JUDICIAL ENVIRONMENTAL LAW TRAINING
Country Context Report
A series of extracts and resources compiled by Lois Chisompola, postgraduate student at the University of Cape Town, South Africa, with supervision from Amy Sinclair, Managing Editor of the African Legal Information Institute (AfricanLII).
19 August 2019
1 Sources of environmental law in Malawi
A Domestic constitution and legislation
This is a non-exhaustive list of the most important legislation affecting environmental law issues in Malawi.
Legislation title and URL
The Constitution covers protection of the environment, sustainable development and agricultural development among others.
The Act provides for establishment of environmental protection areas and conservation of biological diversity and access to genetic resources. It also makes the provision of preparation of National Environment Actions Plans (NEAP), conducting of EIA, pollution control and waste management.
This Act covers the conservation and management of forests,Protected area, Biodiversity, Traditional rights/customary rights, Protection forest, Agro-forestry, Fuelwood, Non-timber products, Environmental audit, Afforestation/reforestation, Soil conservation/soil improvement, Soil rehabilitation.
This Act seeks to strengthen institutional capacity by involving various stakeholders in the management of fisheries; promotes community participation and protection of fish; and provides for establishment and operation of aquaculture.
The Act provides for wildlife management, including identification of species, which should be designated for protection.
The Act provides for the development and management of herbarium and botanic gardens as national heritage for Malawi and the establishment of the National Herbarium & Botanic Gardens of Malawi.
The Act provides for the management, conservation, use and control of water resources; for the acquisition and regulation of rights to use water
The Act provides for the safe management of biotechnological activities.
The Act provides for the eradication of pests and diseases destructive to plants to prevent the introduction and spread of pests and diseases destructive to plants.
The Act covers land tenure, traditional or customary rights, agricultural land and land-use planning, among others.
The Act covers Ecosystem preservation, Sustainable development, Basic legislation, Land tenure, Common property, Traditional rights/customary rights, Cadastre/land registration, Ownership, Expropriation, Institution, Court/tribunal, Mountain area, Community management, Sustainable use.
This Act covers sustainable development and management of irrigation, protection of the environment from irrigation related degradations, among others.
The Act covers water supply, Institution, Sewerage, Freshwater quality/freshwater pollution.
B Domestic executive decision-making
This is a list of the key executive decision-makers in the Malawian executive branch of government.
1. Ministry of Natural Resources, Energy and Environment
· Department of Environmental Affairs: responsible for all matters related to the environment and it is housed at City Centre.
· Department of Forestry : handles all matters to do with Malawi’s Forest reserves
· Department of Mines : handles all matters to do with the Mining sector
· Department of Climate Change and Meteorological Services: responsible for all matters to do with climate change and meteorological services such As climate and weather.
2. Ministry of Finance, Economic Planning and Development
· Department of Economic Planning and Development
3. Ministry of Agriculture, Irrigation and Water Development (MOAIWD)
· Department of Land Resources Conservation
· Department of Irrigation and Water Development
· Department of Animal Health and Industry
4. Ministry of Lands, Housing and Urban Development
· Department of Lands
5. Ministry of Foreign Affairs and International Cooperation
· Department of International Cooperation
2 Environmental Law Topics in Malawi
A Energy, Minerals and Extractives
Malawi has been a globally insignificant producer or consumer of minerals, with the sector providing a modest 1% of GDP. In 2009 Malawi’s first significant mine, Paladin’s Keyelekera uranium mine in northern Malawi, began production. Prior to this, the proposal by the Australian company, Paladin Energy, Ltd, to mine uranium at Kayelekera (west of Karonga in northern Malawi) ran into significant criticism from local NGOs and civil society members, who concluded that the company’s environmental impact assessment and environmental plan for the project were inadequate to protect the environment and local population from anticipated negative impacts of the mining operation. Following court action and the company’s attention to anticipated environmental impacts, the project proceeded. In late 2009, the mine was near its target production of 200,000 pounds per month. As of 2002, approximately 40,000 Malawians, 10% of whom are women, were engaged in artisanal mining.
