to achieve. Further,
hunting may be conducted by individuals from outside the boundary communities. It is unrealistic,
therefore, to expect the introduction of a co-management regime to reduce requirements for the active
protection of wildlife in the immediate future.
In order to address this issue three policy options are available to the government:
(1) Increase the level of revenue funding directed to wildlife protection. While government
allocations to the wildlife sector are not expected to increase much in the short term, tourism
revenues may well do, and the implementation of a revenue retention scheme and the
establishment of wildlife trust funds may serve to reduce the current reliance on central
government financing.
(2) Offload as many of the protected area functions as possible, focusing Government’s role on
research, management and the provision of a para-military wildlife protection service. This

may be achieved through privatisation or through the development of strong partnerships

between the Government, NGOs, CBOs and the private sector in the fields of infrastructure
maintenance or incentive bonus or collaborative schemes for anti-poaching operations.
(3) Reduce the area protected in order to concentrate financial and manpower resources on only
the most important wildlife areas; i.e. de-gazette those areas which have the least conservation
value. This is still regarded as an extreme measure and is not under current consideration.
Outside the protected areas the existing situation is also unsatisfactory. The 1992 National Parks and
Wildlife Act, which regulates hunting methods, specifies huntable species and imposes a licensing
scheme, annual quotas and bag limits, gives a misleading impression that a management system is in
place, where in practice there is none. The 1992 Act serves only to regulate the activities of those
sport hunters who choose to comply with its provisions. The great majority of hunting activities are
conducted by subsistence or small-scale commercial hunters whose activities are, with few
exceptions, uncontrolled. The result has been a rapid depletion of wildlife resources in the customary
areas – much faster than the rate at which wildlife habitat has been lost.
Government is likely never to have the resources to manage wildlife in the customary areas, but the
existing legislation provides no mechanism for the Director of National Parks and Wildlife to delegate
his authority for wildlife management. The draft National Parks and Wildlife (Amendments) Bill
provides that mechanism and improves on a number of unclear provisions in the current legislation.
8.2 THE NATIONAL WILDLIFE POLICY (2000)
8.2.1 Overview And General Principles

The National Wildlife Policy (NWP) was approved in May 2000 following almost three years of
internal debate, widespread consultations with other stakeholders – with a particularly strong input
from traditional leadership – and national workshops to develop some degree of consensus on the
general principles of wildlife policy, the special conditions attending the collaborative management of
wildlife, and on the future institutional basis for the wildlife sector in Malawi.
“The goal of the national wildlife policy is to ensure proper conservation and management of the wildlife resources in order
to provide for sustainable utilisation and equitable access to the resources and fair sharing of the benefits from the
resources for both present and future generations of Malawians. …
In order to achieve the goal, this policy seeks to meet the following objectives:
(i) Ensure the adequate protection of representative ecosystems and their biological diversity through promotion
and adoption of appropriate land management practices that adhere to the principle of sustainable use.
(ii) Enhance public awareness and understanding of the importance of wildlife conservation and management and
its close relationship with other forms of land use.
(iii) Take the necessary legislative steps as well as pertinent enforcement measures to curtail illegal use of wildlife.
(iv) Create an enabling environment for wildlife-based enterprises.
(v) Develop a cost-effective legal, administrative and institutional framework for managing wildlife resources
without compromising the special ecological attributes of the resources.”
The policy lists a number of guiding principles that are taken up throughout the more specific policy
statements which follow them. Two are especially important in defining the legal framework within
which the policy will be implemented – one is a statement on ownership, the other establishes the
principle of collaborative management:
“(i) Ownership of wildlife resources shall rest with the State President on behalf of and for the benefit of the people
of Malawi. However it is recognised that those who legitimately use the land on which the resources occur are
the primary custodians, and utilisation rights should accrue to them. …
(iv) Recognising that government structures in isolation can not adequately conserve and manage the wildlife
resources, government shall create an enabling environment for the local communities, the private sector, Non-

Governmental Organisations and any other party with an interest in wildlife conservation and management to
fully contribute.”
8.2.2 The Management Of Wildlife In Protected Areas

Malawi has five National Parks – Nyika, Kasungu, Lake Malawi, Liwonde and Lengwe – with a
combined area of 698,000 ha, and four Wildlife Reserves – Vwaza, Nkhotakota, Majete and Mwabvi
– with a combined area of 393,000 ha. The primary reasons for having and managing National Parks
and Wildlife Reserves are:
• to preserve selected examples of Malawi’s biotic communities and their physical
environments;
• to protect areas of aesthetic beauty and special interest;
• to preserve populations of rare, endangered and endemic species of wild plants and animals,
and
• to assist in maintaining water supplies through catchment conservation, and thus to benefit
agriculture in adjoining land, and promote fish conservation and fisheries management
downstream.
Secondary reasons for having National Parks and Wildlife Reserves include:
• to provide study facilities;
• to provide facilities for public use and enjoyment;
• to provide wildlife stock to repopulate depleted parts of the country, and
• to allow for sustainable utilisation of the wildlife resources in order to contribute to the local
economy.
Detailed policies and strategies for protected area management include:
• government commitment to involving boundary communities in their planning and
management;
• the implementation of a mechanism for sharing protected area revenues between the Treasury,
the DNPW and the boundary communities, for each protected area;
• the promotion of innovative financing mechanisms;
• encouraging the private sector to obtain management concessions within national parks and
wildlife reserves, and permitting private investment in park infrastructure provided that this
will revert to government ownership after an agreed period.
• The promotion of private sector tourist developments at the periphery of protected areas,
preferably in partnership with boundary communities.
In addition to the protected areas under direct DNPW control, gazetted Forest Reserves cover 857,000
ha and proposed Forest Reserves a further 152,000 ha. These areas constitute a significant proportion
of national wildlife habitat, and some support substantial populations of large mammals and birds.
The DNPW does not have sufficient human resources capacity to contribute directly to wildlife
management in Forest Reserves, but is committed to providing technical advice to the Forestry
Department in this respect. The policy urges consideration of wildlife utilisation (e.g. controlled sport
hunting) as a valid management option, with boundary communities involved in the planning and
implementation of such schemes.
8.2.3 The Management Of Wildlife On Customary And Private Land

The policy for wildlife conservation and management on customary land is to:

