Irrigation Act

Jurisdiction
Malawi
Citation
Chapter 72:04
Date
31 December 2014
Language
English
Type
Legislation
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Malawi

Irrigation Act

Chapter 72:04

  • Commenced on 31 January 2002
  • [This is the version of this document at 31 December 2014.]
  • [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
An Act to make provision for the sustainable development and management of irrigation, protection of the environment from irrigation related degradations, establishment of the National Irrigation Board and for matters connected therewith or incidental thereto

Part I – Preliminary provisions

1. Short title

This Act may be cited as the Irrigation Act.

2. Interpretation

In this Act, unless the context otherwise requires—"Board" means the National Irrigation Board established under section 5;"Chairman" means the Chairman of the Board who is elected under section 6 (3);"committee" means a committee of the Board established under section 11;"drainage" means removal of excess surface and ground water from agricultural land;"existing Government smallholder irrigation scheme" means a smallholder irrigation scheme specified in the Schedule;"Executive Secretary" means the Executive Secretary of the Board who is appointed under section 21;"farm" includes garden, plot or any other agricultural holding;"farmer" means an owner or subsector of an agricultural holding or a tenant;"Fund" means the Irrigation Fund established under section 25;"immediate family member", in relation to any person, means that person’s spouse, child, parent, brother, sister, grandchild or grand parent;"irrigation" means application of water, confined in time and space, enabling satisfaction of water requirements of a crop at a given time of its vegetative cycle or to bring the soil to the desired moisture level outside the vegetative cycle and, in the case of a field, includes one or more water applications per season;"irrigation consultant" means any person engaged to carry out civil works related to irrigation and drainage;"irrigation management authority" means any local community organization established for the purpose of promoting local participation in the development and management of irrigation and includes any irrigation scheme, club, cooperative or association;"irrigation scheme" means a systematic and orderly irrigation programme covering a defined area of land regardless of the type or system of irrigation employed;"member" means a member of the Board;"Policy" means National Irrigation Policy and Development Strategy;"public watercourse" means a public watercourse which is commonly used for irrigation; and"Register" means the register kept by the Board under section 40.

Part II – National Irrigation Policy and Development Strategy

3. Policy to rank paramount

Every public officer and any authority in Malawi exercising or performing powers, duties or functions in connexion with or concerning the commitment of the Government in development and management of irrigation in Malawi as declared in the National Irrigation Policy and Development Strategy (in this Act otherwise referred to as the "Policy") shall, in the exercise of his powers or the performance of his duties or functions, consider and treat the Policy as ranking paramount in the business of the Government and shall further consider it to be his paramount duty to act with all due diligence and dispatch in taking such action as is required or necessary to give effect to the Policy.

4. Publication and revision of Policy

(1)The Policy shall be published by the Minister for general distribution and copies of its publication shall be made freely available and without charge in and outside Malawi to bodies connected with irrigation.
(2)Following any change in the Policy or following any legislative or statutory action or other action having similar effect taken by the Government in pursuance or in the implementation of the Policy, the Minister shall publish in the Gazette the changes.

Part III – Establishment of the Malawi Irrigation Board

5. Establishment of the Malawi Irrigation Board

There is hereby established a Board to be known as the Malawi Irrigation Board (in this Act otherwise referred to as the "Board").

6. Composition of the Board

(1)The Board shall consist of—
(a)six persons, who shall be appointed by the Minister, at least four of whom shall be appointed from industry, academic, research and irrigation institutions;
(b)two local farmers who shall be appointed by the Minister from irrigation organizations; and
(c)the following ex officio members—
(i)the Secretary for Agriculture or his representative;
(ii)the Secretary for Lands or his representative;
(iii)the Secretary for Water Development or his representative; and
(iv)the Controller of irrigation Services.
(2)A representative of an ex officio member referred to in subsection (1) shall be designated by, or on behalf of, the ex officio member by a notice in writing to the Board to attend the meetings of the Board and, upon such designation, such representative shall not attend to the business of the Board by representation.
(3)The Chairman shall be elected by the Board from among its members:Provided that no member appointed under paragraph (c) of subsection (1) shall be elected as Chairman.