The Ministry of Natural Resources, Energy and Environment (MNREE) has reported the existence of a variety of unexplored and unexploited mineral resources in Malawi, including significant reserves of coal. Quarrying and mining operations can however, result in soil erosion in riverbanks and valleys, create breeding grounds for mosquitoes, and pollute water resources. The 2002 Land Policy identifies the significant environmental consequences of unregulated mining operations, and calls for enforcement of requirements for environmental impact assessments, conservation method (including the establishment of funds to compensate those adversely affected by mining activities), and requirements that mining and quarrying operators pay the cost of reclaiming land. The government has drafted a new mining policy and law and is developing a comprehensive strategy to adopt and implement the new legal framework and create a sustainable regulatory environment to encourage responsible development of the sector. Civil society has proved to be an active force in enforcing obligations for environmental impact assessments and plans to rehabilitate mining sites. The government also completed a draft policy governing the mining sector, and presented a mining law to industry members and NGOs for discussion in April 2010. The Ministry of Natural Resources, Energy and Environment (MNREE) and Ministry of Finance are working with the World Bank on a strategy for finalizing the new legal framework and developing and implementing a comprehensive strategy for developing the sector. Malawi is a signatory to the Protocol on Mining under the SADC. The purpose of the Protocol is to harmonize national and regional policies and strategies related to the development and exploitation of mineral resources. The Protocol is potentially a powerful instrument for the effective management of mineral resources for economic development and poverty reduction.
United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016.
B Coastal, marine and fisheries
In Malawi, terrestrial and aquatic ecosystems are being modified, degraded and species composition altered due to the unsustainable utilisation and management of natural resources. As for aquatic ecosystems, the periodic drying up of Lake Chilwa due to the degradation of catchment areas and climate change threatens the survival of both bird and fish species. In this regard Malawi adopted its first National Biodiversity Strategy and Action Plan (NBSAP) in 2006. Its implementation has been slow, uncoordinated and poorly monitored, however certain successes have been achieved. Malawi has since adopted the NBSAP II which provides Malawi’s strategies and action plans for the management of biodiversity from 2015-2025.It has been prepared in response to the Malawi Growth and Development Strategy II (MGDS II 2011-2016), which prioritises biodiversity management programs among other socio-economic and environmental issues. The strategy’s mission is to effectively implement programs that minimize the loss of biodiversity in order to ensure that ecosystems are resilient and continue to provide essential services, thereby securing the quality of life and contributing to human wellbeing and poverty eradication.The goal of the strategy is to enhance the conservation and sustainable use of biodiversity for the environment and human wellbeing.
Malawi’s interest in the SADC Protocol on Transboundary Water Resources is mobilising support for water management under scarcity (Malawi is the second most water stressed country per capita after South Africa); managing cooperation and territorial claims with Tanzania; navigational claim on the Zambezi (access to sea). Malawi is part of the Zambezi Watercourse Commission whose wide mandate, includes collection, evaluation and dissemination of data, promoting, supporting, coordinating and harmonising management and development of the water resources, promoting the harmonisation of national policies. Most usefully, will be a platform to build on high-level basin planning and systems studies as core of its advisory mandate.
United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016.
C Agriculture, plants and forestry
The estimated potential for irrigation in Malawi is about 200,000 hectares for formal irrigation and 100,000 hectares for small-scale irrigation. The Lower Shire River Valley is considered to have the greatest potential for development of irrigated agriculture. Malawi’s forests provide crucial natural resources for Malawi’s people. Ninety-seven percent of rural households rely on forests and woodlands for fuelwood, which is the primary energy source for cooking. Local populations also use forest resources for food, traditional medicines, cultivation, and income-producing activities such as charcoal production and brick making. Although, the national rate of deforestation has slowed in recent years, almost 1% of forest land is still lost annually. The devastation is particularly marked in the densely populated southern region of the country where 50% of the country’s people reside and only 20% the country’s forest land remains. Biological diversity is threatened by habitat encroachment and decline, overharvesting, and the introduction of alien species.