“Encourage local communities, where conditions are suitable, to adopt wildlife conservation and management as a viable
land use option.”
Guiding principles are:
“(i) Proper conservation and management of wildlife resources is dependent on a sense of ownership and value for the
resource.
(ii) Management of wildlife resources on customary land shall be the responsibility of the respective communities.”
Central to this policy goal is the concept of Multiple Use Wildlife Areas (MUWAs), areas of
customary land where wildlife conservation is at least one of the land uses and in respect of which a
management plan may be drawn up and implemented. The concept is closely allied to that of
collaborative management (comparable to co-management or shared management), discussed in
sections 8.2.4 and 8.3.8, below.
The policy for wildlife conservation and management on private land is to:
“Encourage land owners to consider wildlife conservation and management as a competitive land use option.”
Guiding principles are:
“(i) Land owners shall be responsible for managing wildlife resources on their land.
(ii) Game ranching and game farming are viable and environmentally friendly methods of generating cash income and
protein. Successful game ranching or game farming can also ensure a reservoir for animal re-introductions to areas
where the resources might be depleted.”
8.2.4 Collaborative Management Of Wildlife

Collaborative management is an approach to wildlife management which takes as its focus an
identified wildlife resource associated with a specific and precisely defined area of land. The
“collaborators” are all those people, institutions or other stakeholders who have an interest in the
resource. The principal is that the partners will manage the resource jointly, in accordance with an
agreed management plan, and to their mutual interest. They will be bound by a legal agreement that
specifies the rights and responsibilities of each, and the way in which benefits derived from the
resource will be shared. The management plan will be based on scientific principles and will aim to
ensure the long-term sustainability of the resource. This concept closely matches that of co-
management in the fisheries sector, except that the number of stakeholders is likely to be greater in
the wildlife sector. As the technical advisor on wildlife, and by definition an interested party in all
wildlife issues, the DNPW will be one of the partners in each case. Collaborative management could
be applied either inside or outside of wildlife protected areas. This subject is also developed in the
draft wildlife legislation, and is discussed in section 8.3.8 below. The DNPW published a short paper
outlining in more detail the principles of collaborative management in 1998.1
8.2.5 Hunting
Hunting is categorised into local sport hunting, professional hunting – a form of low-volume high-
value tourism – and traditional hunting, carried out for subsistence. All are permitted under current
legislation, although the conditions under which traditional hunting is permissible are unclear. The
development of sport hunting within an appropriate management regime is seen as an opportunity to
raise the value of wildlife and therefore assist in its conservation. Hunting – legal and illegal – poses
under current circumstances the greatest threat to wildlife in Malawi, and hunting policy is therefore
of considerable importance. This section of the policy is therefore reproduced in full:
“(a) Purpose:
Promote wildlife-based sport hunting and clarify traditional hunting rights.
(b) Guiding principle:
1
Malawi Government (1998) Collaborative Wildlife Management in Malawi. Department of National Parks
and Wildlife, Lilongwe. This document is often referred to as the “Collaborative Management Guidelines”.

All hunting activities have to follow the principle of sustainable utilisation and have to be in line with socially
accepted norms. In particular, care has to be taken to achieve maximum long-term benefits from hunting as opposed
to possibly high, but unsustainable short-term gains. Furthermore, Government is committed, for ethical reasons, to
ensure high professional standards in all hunting operations, be they modern-style or traditional. Government also
reserves the right to impose hunting restrictions on particular areas and/or species in the interest of conservation.
(c) Strategies:
(i) Amend and/or develop legislation and guidelines for professional, sport, as well as traditional hunting
(including methods to be employed) as required;
(ii) Regularly review the schedule of protected species that may be taken on licence;
(iii) Empower traditional structures to grant permission to hunt on their land;
(iv) Determine hunting quotas on a scientific basis and monitor game populations which are hunted;
(v) Draw up effective and operational control mechanisms;
(vi) Establish guidelines for awarding licences and hunting concessions;
(vii) Introduce and oversee effective training and examination programmes for professional hunters to ensure
the necessary competence and operational standards;
(viii) Ensure that game species are not hunted for less than the market value of their raw products.”
8.2.6 Problem Animal Control

Problem animals include all of those animals that come into economic or physical conflict with man.
They include those that damage crops (vervet monkey, yellow baboon, bushpig, buffalo,
hippopotamus, elephant), predators which take domestic animals and livestock (civet, hyaena, lion)
and those that threaten human life. The DNPW has always had a role in problem animal control, and
the draft wildlife policy proposes to alter that role by devolving responsibility for the control of non-
dangerous animals to the “appropriate authorities for the land on which the conflicts occur”2. A
related strategy is to initiate training in problem animal control and conflict avoidance for village
communities where conflicts are frequent. No compensation is payable by the government for damage
caused by wildlife. Dangerous animal control will remain the responsibility of the DNPW.
8.2.7 Trade In Wildlife And Wildlife Products

Legal trade in wildlife products is encouraged, but controlling such trade provides one means of
controlling unlawful hunting, and the policy proposes an extensive regulatory framework. The policy
goal is stated as:
“Government wishes to develop a coordinated trade and marketing system of wildlife and products that ensures
sustainable benefits.”
The associated guiding principles are as follows:
“(i) All transactions involving wild animals or unprocessed wildlife products, other than meat, shall have proper
authorisation. Furthermore all dealers, traders and manufacturers of wildlife products shall be licensed and
registered. They shall keep records of their transactions in a form satisfactory to the Department of National Parks
and Wildlife and will submit respective returns as may be required.
(ii) The use and disposal of wildlife products and by-products that belong to the state (e.g. live captured animals,
cropped meat, found or confiscated trophies) will be strictly regulated to ensure optimum returns and high standards
of public accountability.
(iii) The Government shall uphold the principles of international conventions on trade in wildlife and wildlife products
particularly the Convention on International Trade in Endangered Species (CITES). However Malawi reserves the right
2
Dangerous animals are defined in the National Parks and Wildlife Act (1992) as including hyaena, lion,
leopard, hippo, elephant, rhinoceros, buffalo and crocodile.

not to support any resolution that infringes on its sovereign right to manage wildlife to the benefit of the resources
and the people sharing the land with them.
(iv) The Government will only consider the export of wildlife taken as sustainable harvest from the wild.”
8.2.8 Miscellaneous Other Policy Statements

The NWP makes policy statements on a range of additional subjects which for the sake of brevity are
not quoted here. They include:
• Conservation of wetlands;
• Public education and extension;
• Cooperation with national and international partners;
• Research, monitoring and adaptive management;
• Introduction and re-introduction of wildlife species and keeping of animals in captivity, and
• Species protection and law enforcement
8.3 THE NATIONAL PARKS AND WILDLIFE ACT (1992), AND PROPOSED
AMENDMENTS
8.3.1 Rationale And Approach