7. Tenure of office and vacancies

(1)Subject to subsection (2), a member, other than an ex officio member, shall hold office for a period of three years and shall be eligible for re-appointment for another three-year term but the office of the member shall become vacant—
(a)if he resigns by giving one month notice in writing to the Board;
(b)upon his death;
(c)if he is absent without valid excuse from three consecutive meetings of the Board of which he has had notice;
(d)if he becomes an undischarged bankrupt;
(e)if, upon conviction of any offence of moral turpitude, he is sentenced to a term of imprisonment exceeding six months without the option of a fine;
(f)if he becomes of unsound mind; or
(g)if he participates, directly or indirectly, in an activity which is in contravention of this Act.
(2)A member, other than an ex officio member, shall be subject to removal by the Minister on grounds of incompetence, incapacity or being compromised in the exercise of his duties to the extent that his ability to give objective advice is seriously in question.
(3)On vacation of office by a member, the vacancy shall be filled by a person appointed in accordance with the provisions of section 6 (1) (a) under which the former member was appointed:Provided that if the remaining period is less than six months, the Minister may decide not to have the vacancy filled until the expiry of the period.

8. Allowances and expenses of members

(1)Members or members of a committee shall be paid such an allowance as the Minister shall determine.
(2)The Board may make provision for the reimbursement of any reasonable expense incurred by a member or a member of a committee in connexion with the business of the Board or the committee.

9. Policy directions

The Board may, where necessary, seek the general direction of the Minister on the manner in which it is to carry out its duties under this Act.

10. Proceedings of the Board

(1)Subject to the other provisions of this Act, the Board may regulate its own procedure.
(2)The Board shall meet for the transaction of business at least once every three months at such places and at such times as the Chairman may determine.
(3)An extraordinary meeting of the Board may be called by the Chairman upon written notice of not less than seven days received from any member and shall be called if at least four members so request in writing:Provided that if the urgency of any particular matter, does not permit the giving of such notice, an extraordinary meeting may be called upon by giving a reasonable notice.
(4)Half of the members shall form the quorum of any meeting of the Board.
(5)There shall preside at any meeting of the Board—
(a)the Chairman; and
(b)in the absence of the Chairman, such member as the members present and forming a quorum may elect among their number for the purpose of that meeting.

11. Committees of the Board

(1)The Board may, for the purpose of performing its functions under this Act, establish other committees and delegate to any such committee such of its functions as it considers necessary.
(2)The Board may appoint as members of a committee established under subsection (1) persons who are or are not members of the Board and such persons shall hold office for such period as the Board may determine.
(3)Subject to any specific or general direction of the Board, a committee may regulate its own procedure.

12. Minutes of meetings

The Board shall cause minutes to be kept of the proceedings of every meeting of the Board and of every meeting of a committee.

13. Disclosure of interest by members

(1)If any member is present at a meeting of the Board or of any committee at which any matter which is the subject of consideration is a matter which that person or his immediate family member or his professional or business partner is directly or indirectly interested in a private or professional capacity, he shall, as soon as is practicable after the commencement of the meeting, disclose such interest and, unless the Board or the committee otherwise directs, that person shall not take part in any consideration or discussion of, or vote on, any question touching on such matter.
(2)A disclosure of interest shall be recorded in the minutes of the meeting at which it is made.

14. Protection of members

No action, suit or other proceedings shall be brought or instituted personally against any member or a member of a committee in respect of any act done in good faith in the course of carrying out the provisions of this Act.

15. Invited persons

(1)The Board may in its discretion at any time and for any period invite any person, and the Minister may in like manner nominate an officer in the public service, to attend any meeting of the Board or of any of its committees and take part in the deliberations of the meeting but such person or officer shall not be entitled to vote at the meeting.
(2)Section 14 shall apply, mutatis mutandis, to a person or an officer attending ameeting of the Board or committee pursuant to subsection (1).

16. Oath of secrecy

Every—
(a)member;
(b)member of a committee;
(c)employee of the Board; and
(d)consultant in the service of the Board,
shall, upon assumption of his office, take such oath of secrecy as may be approved by the Board or as may otherwise be prescribed under this Act.

17. Prohibition of publication or disclosure of information by unauthorized persons

(1)No person shall, without the consent in writing given by or on behalf of the Board, publish or disclose to any person, otherwise than in the course of his duties, contents of any document, communication or information which relates to, and which has come to his knowledge in the course of, his duties under this Act.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K100,000 and to imprisonment for five years.

Part IV – Functions and powers of the Board

18. Functions of the Board

(1)The functions of the Board shall be to advise Government and other stakeholders on policy matters relating to irrigation and drainage.
(2)Without prejudice to the generality of subsection (1), the Board shall—
(a)approve standards and guidelines for the development and management of irrigation and drainage;
(b)consider and advise on proposals for the enactment of legislation that may affect irrigation and drainage;
(c)review progress of the development and management of irrigation and drainage at national level;
(d)act as a forum for information sharing;
(e)conduct an inquiry into any matter falling within the scope of the functions of the Board;
(f)exercise authority affecting registration of irrigation consultants under this Act; and
(g)promote and maintain cooperation in irrigation and drainage with similar bodies in other countries and with international bodies connected with irrigation and drainage.