Tree cover in most forest reserves has been markedly reduced due to continuous degradation in surrounding areas. For example, the Liwonde Forest Reserve covers a designated area of 284 hectares however forest cover had been reduced to 70 hectares of the reserve in 2013. Deforestation is occurring at a rapid rate and is attributed to agricultural expansion, demand for fuelwood, charcoal production, and income-generation activities such as tobacco curing and brick burning. Implementation of the government’s progressive policy and guidelines for local management of forest resources has been limited to a handful of projects, which have shown some success. Lack of funding and institutional capacity-building have constrained the expansion and institutionalization of community-based programs. Forest land comprises 36% of the total land area. As of 2012, the gene banks of the Plant Genetic Resource Centre had over 4,613 accessions from 32 species and, of these, 4,097 are seed samples and 516 are vegetative materials collected from all districts in Malawi. Changes in the rainfall pattern have affected the growing period making it difficult for indigenous crop varieties to survive. This has resulted in more people planting hybrid seed and other improved varieties thus threatening the maintenance of indigenous seed varieties. Recognizing that agricultural performance continues to be hampered by adverse weather shocks, the government launched the National Agricultural Policy 2016 to increase production and the National Irrigation Policy 2016 to support irrigation, agricultural diversification, and value addition.
Biodiversity in Malawi is also threatened by pollution from agricultural runoff, sewage and industrial wastes. Although the Malawi Government encourages use of organic fertilizers, the Farm Input Subsidy Programme (FISP), currently being implemented across the country has increased the number of inorganic fertilizers users. Currently over 70% of the farming population in Malawi uses inorganic fertilizers to enhance agriculture productivity. This type of reliance on agriculture chemicals has a negative ecological impact on biodiversity habitats like water and soil which are continuously being contaminated. The government through its NBSAP has embarked on various strategies to conserve biodiversity, for instance, genetic resources of different plant species are conserved at the National Plant Genetic Resource Centre, Agricultural Research Stations, Botanical Gardens, academic institutions and the Forestry Research Institute of Malawi. As of 2012, the gene banks of the Plant Genetic Resource Centre had over 4,613 accessions from 32 species and, of these, 4,097 are seed samples and 516 are vegetative materials collected from all districts in Malawi.
Ministry of Natural Resources, Energy and Mining, Sixth National Report to the Convention on Biological Diversity, March 2010.
D Climate change, natural disasters and air quality
Fifth National Report to the Convention on Biological Diversity
The Fifth National Report indicates that most ecosystems are vulnerable to climate change because species within the ecosystems fail to tolerate the stresses climate changes bring. Malawi is particularly vulnerable to adverse effects of climate change. Floods and droughts are the most common occurrences that affect biodiversity in the country. Just recently, Cyclone Idai left families in Malawi, facing devastation, and hundreds of children in need of urgent assistance. Severe droughts that have occurred over the years have caused major fish habitats like Lake Chilwa wetland to dry up leading to losses in fish stocks.The Lake Chilwa Basin Climate Change Adaptation Programme is promoting solar drying of fish, as well as energy-saving fish-smoking kilns that reduce the use of firewood by 60%. The Fifth National Report also indicates that although not scientifically proven, climate change impacts appear to affect Malawi’s fragile ecosystems such as the montane forests. For instance, higher and previously cooler places on Mt. Mulanje have become warmer and species compositions are changing, allowing low altitude plant species to flourish. This may have a direct result on the loss or poor performance of species that were/are adapted to cold temperatures like the Mulanje cedar.
Although air pollution is not yet a big environmental problem in Malawi, generally in major urban areas gaseous emissions from industries, car exhaust fumes as well as burning of old tires pollute the air. In the rural areas, uncontrolled bush-fires also pollute the air apart from destroying vegetative cover. Air pollution also arises from quarrying and coal mining activities. With the increased scope of these activities, air pollution could be a serious problem for biodiversity in Malawi.
Ministry of Natural Resources, Energy and Mining, Fifth National Report to The Convention on Biological, March 2019.