When it was drafted, the 1992 National Parks and Wildlife Act3 (NPWA) was considered a
progressive statute, and certainly a considerable advance on the four Acts it replaced.4 The Act
prescribed the purposes and functions of National Parks and Wildlife Reserves and introduced the
concept of a “wildlife impact assessment”; it made detailed provision for hunting, including
professional hunting, and it established the Wildlife Research and Management Board and the
National Parks and Wildlife Fund. Unfortunately the Act arrived just as the policy shift towards the
devolution of natural resources management was beginning, and it now appears a rather limited
instrument through which to implement the new wildlife policy. Much of the 1992 Act remains
useful, and it was decided therefore to amend it as necessary, rather than replace it entirely. The
process of amending the Act to reflect current policy was carried out more as a technical than a
participatory, process (the policy itself having been developed through stakeholder participation), and
was undertaken by a Parliamentary Draftsman of the Ministry of Justice in consultation with a
technical advisory committee. The resulting draft National Parks and Wildlife (Amendments) Bill was
however presented to and endorsed by a national consensus-building workshop on E/NRM legislation
supported by UNDP and UNEP in November 1998. The Bill is now in its third draft and must be
considered close to being ready for presentation to the Cabinet Legal Affairs Committee.
The approach taken in the following analysis is to select and describe the main components of the
NPWA, and demonstrate how the proposed amendments would bring about the necessary changes
with regard to the policy. Quotations from the current legislation appear in blue italics, and from the
draft amendments in purple italics.
8.3.2 The Purposes Of The Act, The Ownership Of Wildlife And The Protection Of
Wildlife
“An Act to consolidate the law relating to national parks and wildlife management; to establish the
Wildlife Research and Management Board; and to provide for matters incidental to or connected
therewith”
3
The Act came into force in 1994.
4
The Game Act, the Wild Birds Protection Act, the Crocodiles Act and the National Parks Act.

“3.-(1) The purposes of the Act are –

(a) the conservation of selected examples of wildlife communities in Malawi;
(b) the protection of rare, endangered and endemic species of wild plants and animals;
(c) the conservation of wildlife throughout Malawi so that the abundance and diversity of their
species are maintained at optimum levels commensurate with other forms of land use, in order
to support sustainable utilisation of wildlife for the benefit of the people of Malawi;
(d) the control of dangerous vertebrate species;
(e) the control of import, export and re-export of wildlife …;
(f) the implementation of relevant international treaties, … to which Malawi or the Government is
a party. …”
Two further subsections to section 3 establish, as general principles, that:
• any measures taken under the Act are based on the results of scientific investigation,
including the monitoring of species status and habitat conditions, and
• provisions relating to the management of species in wild habitats refer only to species
presently or formerly native to Malawi, and should not be construed as authorizing the
introduction of exotic species into wild habitats.
Section 4 contains 6 subsections dealing with issues of wildlife ownership. Subsection (1) vests the
ownership of every wild animal and wild plant existing in its wild habitat in Malawi in the President,
on behalf of, and for the benefit of, the people of Malawi. The remaining subsections elaborate the
conditions under which such ownership may be transferred to an individual. Three such conditions
apply:
• where a wild plant or animal was lawfully owned by any person prior to the commencement
of the Act;
• where a wild plant or animal which is not a protected species is lawfully taken by any person
(e.g. if a bushpig, which is not a protected species, is lawfully hunted and killed, ownership of
the bushpig will pass automatically to the hunter), and
• where a protected species of wild plant or animal is lawfully taken by any person acting under
the authority of a licence issued under the Act.
The draft NPWA proposes to amend section 4 by deleting the first subsection vesting the ownership
of wildlife in the President. It was considered that the ownership of natural resources is already
adequately covered in the 1995 Constitution, which in section 207 vests all lands and territories of
Malawi (and taken here to include all natural resources) in the Republic.
Section 4 introduces the concept of “protected species”, a term that is defined in Part VI of the NPWA
(sections 42 to 45). The significance of the term “protected species” is more or less confined to
customary and private land, since all wildlife within National Parks and Wildlife Reserves (and, under
section 46 of the Forestry Act, within Forest Reserves also) is protected. Essentially, the Act divides
wildlife outside the protected areas into two categories – those that are protected species and those
that are not. Protected species are those species the exploitation of which is deemed to require some
sort of management, and include most of the large mammals. Species that are not protected include
many of the smaller mammals and other species whose management is considered either unnecessary
or not feasible, and also include animals that were formerly classified as “vermin” under the old Game
Act (bushpig, yellow baboon and vervet monkey). The relevant sections are as follows:
“42. The purpose of this Part is to provide the classification of species of wild plants and animals as
protected species in order that those particular species of plants or animals are accorded
appropriate management priority.
43.-(1) The Minister may, from time to time, on the recommendations of the Board and by order
published in the Gazette, declare any species of wild plant or wild animal specified in such order to
be classified as a protected species under this Act.

(2) Any order made under subsection (1) may apply to an individual species throughout Malawi, or to
all or some species in a specified area, or to a variety of species including sex and age groups. …”
45. Wild plants and animals other than protected species shall not be subject to the restrictions on
hunting or taking under Part VII [Licences to Hunt or Take Wildlife], but shall be subject to all other
provisions of this Act and to the provisions of any other written Law.”
The draft NPW (Amendments) Bill would provide for a higher degree of protection to be applied to
certain species deemed to be at special risk, by adding the new classification of “endangered species”.
This would require a new section to be inserted immediately after section 43 (above) as follows:
“42A.-(1) The Minister may, from time to time, on the recommendation of the Board, cause to be
published in the Gazette a list of all species to be classified as endangered species under this Act.
(2) Any order made under subsection (1) may apply to an individual species throughout Malawi, or
to all or some species in a specified area, or to a variety of species including sex and age groups.”
Protection does not mean that no exploitation is possible, but rather that such exploitation should only
apply to such species, in such places and under such conditions as are consistent with sustainable
utilisation of the resources and the conservation of biodiversity. Thus, a sub-division of “protected
species” is introduced in section 44 by providing for the classification of some species as “game
species”, i.e. those species that may be hunted or taken under license:
“44.-(1) For the purposes of this Act, protected species of animals shall be classified as game species.
(2) The Chief Parks and Wildlife Officer, after consultation with the Board, and not later than the tenth
day of November each year, cause to be published in the Gazette a list of all species that are to be
classified as game species under this Act during the following year, and such list shall take effect
from the first day of January of the following year.
(3) The Chief Parks and Wildlife Officer, after consultation with the Board may, at any time, by notice
published in the Gazette vary the list, in effect at that time, of game species.”
Subsection 44 (1) appears to mean that all protected species are game species, although subsection (2)
suggests that this classification will be more limited. The draft NPW (Amendments) Bill would make
this distinction clearer by recasting subsection 44 (1) as follows:
“44.-(1) For the purposes of this Act, some protected species of animals may be classified as game
species.”
The National Parks and Wildlife (Protected Species)(Declaration) Order, 1994, declares all species of
plant, all mammals, reptiles and birds within a National Park or Wildlife Reserve to be protected
species5. In addition, the Order lists those species of plant, mammal, reptile and bird outside the
wildlife protected areas which are protected species under the Act.
8.3.3 Wildlife Administration And The Powers Of Wildlife Officers