19. Powers of the Board

Subject to the directions of the Minister, whether general or special, the Board shall have the power to do all such things as are incidental or conducive to the carrying out of its functions under this Act.

Part V – The Secretariat of the Board

20. Secretariat of the Board

The Secretariat of the Board shall consist of the Executive Secretary and such other suitably qualified public officers as may be required for the proper administration of this Act.

21. Executive Secretary of the Board

(1)The Board shall appoint, on such terms and conditions as it may determine, an Executive Secretary of the Board who shall be the chief executive of the Board and shall in addition perform such duties as the Board shall assign to his office and ensure the effective administration and implementation of this Act.
(2)For the avoidance of doubt, the Executive Secretary shall be appointed from within or without the civil service.
(3)Without derogation from the generality of the responsibilities and duties of the Executive Secretary conferred under subsection (1), the Executive Secretary shall be responsible for the day to day administration of the Board.
(4)The Executive Secretary, or such other officer of the Board as the Executive Secretary may designate, shall attend meetings of the Board and of any committee and may address such meetings but shall not vote on any matter:Provided that the person presiding at any meeting may, for good cause, require the Executive Secretary or such other officer to withdraw from such meeting.
(5)Section 14 shall apply, mutatis mutandis, to the Executive Secretary and other employees of the Board.

22. Other employees

(1)The Board may appoint, on such terms and conditions as it may determine, such other employees, subordinate to the Executive Secretary, as it considers necessary for the performance of its functions and to assist the Executive Secretary in discharging his duties and responsibilities.
(2)The Board may delegate to the Executive Secretary the appointment of employees of the Board of such junior ranks as the Board shall specify.

23. Disclosure of interests by employees, etc.

(1)An employee of the Board or a consultant to the Board who, or whose immediate family member, is directly or indirectly interested in a private, professional or official capacity in any matter being considered by the Board shall disclose such interest.
(2)A disclosure of interest under subsection (1) shall be made to the Executive Secretary who shall take such decision as he considers appropriate in each case and submit a report thereon to the Board.

24. Functions of the secretariat of the Board

(1)The secretariat of the Board shall be responsible for implementing the programmes of the Board.
(2)Without prejudice to the generality of subsection (1), the secretariat of the Board shall—
(a)provide administrative backup services to the meetings and other functions of the Board;
(b)compile and present to the Board irrigation and drainage programmes for review;
(c)manage and coordinate the Fund in accordance with general and specific directions of the Board;
(d)prepare and submit annual progress reports for consideration by the Board; and
(e)perform such other functions as may be assigned to it by the Board.

Part VI – Irrigation Fund

25. Establishment of the Irrigation Fund

(1)There is hereby established a fund to be known as the Irrigation Fund (in this Act otherwise referred to as the "Fund").
(2)The Fund shall consist of—
(a)such sums as shall be appropriated by Parliament for the purposes of the Board;
(b)any levy imposed pursuant to section 33;
(c)advances made to the Fund under section 27;
(d)such sums as are paid under this Act by way of fees, fines or other penalties;
(e)such sums or other assets as may be received by the Board under subsection (3); and
(f)such moneys as may otherwise vest in or accrue to the Board.
(3)The Board may—
(a)accept money by way of grants or donations from any source in or outside Malawi;
(b)with the approval of the Minister, raise by way of loans from any source, in or outside Malawi, such money as it may require for the discharge of its functions; and
(c)charge and collect fees in respect of programmes, publication, documents and other services provided by the Board.

26. The Fund to vest in the Minister

The Fund shall be vested in the Minister and, subject to this Act and the Finance and Audit Act, shall be administered in accordance with his directions.[Cap. 37:01]

27. Advances to the Fund

If in any financial year the income of the Fund together with any surplus income brought forward from a previous year is insufficient to meet the actual or estimated liabilities of the Fund, the Minister responsible for finance may make advances to the Fund in order to meet the deficiency or any part thereof and such advances shall be made on such terms and conditions, whether as to repayment or otherwise, as the Minister responsible for finance may determine.

28. Objects of the Fund

The objects for which the Fund is established shall be the development and management of irrigation and drainage.