The country has 650 species of birds, large populations of elephant, hippos, zebra, and crocodiles, and has reintroduced lions and black rhinos. There are about 192 mammal species in Malawi, of which 8 are listed as threatened under IUCN (2013). About 83 species of amphibians have been recorded in Malawi, of which 6 species are endemic and 12 threatened. The country has 145 species of reptiles, of which 12 are endemic and six rare. There are 630 known bird species, of which 4 are endemic and 7 threatened. The Fifth National Report on Biodiversity indicates that mammal species on the other hand have undergone severe decline in numbers, especially in recent years, mainly due to poaching and habitat loss. The government is however taking several initiatives to increase the mammal populations in protected areas. The population census conducted in Nyika National Park in 2013 revealed that there was an increased trend in some large mammals in the park. This is attributed to the Nyika Vwaza Transfrontier Project, which is aimed at sustainably managing the Nyika Vwaza Conservation area.
Secretariat of the Convention on Biological Diversity, ‘Malawi Country Profile’.
F Protected areas
The greatest diversity of plants and animals exists in the country’s 97 protected areas (90% of which are forest reserves). Malawi has a total of over 6,000 flowering plant species, of which 122 are endemic, and 248 species are threatened with extinction.The country has 11 protected tree species, most of which are found in the protected areas. Wildlife is rarely found outside protected areas, which are scattered throughout the country. The largest parks are the Nyika National Park (3200 square kilometerss) in the north, and Kasungu National Park (2100 square kilometers) in the central region, bordering Zambia. Nineteen percent of the country’s total land area is protected.
Environmental Affairs Department, Ministry of Natural Resources, Energy and Mining, Malawi National Biodiversity Strategy and Action Plan II (2015-2025) February 2015.
G African customary law and rights of indigenous peoples
Customary law governs land allocation, land use, land transfers, inheritance, and land-dispute resolution related to Malawi’s customary land. The 2002 Land Policy recognizes the authority of customary law and traditional authorities and calls for incorporation of the traditional authorities into the land-administration structure.Despite the formal legislation and guidelines governing forest land rights, for communities in many areas of the country, customary law and traditional practices govern forest access and use of forest products. Customary law is often highly localized, but some general principles apply, such as the understanding that forests are controlled by chiefs and village headmen, but their resources can be exploited by the entire community. Local communities use forests for hunting, grazing, settlement areas, cultivation, and graveyards. Biodiversity satisfies a number of socio-cultural functions in Malawi as well. Most Malawian ethnic groups believe in the existence of a supernatural being or ancestral spirits associated with graveyards or mountain areas covered by forest biodiversity. For example, the Mang’anja of Nsanje worship their ancestral spirit M’bona in Khuluvi Forest. Gule wa Mkulu from the Chewa tribe and Ingoma dance from the Ngoni tribe also have their regalia based on plants and animal products. These practices contribute to knowledge and conservation of biodiversity in sacred sites. Traditional leaders are charged with the responsibility of ensuring that forest resources are exploited in a manner that serves the interests of the community.
Ministry of Natural Resources, Energy and Mining, Fifth National Report to The Convention on Biological, March 2019.
 Kayelekera Mine is wholly owned through Paladin (Africa) Limited (PAL), a subsidiary of Paladin. In July 2009, Paladin issued 15% of equity in PAL to the Government of Malawi under the terms of the Development Agreement signed between PAL and the Government in February 2007, which established the fiscal regime and development framework for Kayelekera Mine.The Mining Licence, ML152, covering 5,520 hectares, was granted in April 2007 for a period of 15 years, following the completion of the Development Agreement with the Government of Malawi. A Bankable Feasibility Study and EIA followed, and construction started in June 2007 with completion in early 2009. Paladin Energy, Ltd. Kayelekera: Current Status. 2010 available at http://www.paladinenergy.com.au/default.aspx?MenuID=33 (accessed 3 August 2019).
 Ministry of Lands and Housing, National Land Policy, 2002 https://cepa.rmportal.net/Library/government-publications/National%20Land%20Policy%202002.pdf/view accessed on 3 August 2019
 Sean Woolfrey and Mike Muller, Understanding the SADC water agenda Managing or developing regional water resources. 2017 available at https://ecdpm.org/wp-content/uploads/SADC-Water-Background-Paper-PEDRO-Political-Economy-Dynamics-Regional-Organisations-Africa-ECDPM-2017.pdf accessed on 3 August 2019.