Part II of the NPWA – Administration (sections 5 to 16) – establishes the post of Chief Parks and
Wildlife Officer (CPWO)6, and other officers subordinate to him, with responsibility for the
administration of the NPWA, subject to any general or specific directions of the Minister. The Act
does not refer to the duties of the CPWO in detail, but section 6 makes him generally responsible for
the management of National Parks and wildlife throughout Malawi.
Section 7 empowers the Minister to appoint Honorary Parks and Wildlife Officers (HPWOs). Such
voluntary officers may be appointed for periods up to 3 years (although appointments are renewable),
and their duties and powers will be determined by agreement between the appointees and the CPWO.
While on official duty they will always act under the direction of the CPWO.
5
Oddly, the blanket protection of fish within wildlife protected areas is replaced by a more restricted coverage
including only tiger fish, mbuna, mpasa and kadyakolo.
6
The Chief Parks and Wildlife Officer is now known as the Director of National Parks and Wildlife.

Considerable powers are accorded to officers under sections 8 to 12 of the Act. These include the
power to enter without warrant and search any land, building, motor vehicle, aircraft or boat; the
power to seize any article which appears to have been obtained, used or about to be used in
committing an offence under the Act; the power to place barriers across roads and the power of arrest
without warrant. Persons from whom goods have been seized shall be given written receipts, and
persons arrested on suspicion of having committed an offence under the Act must be brought to the
Police, charged with the offence and taken before a Court as soon as possible.
Subsection 121 (2) in Part XV of the NPWA – Miscellaneous – indemnifies wildlife officers in the
event of damages occasioned in the course of duty:
“121.-(2) The Chief Parks and Wildlife Officer or any other officer shall not be held liable in damages or
otherwise to any person by reason of his exercise or non-exercise in good faith of the powers vested in
him under this Act.”
The NPW (Amendments) Bill would make extensive changes to Part II of the Act. The most
important of these are summarised as follows:
• “Officers” would be defined, and would include, in addition to Parks and Wildlife Officers,
fisheries officers, forest officers, environmental inspectors, customs officers, members of the
Malawi Police and the Malawi Army, Honorary Parks and Wildlife Officers and such other
public officers as the Minister may designate.
• Provision would be made for the compensation of officers (other than Honorary Parks and
Wildlife Officers) who are injured or killed in the line of duty. Such compensation would be
calculated in accordance with the provisions of the Workers Compensation Act.
• The amended Act would give formal recognition to the right of officers to carry and use
firearms, with provision made for the publication of regulations specifying which officers
may carry firearms and under which circumstances they may be used.
• The indemnity provisions under section 121 would be expanded significantly. Of particular
importance is a new subsection that would confer upon any officer immunity from civil or
criminal prosecution in respect of any action carried out in good faith in the line of duty. This
subsection was drafted in response to incidents in which wildlife officers have faced criminal
prosecution following armed combat with poachers in protected areas.
8.3.4 The Wildlife Research and Management Board, and the Wildlife Fund
Part III of the Act – Wildlife Research and Management Board (sections 17 to 22) – establishes a
Board whose principal function is to advis the Minister on wildlife issues:
“19. The function of the Board shall be to advise the Minister on all matters relating to national parks
and wildlife management in Malawi, including in particular but not limited to-
(a) advising on the declaration of areas which, for the purpose of protecting wildlife species, biotic
communities, sites of special interest or aesthetic values, the Board considers should be
declared national parks or wildlife reserves under this Act; and
(b) advising on the import, export and re-export of wildlife specimens into and out of Malawi.”
The Board consist of:
(a) ex-officio members
• the Chief Parks and Wildlife Officer;
• the head of the DNPW Research Unit;
• the head of the Department of Antiquities;
• the Director of Forestry, or his designated representative;
• the Director of Fisheries, or his designated representative;
• the Chief Tourism Officer, or his designated representative;

(b) members appointed by the Minister

• two members from the University of Malawi suitably qualified in wildlife matters;
• one member representing and nominated by the Wildlife Society of Malawi;
• between three and five representatives of the general public.
Members are appointed for a two-year term but are eligible for re-appointment. The Board is required
to meet at least twice each year: a majority of members comprises a quorum and voting is by simple
majority.
The NPW (Amendments) Bill would alter the composition of the Board to include the Principal
Secretary responsible for wildlife, the Commissioner for Local Government, the Director of Land
Resources Conservation, the Director of Environmental Affairs. In addition, two representatives of the
private sector would be added, and the single NGO representative (from the Wildlife Society of
Malawi) increased to two without specifying the NGOs involved. The term of office for Board
members would be increased to three years in order to improve continuity and streamline the Board’s
administration.
Part XII of the Act – National Parks and Wildlife Fund (sections 100 to 107) – establishes a fund
directly comparable to those established under the Environment Management Act, the Forestry Act
and the Fisheries Conservation and Management Act. The fund is vested in the Minister, to be
administered in accordance with his directions subject to the provisions of the Finance and Audit Act.
Sections 103 and 104 prescribe the purposes of the fund as follows:
“103. The objects for which the Fund is established shall be the development, promotion, management
and administration of national parks and wildlife reserves in Malawi.
104. Without derogation from the generality of section 103, the Fund may be applied to-
(a) research and training which is calculated to promote proper management of national parks and
wildlife reserves;
(b) the acquisition of land, equipment, materials and other assets and the construction of buildings
in order to promote the objects of the Fund;
(c) the cost of any scheme which the Minister considers to be in the interest of the management
of national parks and wildlife;
(d) meeting any expenses arising from the establishment and maintenance of the Fund; and
(e) any purpose which the Minister considers to be in the interest of the objects of the Fund.”
Sources of finance are also broadly comparable to those envisaged for other sectoral funds. They
include sums appropriated by Parliament; advances from the Ministry of Finance; voluntary
contributions, donations made by foreign governments or international organizations and monies
raised through the sale of government trophies, confiscated specimens or other articles.
8.3.5 Wildlife Impact Assessments

