Malawi's legal framework does not allow populace to benefit fully from minerals endowment

26 April 2010, Mining Weekly
URL: http://www.miningweekly.com/article/malawians-fail-to-benefit-from-mining-activities-15-years-into-democracy-2010-04-23

Johannesburg: Concerns over the level of benefits the Malawi population is deriving from mining activities were raised at the recent Southern African Resource Watch conference, held in Johannesburg.

Historically, Malawi was never considered a mining hot spot owing to the perception that the country lacked natural resources. Former State President Dr Hastings Kamuzu Banda used to rally the Malawi population to greater efforts by stating that, while the country did not have gold, diamonds or copper, it did have fertile soil and plentiful water. As a result, government capa-city to implement mining legislation was seriously lacking.

In his report, ‘Malawi and its Minerals: Are Malawians benefiting?’, Malawi Institute for Policy Interaction executive director Rafiq Hajat states: “If proper legislative and monitoring infrastructure was put in place to ensure that the nation and its people, in particular, receive an equitable share of its wealth, this would provide the stimulus that Malawi needs to move out of the perennial poverty trap that it has languished in for so many decades.”

This would mean that the legislative framework would have to move beyond the framework established in the 1980s.

Currently, the Mines and Min-erals Act, of 1981; the Mines and Minerals Regulations, of 1981; and the Petroleum Act, of 1983, govern mineral activities in Malawi. These were established during Banda’s one-party regime and, thus, relate to a time that has no bearing on the present political climate. During Banda’s regime, it was the norm to vest everything in the country in his party. Since this has not been amended, all minerals are still vested in the President on behalf of the people of Malawi.

The current President is Bingu wa Mutharkia.

With the establishment of new environmental laws in 1995, the legislation was amended, albeit in a piecemeal manner. All minerals are still vested in the President.

“The methodology used in assessing and granting approvals for applications for prospecting and mining licences still vests too much power in Ministerial discretion, and does not provide for broad-based consultations with stakeholders, such as civil society, traditional authorities and professional bodies. Further, there is no provision for parliamentary scrutiny or oversight in the appraisal of mineral extraction applications that have national significance and ramifications,” said Hajat.

He added that there were some initiatives in 1995 to formulate and adopt a national mining policy. However, its current status was unclear, and the degree of inclusivity, when it came to widespread consultation that would ensure the views and aspirations of ordinary Malawians were realised, had not been defined.

Hajat concluded that Malawi’s political landscape had changed drastically since 1981 and the archaic pieces of legislation must be reviewed to keep up with the changing technological, geo-political and global resource challenges that confronted the country today.