 Available at https://www.land-links.org/wp content/uploads/2016/09/USAID_Land_Tenure_Malawi_Profile.pdf accessed on 3 August 2019.
 Ministry of Water Development. ‘Report on the Malawi National Consultative Meeting on the World Commission on Dams (WCD) Report – Dams and Development: A New Framework for Decision-making.’ 2004 available at http://www.unep.org/dams/files/Country%20Dialogues/malawi_report.pdf ( accessed on 3 August 2019).
 Gowela, Julio P. and C. Masamba. State of Forest and Tree Genetic Resources in Malawi. Paper prepared for the Second Regional Training Workshop on Forest Genetic Resources for Eastern and Southern African Countries, December 6–10, Nairobi, Kenya; and updated for the SADC Regional Workshop on Forest and Tree Genetic Resources, June 5–9, 2000, Arusha, Tanzania available at http://www.fao.org/DOCREP/005/AC468E/AC468E00.HTM (accessed on 3August 2019).
 United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance, 2016 available at https://www.land-links.org/wp content/uploads/2016/09/USAID_Land_Tenure_Malawi_Profile.pdf accessed on 3 August 2019.
 World Bank. National Water Development Project: Implementation Completion Report. Report No: 29336. World Bank Africa Regional Office.s. 2004 available at http://ddp-ext.worldbank.org/ext/DDPQQ/member.do?method =getMembers&userid=1&queryId=137 accessed on 4 August 2019.
 African Development Bank Group: Malawi Economic Outlook. 2019 available at https://www.afdb.org/en/countries/southern-africa/malawi/malawi-economic-outlook, accessed on 3 August 2019.
 Ministry of Natural Resources, Energy and Mining, Fifth National Report to The Convention on Biological, March 2019 available at https://www.cbd.int/doc/world/mw/mw-nr-05-en.doc, accessed on 3 August 2019
 The Secretariat, The Convention on Biodiversity available at https://www.cbd.int/countries/profile/default.shtml?country=mw accessed on 2 August 2019.
 United Nations Children’s Fund, Massive Flooding in Mozambique, Malawi and Zimbabwe, 2019 available at https://www.unicef.org/stories/massive-flooding-malawi-mozambique-and-zimbabwe accessed on 3 August 2019.
 The Secretariat, The Convention on Biological Diversity available at https://www.cbd.int/countries/profile/default.shtml?country=mw accessed on 4 August 2019.
 Ministry of Energy, Natural Resources and Environment, Environmental Affairs Department State of Environment and Outlook Report. 2010 available at https://www.undp.org/content/dam/malawi/docs/environment/Malawi%20State%20of%20the%20Environemnt%20and%20Outlook%20Report_2010.pdf accessed on 2 August 2019.
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 The Secretariat, The Convention on Biological Diversity available 2019 https://www.cbd.int/countries/profile/default.shtml?country=mw accessed on 3 August 2019.
 Halle, B. and J. Burgess. 2006. European Commission Framework Contract: Europe Aid/119860/C/SV/multi, Environment, Malawi available at http://ec.europa.eu/development/icenter/repository/malawi_CEP_2006_final.pdf assessed on 3 August 2019.
 World Bank. National Water Development Project: Implementation Completion Report. Report No: 29336. World Bank Africa Regional 2004 Office.s. available at http://ddpext.worldbank.org/ext/DDPQQ/member.do?method =getMembers&userid=1&queryId=137 accessed on 3 August 2019.
 Chirwa, Ephraim W. 2004. Access to Land, Growth and Poverty Reduction in Malawi. Paper for Macroeconomic Policy Choices for Growth and Poverty Research Project, North-South Institute, Ottawa cited United States Agency for International Development (USAID) Country Profile, Property Rights and Resource Governance available at https://www.land-links.org/country-profile/malawi/#land accessed on 3 August 2019.
 Mwase, W.F., A. Bjornstad et al. 2006. The Role of Land Tenure Institutions in Conservation of Tree Species Diversity in Southern Malawi. A Norwegian University of Life Sciences Report.http://www.indiana.edu/~iascp/bali/papers/Mwase_%20Weston_Bjornstad_Boko... accessed on 3 August 2019.