Part IV of the Act – Wildlife Impact Assessments (sections 23 to 25) – introduces a concept which
closely parallels that of the Environmental Impact Assessment, but with a special emphasis on
wildlife issues. Under section 23 any person who has good reason to believe that any process or
activity undertaken, or intended, by the government, any other organization or any individual might
have an adverse effect on wildlife may request the Minister to institute a Wildlife Impact Assessment
(WIA). Such a request would normally be routed through the Board.
Upon receipt of the Minister’s direction, the Board is itself responsible for carrying out the WIA, in
the course of which it may make use of any powers available to it under the Act and may call on the
assistance of the CPWO. The Board is required to submit a report of its findings to the Minister within
90 days, such report covering
• an assessment of existing or projected impacts on wildlife;
• a statement of the likely involvement of rare, endangered or endemic species;

• a list of alternative actions, or inaction, which might be taken to mitigate the adverse
impacts, and
• recommendations for subsequent government action.
The NPW (Amendments) Bill would harmonize this Part of the Act with the EMA by replacing the
term “Wildlife Impact Assessment” by “Environmental Impact Assessment” and by building into the
assessment process provisions for inviting public comment and holding public hearings, both parts of
the EIA procedure. It should be noted that regulations drawn up under subsection 24 (1) of the EMA
(and published in the EIA guidelines) include the following projects for which an EIA is mandatory:
“A13 Projects in proximity to or which have the potential to affect: …
A.13.2 national parks, game reserves and protected areas
A.13.3 wetlands
A.13.4 water bodies …
A.14 Major policy reforms, for example:
A.14.1 Degazettement of Forest Reserves …
A.14.3 Proposed introduction of exotic species.”
Among the projects for which an EIA may be required are included:
“B.13 Areas protected under legislation
B.13.1 Forest Reserves, Game Reserves
B.13.2 National Parks …
B.14 Areas containing rare or endangered flora and fauna
B.15 Areas containing unique or outstanding scenery”
8.3.6 National Parks and Wildlife Reserves

Part V of the NPWA – National Parks and Wildlife Reserves (sections 26 to 41) contains detailed
provisions related to the establishment, disestablishment and management of protected wildlife areas
known as National Parks and Wildlife Reserves. These two terms are always used together within the
Act, and nowhere is any distinction made between them. In practice, National Parks are relatively
well-developed areas provided with tourist facilities and a road network, whereas Wildlife Reserves
receive protection but are less developed for public enjoyment. The functions and establishment of
National Parks and Wildlife Reserves are described in sections 27 to 29:
“27.- The purposes of national parks and wildlife reserves shall be-
(11) to preserve selected examples of biotic communities of Malawi and their physical environments;
(12) to protect areas of aesthetic beauty and special interest;
(13) to preserve populations of rare, endemic and endangered species of wild plants and animals;
(14) to assist in water catchment conservation;
(15) without prejudice to the purposes listed in paragraphs (a) to (d), and within any limitations imposed by
them, to provide facilities for studying the phenomena therein for the advancement of science and
understanding; and
(16) without prejudice to the purposes listed in paragraphs (a) to (c), and within any limitations imposed by
them, to provide facilities for public use and enjoyment of the resources therein.
28.-(1) The Minister may, by order published in the Gazette, declare any area of land or water within
Malawi to be a national park or to be a wildlife reserve and may, in like manner, alter the boundaries of,
or disestablish, any national park or wildlife reserve so declared, and the Minister shall first require the
matter to be comprehensively studied by or under the auspices of the Board.
(2) The Minister may amend such order, but any order the purpose of which is to alienate or excise
land from a national park or wildlife reserve shall be of no effect unless or until approved by a resolution
of the National Assembly.

(3) Any study made pursuant to the provision of subsection (1) shall investigate the ecological
consequences of the proposed boundary change or disestablishment, and the report of the study shall
be submitted to the Minister together with the advice of the Board within ninety days of the study being
made.
(4) The Minister shall not decide upon any proposal relating to boundary change or disestablishment of
any national park or wildlife reserve until he is in receipt of a report made pursuant to subsection (3).
29. Any area of land proposed for national park of wildlife reserve status and which is not public land
shall first be acquired as public land in accordance with the provisions of the Land Act and the Lands
Acquisition Act.”
The NPW (Amendments) Bill would firstly remove the category “wildlife reserve” as redundant – all
of the existing wildlife reserves would therefore become National Parks. It would also add a new
category of protected area – the “Nature Sanctuary” to give formal legal status to the Lilongwe Nature
Sanctuary, the Michiru Conservation Area and Mzuzu Environmental Education Centre. An
additional purpose would be added to the list in section 27 with these areas in mind:
“(e) to promote education on wildlife in urban areas; …”
Section 30 of the Act provides for the imposition of an interim management regime within areas
proposed as National Parks or Wildlife Reserves, under the control of the CPWO and for a period not
exceeding six months, while the process of declaration is under way.
Sections 32 to 36, 37 and 38 list activities that comprise offences under the Act if carried out in a
national Park or Wildlife Reserve. They include:
• entry into, or residence in, a National Park or Wildlife Reserve without a permit issued by
the CPWO (section 32) – this does not apply to employees of the DNPW or police
officers while on official duty;
• introducing or carrying any weapon, trap, explosive or poison, other than (a) by officers
in the course of their duties; (b) in accordance with section 39, which provides for
resource harvesting, or (c) in accordance with section 40, which provides for otherwise
unlawful acts to be sanctioned by the Minister in the interests of better wildlife
management (section 33);
• depositing litter or waste, other than into a receptacle provided for this purpose (section
34);
• hunting, taking, killing injuring or disturbing any wild animal or plant or any domestic
animal or cultivated plant occurring legally within the National Park or Wildlife Reserve,
other than in accordance with sections 39 or 40 (section 35);
• introducing any plant, whether wild or cultivated (section 37);
• starting or maintaining a fire, other than in accordance with sections 39 or 40 (section 38).
Section 39 of the Act provides specifically for resource harvesting within a National Park or Wildlife
Reserve:
“39. Where it is intended to harvest resource within a national park or wildlife reserve-
(a) the Chief Parks and Wildlife Officer may, subject to the provisions of this Act, issue authority to
any person, in the prescribed form, absolving him from compliance with the provisions of
sections 33 (1) and 35 (a) to the extent specified in the authority; and
(b) the Chief Parks and Wildlife Officer shall be responsible for regulating and controlling
harvesting in the national park or wildlife reserve; and in exercising his responsibility under this
paragraph the Chief Parks and Wildlife Officer shall ensure that the annual harvest does not
exceed sustainable yield level unless it is judged desirable by the Minister to exceed
temporarily such level for the purposes of management.”
Section 40 establishes a mechanism for permitting an action that is otherwise unlawful to be carried
out within a National Park or Wildlife Reserve if the CPWO is satisfied that it is necessary or

desirable in the interests of better wildlife management. The CPWO is required first to apprise the
Board of the circumstances of the proposed action(s). If the Board is in agreement with the proposal it
may, subject to the approval of the Minister, issue written authorization to any officer to proceed with
the action.
Section 41 requires the Minister to publish such regulations as may be necessary for the management
of National Parks and Wildlife Reserves, to include:
• conditions under which people may enter or reside in a National Park or Wildlife Reserve,
or under which vehicles, boats or aircraft may enter, be kept in or travel through such
areas;
• the prohibition or regulation of the lighting of camp or picnic fires;
• entry and service fees;
• the prohibition or control of low flying aircraft, and
• the prohibition or control of commercial enterprises.
8.3.7 Hunting
Hunting, which covers all forms of harvesting or “consumptive utilization” of wildlife, is dealt with
extensively in the Act. Three parts are concerned with hunting – Part VII – Licences to Take or Hunt
Wildlife (sections 46 to 62), Part VIII – Methods of Hunting and Taking; and Responsibilities of
Hunters (sections 63 to 72), and Part IX – Hunting Dangerous Animals, Killing in Error, Wounding
and Molesting Animals (sections 73 to 84). These Parts of the Act are extremely detailed, and it is
therefore proposed here only to outline the general principles for the management and regulation of
hunting.
Section 8.3.2 of this chapter described the classification of certain wild animals and plants as
“protected species” (see page 8: 7). The circumstances under which wild animals may legally be
hunted are limited to:
(a) the hunting under licence of protected species which have been classified as game species,
and
(b) the hunting without licence of species which are not protected species.
In either of these circumstances the hunter is bound by the provisions of Part VIII concerning the
methods of hunting, and in addition the hunting of game species under licence may be bound by
licence conditions which further restrict the methods, time or area of hunting, as well as the number of
animals that may be taken. There is a third, exceptional, circumstance in which protected animals may
legally be hunted:
(c) under sections 74 and 75 of Part IX, any person may kill or attempt to kill any protected
animal in his own self-defence, or in the defence of another person, crop or domestic animal.
Section 48 of the Act lists five types of licence, described individually in sections 50 to 54. Section 49
states that licences are not transferable to any other person. The five classes of licence are as follows:
• a bird licence (section 50) A bird licence may be issued to a citizen or resident of Malawi,
and entitles the licensee to hunt particular types of bird. Current licence conditions include
closed seasons and daily bag limits, and the species named include guinea fowl, francolins
and some species of ducks and geese. The licence is currently annual and national, but does
not permit hunting within protected areas. It is intended for use by hunters holding registered
shotguns.
• a game licence (section 51) A game licence may be issued to a citizen or resident of Malawi,
and entitles the licensee to hunt named species of game animal (currently bushbuck, warthog
and common duiker). Licence conditions include an annual quota or bag limit for each

species. The licence is currently annual and national, but does not permit hunting within
protected areas. It is intended for use by hunters holding registered shotguns or rifles.
• a hunting licence (section 54) A hunting licence may be issued to a citizen, resident or
visitor to Malawi, and entitles the licensee to hunt named species of game animals within the
context of what is often known as “safari hunting”. A hunting licence is only issued in
connection with a professional hunter’s licence: i.e. the licensee is only permitted to hunt
under the guidance and protection of a professional hunter licensed in accordance with section
92 of the NPWA. The game animals specified in a hunting licence may include species that
are not included on the regular resident’s game licence, and a hunting licence may permit
hunting within a National Park or a Wildlife Reserve.
• a visitor’s licence (section 52) A visitor’s licence is, as its name implies, issued only to a
visitor to Malawi in accordance with such conditions as the Minister may prescribe. It is
intended to entitle the holder to hunt without supervision in areas outside National Parks and
Wildlife Reserves, and may permit the hunting of birds or game.
• a special licence (section 53) A special licence is intended to cover the hunting or capture of
protected species for the purpose of scientific research or education, and will be issued subject
to general and/or specific conditions prescribed by the Minister.
Crocodile hunting is a managed commercial activity which in Malawi is subject to a national annual
quota administered in accordance with the Convention on International Trade in Endangered Species
(CITES). The annual quota is divided between a limited number of crocodile hunters who are each
authorized to hunt under a modification of the annual game licence.
The CPWO is not obliged to issue any of the above categories of licence. Under sections 55, 57, 59 or
94, he may refuse to issue, suspend, revoke or cancel any licence in the event that the applicant or
licensee fails to meet the necessary criteria for the granting of a licence, if the applicant has committed
an offence under the Act within the previous 24 months, if he considers the applicant unfit to hold a
licence, or if the interests of wildlife management are best served by a temporary freeze on any class
of licence. Persons whose applications have been refused, or whose licences have been suspended or
revoked, have a right of appeal to the Minister, whose decision will be final.
The NPW (Amendments) Bill would amend the provisions for the licensed hunting or keeping of wild
animals in two ways. Firstly, it would add three new categories of licence:
• an animal captivity licence This licence would regulate the conditions under which citizens
or residents of Malawi might keep wild animals in captivity, an activity which is currently
widespread but unlawful.
• a game ranching licence A game ranching licence would authorise citizens or residents of
Malawi to ranch protected species of wild animals on private land.
• a crocodile hunting licence This new licence would be introduced in recognition of the
difference – in purpose and permissible methods – between commercial crocodile hunting and
sport hunting under the existing game licence.
Secondly, it would introduce the concept of a locally-issued permit in addition to the national game
licence or other classes of licence. A permit would apply to a specific Wildlife District, the boundaries
of which would be published in the Gazette, and permit fees would be applied for the benefit of the
communities within the Wildlife District in accordance with regulations to made by the Minister. The
permit scheme would add a degree of local control and resource rental from sport hunting on
customary land, and could become a vehicle for reinstating the role of traditional leaders in wildlife
management.
The purpose of Part VIII of the Act is summarised in section 63:
“63. The purpose of this part is to regulate methods of hunting and taking of animals and with a view to
ensuring that wildlife resources are better managed and the opportunity to hunt made available to as
many eligible persons as possible.”

Most of the sections in this part are concerned with the prohibition of methods of hunting which are
deemed to be harmful to wildlife and likely to result in unsustainably high levels of offtake, to cause
unnecessary pain or suffering or to cause contingent ecological damage. Hunting methods that are
prohibited under this Part include:
• the use of fire (section 64). Section 64 contains a confusing clause which appears to make it
lawful for the owners of private land to use fire for hunting: the NPW (Amendments) Bill
would remove this clause and leave no doubt that the use of fire in hunting is always
unlawful.
• the hunting of dependent young of any protected species, or of any female with dependent
young (section 65);
• the possession, manufacture, sale, purchase or use of poison, birdlime, trap, net, snare or
similar substance or device (subsection 66 (1) (a));
• the preparation or use of any pit, fence or enclosure (subsection 66 (1) (b));
• hunting during the hours of darkness (section 68);
• shooting from within 50 metres of a vehicle, aircraft or boat, or using a motor vehicle, aircraft
or boat to drive wild animals as an aid to hunting (section 70).
Under section 67 the Minister is empowered, on the advice of the Board, to make regulations
specifying the types and calibres of weapons which may lawfully be used in hunting protected
species, and under sections 71 and 72 the Minister may also make regulations prohibiting or
controlling the use of domestic animals in hunting (e.g. dogs) the use of baits, blinds or hides, and
hunting in the vicinity of water holes or salt licks.
Given the prohibition under section 66 of snares, poisons, traps, pits, nets and fences in the hunting of
protected species, section 69 is particularly confusing:
“69. Subject to regulations made by the Minister under this Act or any other written law, nothing in this
Act shall be construed to prohibit the hunting of animals by traditional methods in places other than
protected areas.”
The NPW (Amendments) Bill would repeal this section.
8.3.8 Collaborative Management Of Wildlife

The 1992 NPWA was developed in advance of the concept of co-management or collaborative
management, and therefore the Act contains no provision for community involvement in either
protected area management or the management of wildlife on customary land. The NPW
(Amendments) Bill proposes an entirely new Part to cater for this element of the draft National
Wildlife Policy. This Part, which closely parallels Part V of the Forestry Act (1997) (see Chapter 6,
page 6: 7) and Part III of the Fisheries Conservation and Management Act (1997) (see Chapter 7, page
7: 11), is based on the twin concepts of the wildlife management authority and the wildlife
management agreement, defined as follows:
• “wildlife management authority” means any local community organisation or other private
organisation established for the purposes of promoting local community participation in the
management of wildlife, and
• “wildlife management agreement” is an agreement between the CPWO and a wildlife
management authority to provide for the joint implementation of a wildlife management plan.
The new Part is purposefully brief, and allows for the details of implementation to be laid down in the
subsidiary legislation. It is reproduced here in full:
“22A. The purpose of this Part is to provide for local community participation in conservation and
management of wildlife.

22B.-(1) For proper management of wildlife, the Chief Parks and Wildlife Officer may enter into a
wildlife management agreement with a wildlife management authority providing for, inter alia-
(a) a management plan;
(b) assistance to be provided by the Department of National Parks and Wildlife; and
(c) rights and duties of the wildlife management authority.
(2) Subject to performance of unfulfilled obligation under a wildlife management agreement to
the right of a third party, a wildlife management agreement may be terminated by either
party.
(3) In the event of any dispute which cannot be resolved by the parties arising under a wildlife
management agreement, the matter shall be referred to the Minister.
Provided that any party aggrieved with the decision of the Minister may within thirty days
thereof apply to the High Court for a review of the decision.
22C.-(1) The Minister may, on the recommendation of the Board, make rules for the better
carrying into effect of the purposes of this Part.
(2) Without prejudice to the generality of subsection (1), the rules may-
(a) provide for the conservation and management of wildlife;
(b) facilitate the establishment of wildlife management authorities;
(c) encourage local government authorities, non-governmental organisations, the private
sector and other relevant institutions to contribute towards provision of wildlife
extension services in accordance with guidelines provided by the Chief Parks and Wildlife
Officer;
(d) provide for the establishment and management of multiple use wildlife areas outside
national parks and nature sanctuaries;
(e) authorize payments of grants or bonus out of public funds for encouragement of the
management of wildlife; and
(f) prescribe a mechanism for sharing costs and benefits between the Department of
National Parks and Wildlife and wildlife management authorities.”
Note that despite subsection 22C (2) (d) nothing within the proposed amendments would prevent the
application of a wildlife management agreement to an area within a National Park, and a means of
formalising community inputs into protected area management would therefore be created.
8.3.9 Trade In Wildlife And Wildlife Products

Part X of the Act – Commerce Related to Wildlife (sections 85 to 95), Part XI – Import, Export and
Re-Export of Wildlife Specimens of Protected Species and Listed Species (sections 96 to 99) and Part
XIV – Disposal of Government Trophies, Forfeited Specimens, Domestic Animals and other Articles
(sections 117 to 120) all have relevance here.
The basis of regulated trade in wildlife products is as follows:
(1) A person may acquire ownership of a protected species by taking or hunting such animal
under the authority of a licence issued in accordance with Part VII (see also “ownership”,
discussed on page 8: 7).
(2) If the owner wishes to retain the specimen so acquired, he must apply to the CPWO for a
certificate of ownership (section 88).
(3) Once ownership has been formalised in this way it may be transferred to another person, for
instance by gift or sale. The transfer of ownership must itself be certified by the CPWO. This

is effected by surrendering the old certificate to the CPWO, who will issue a replacement in
the name of the person to whom the specimen is to be transferred (section 89).
(4) Government trophies, for instance specimens of animals shot in crop protection operations, or
confiscated wildlife products, may be sold by the DNPW (section 118). In each instance a
certificate of ownership will be issued at the time of sale.
(5) Under the National Parks and Wildlife (Control of Trophies and Trade in Trophies)
Regulations (1994) a person may be licensed to trade in wildlife products and manufacture for
sale articles made from them (e.g. carved ivory). A trophy here means ivory and the whole or
any part of the horn, head, tusk, bone or skin of any protected species, but does not include an
article manufactured from a trophy. The holder of a Trophy Dealer’s Permit is required to
maintain a register showing all purchases of trophies and the numbers of the certificates under
which they were acquired, as well as their ultimate disposal.
(6) Imports, exports or re-exports of wildlife specimens may only be undertaken through a
customs post, and in each instance will require a permit issued by the CPWO.
Thus, trade in specimens or the products of protected species must in all cases be accompanied by
appropriate documentation, and specimens or trophies of protected species the ownership of which is
not certified by the CPWO are liable to confiscation.
8.4 WILDLIFE FUNCTIONS AT DISTRICT LEVEL
8.4.1 Discussion
In 1996, when the practical details of decentralisation were being considered on a department-by-
department basis, the management of National Parks and of wildlife on customary and private land
were not considered functions appropriate for devolution to the Assembly level7. The arguments for
this ran as follows:
• National Parks and Wildlife Reserves are national assets and have a national and in some
cases international relevance which transcends their physical boundaries. Also, they have no
permanent populations apart from the employees of the DNPW and a small number of private
sector operators managing tourism concessions. It was therefore thought inappropriate to
devolve their management to local government authorities.
• Outside the protected areas, the traditional functions of the DNPW at district level have been
the control of problem animals, including dangerous animals, and the investigation of
unlawful hunting and illicit trade in wildlife products. By their very nature these activities
require the deployment of an armed, para-military force capable of rapid deployment from
regional or sub-regional centres. The coordination and control of such a force was thought to
be the proper responsibility of a departmental headquarters, and not therefore suitable for
decentralisation.
The draft wildlife policy, and its expression in the National Parks and Wildlife (Amendments) Bill,
does however introduce a new community focus to wildlife management, and places emphasis on the
possibilities for wildlife management on customary and private land in addition to the continued
thrust in protected area management. Extension is seen as a function that will have to increase in
prominence if the new policy is to be implemented. Even in relation to the National Parks and
Wildlife Reserves, there is a new emphasis on building partnerships with boundary communities,
traditional leadership and other parties with an interest in the way in which the protected area is
managed.
7
The planning document “Malawi: Decentralization Policy Implementation (Capacity Assessment and Resource
Needs Study)” GoM/UNDP, August 1996, in which Chapter 3 describes the functions which could reasonably
be decentralized, contains no reference to the wildlife sector.

These new functions of the DNPW are much more typical of the kinds of function which are being
decentralised in other government departments. The possibility of re-thinking the decentralisation
programme to include wildlife extension does not arise, since the Department simply does not have
the field extension presence to reallocate to the District Assemblies. But the desirability of building an
awareness of wildlife issues into the other decentralised extension systems is a subject that warrants
consideration. It was foreseen in the NPW (Amendments) Bill, in a section quoted above:
22C.-(1) The Minister may, on the recommendation of the Board, make rules for the better
carrying into effect of the purposes of this Part. [Part IIIA – Local Community Participation]
(2) Without prejudice to the generality of subsection (1), the rules may- …
(c) encourage local government authorities, non-governmental organisations, the private
sector and other relevant institutions to contribute towards provision of wildlife
extension services in accordance with guidelines provided by the Chief Parks and Wildlife
Officer; …”
8.4.2 Incorporating wildlife issues into District Environmental Action Planning

A closely related problem concerns the way in which the wildlife sector will be treated in the process
of state of the environment reporting and environmental action planning at the district level and
below. Given the proposed participatory element embodied in these processes it is likely that some
wildlife issues will arise by themselves, but others will be missed (especially in instances where
wildlife is no longer seen to be an important resource but opportunities for enhancing its importance
may exist) and there is a danger that in the absence of trained staff the final district-level analysis will
underplay the sector’s importance. It is unlikely that the Department of National Parks and Wildlife
will be able to second senior staff to contribute to the preparation of DEAPs in more than a few
districts. The use of donor funds to deploy consultants for this purpose, possibly via a wildlife NGO,
is one possible route, but could not be considered a sustainable solution in the long term. A better
alternative might be to source funding to provide specialised training – to be managed by the DNPW
– for district level professionals from other “like-minded” disciplines (forestry, fisheries) for this
purpose.

NRM Policies and Laws in Malawi

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NRM Policies, Laws and Institutional Framework in Malawi – Volume 1

Table of Contents Page

1.1 Purpose and approach of the manual ...............................................................1.1

2. ENVIRONMENT MANAGEMENT ......................................................................2.1

2.1 The National Environmental Policy (1996) ......................................................2.1

3. DECENTRALIZATION AND NATURAL RESOURCES MANAGEMENT ...3.1

4. LAND USE AND MANAGEMENT........................................................................4.1

4.1 Preamble ..............................................................................................................4.1

5. WATER AND IRRIGATION..................................................................................5.1

Environmental Affairs Department

5.4 Water sector legislation ......................................................................................5.6

6.1 Preamble ..............................................................................................................6.1

7.1 Preamble ..............................................................................................................7.1

8. NATIONAL PARKS AND WILDLIFE .................................................................8.1

8.1 Preamble ..............................................................................................................8.1

Environmental Affairs Department

Director of Environmental Affairs, Private Bag 394, Capital City, Lilongwe 3.

1.2 PRINCIPLES AND STATUS OF POLICY CHANGE

1.2.1 Resource tenure

Environmental Affairs Department 1: 1

of management responsibilities through a formalised and legally binding system of management

1.2.2 Spreading the load: the partnership approach

1.2.3 New roles for Government

Environmental Affairs Department 1: 2

1.3 DECENTRALIZATION AND NATURAL RESOURCES MANAGEMENT

Environmental Affairs Department 1: 3

1.4 THE FORMAL PROCESS OF POLICY AND LEGAL CHANGE

1.5 THE ENVIRONMENT, RURAL LIFE AND LOCAL GOVERNMENT IN THE

Environmental Affairs Department 1: 4

1.5.1 The National Environmental Action Plan (1994)

Environmental Affairs Department 1: 5

1.5.2 The Environment Support Programme, 1998

1.5.3 The State of the Environment Report (1998)

Environmental Affairs Department 1: 6

2.1 THE NATIONAL ENVIRONMENTAL POLICY (1996)

2.1.1 Goals and Objectives of the National Environmental Policy

2.0 Policy Goals and Guiding Principles

Environmental Affairs Department 2: 1

3.0 Macro-Economic Policy Issues and Instruments

4.0 Cross-Sectoral Policy Objectives, Principles and Instruments

Environmental Affairs Department 2: 2

4.13 Land Tenure and Land Use

5.0 Sectoral Policy Objectives, Principles and Instruments

2.2 THE ENVIRONMENT MANAGEMENT ACT (1996)

Environmental Affairs Department 2: 3

Part II – General Principles

Environmental Affairs Department 2: 4

Part III – Administration

Environmental Affairs Department 2: 5

“12.– The Council shall –

Environmental Affairs Department 2: 6

Part IV – Environmental Planning

Part V – Environmental Impact Assessment, Audits and Monitoring

Environmental Affairs Department 2: 7

Part VI – Environmental Quality Standards

Part VII – Environmental Management

Environmental Affairs Department 2: 8

Part VIII – Pollution Control

Part IX – Inspection, Analysis and Records

Part X – Environmental Fund

Part XII – Legal Proceedings

Environmental Affairs Department 2: 9

Part XIII – Miscellaneous Provisions