29. Application of the Fund

Without derogation from the generality of section 28, the Fund may be applied for the purposes of—
(a)financing, by way of loans or grants, any research or study carried on, by or for the benefit of persons or organizations engaged in irrigation and drainage;
(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)paying the cost of any irrigation scheme which the Minister, on the recommendation of the Board, considers to be in the interest of the development and management of irrigation and drainage;
(d)meeting any expenses of the Board and those arising from the establishment and maintenance of the Fund; and
(e)any purpose which the Minister, on the recommendation of the Board, considers to be in the interest of the objects of the Fund.

30. Books and other records of accounts, audit and reports of the Fund

(1)The Minister shall cause to be kept proper books and other records of account in respect of receipts and expenditure of the Fund.
(2)The accounts of the Fund shall be audited by the Auditor General who shall have all the powers conferred upon him by the Finance and Audit Act.[Cap. 37:01]
(3)The Minister shall cause to be prepared, as soon as practicable, but not later than six months after the end of the financial year, an annual report on all the financial transactions of the Fund.
(4)The report under subsection (3) shall include a balance sheet, an income and expenditure account and the annual report of the Auditor General and shall be laid by the Minister before the National Assembly.

31. Holdings of the Fund

(1)All sums received for the purposes of the Fund shall be paid into a bank account and no amount shall be withdrawn therefrom except by means of cheques signed by such persons as are authorized in that behalf by the Minister.
(2)Any part of the Fund not immediately required for the purposes of the Fund may, on the recommendation of the Board, be invested in such manner as the Minister, after consulting with the Minister responsible for finance, may determine.

32. Financial year

The financial year of the Fund shall be the period of twelve months ending on 30th June in each year or on such other date as the Minister may specify by order published in the Gazette:Provided that the first financial year of the Fund may be a period shorter or longer than twelve months as the Minister shall determine, but in any case not longer than eighteen months.

33. Levy

The Board may, from time to time, by order published in the Gazette, impose a levy.

Part VII – Local community participation

34. Purpose of this Part

The purpose of this Part is to provide for local community participation in development and management of irrigation and drainage.

35. Irrigation management agreement

(1)For proper management of irrigation, the Minister may, on the recommendation of the Board, enter into an irrigation management agreement with an irrigation management authority providing for—
(a)a management plan; and
(b)assistance to be provided by the Government.
(2)Subject to performance of unfulfilled obligation under an irrigation management agreement to the right of third party, an irrigation management agreement may be terminated by either party.

36. Minister may make rules

(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 development and management of irrigation and drainage;
(b)facilitate the establishment of irrigation management authorities for the benefit of the local communities;
(c)encourage District Assemblies, non-governmental organizations, the private sector and other relevant institutions to contribute towards provision of irrigation extension services, in accordance with guidelines provided by the Government;
(d)authorize payments of grants or bonus out of public funds for encouragement of irrigation; and
(e)prescribe a mechanism for sharing costs between the Department of Irrigation and irrigation management authorities with regard to development and management of irrigation and drainage.

37. Incentives to farmers

The Minister shall, on the recommendation of the Board and in consultation with the Minister responsible for finance, determine—
(a)such fiscal incentives as may be necessary for the promotion of irrigation farming; and
(b)such measures as may be necessary for preventing the failure or non-viability of irrigation farming.

38. Rectification order

(1)The Minister may, on the recommendation of the Board, issue a rectification order against any person whose acts or omissions have or are likely to have adverse effects on a public watercourse.
(2)A rectification order under subsection (1) shall specify—
(a)the particulars of the person or persons against whom it is made;
(b)the period within which anything required to be done under the rectification order shall be done;
(c)the penalties which may be imposed for non-compliance with the rectification order; and
(d)such other matters as the Minister may, on the recommendation of the Board, consider necessary with respect to rectification measures.
(3)For avoidance of doubt, a rectification order under subsection (1) may be issued against all users of a public watercourse and may also specify how the expenses in respect of rectification measures shall be apportioned amongst the users.

Part IX – Registration of irrigation consultants

[Please note: numbering as in original.]

39. Restriction on engagement of irrigation consultants

(1)After the expiration of six months from the date of coming into operation of this Act, no person shall be engaged as an irrigation consultant unless he is registered under this Act.
(2)Any person who contravenes subsection (1) shall be guilty of an offence.

40. Register

The Board shall keep a Register in which the name of every person, immediately on his being accepted for registration by the Board, shall be registered, showing against his name such particulars as the Board shall from time to time deem necessary, and the Board shall enter into such Register all changes of registration particulars.

41. Qualification for registration as an irrigation consultant

(1)No person shall be registered as an irrigation consultant unless he shall at the date of his application for registration have attained the age of twenty-five years, paid the prescribed registration fee and either—
(a)passed a qualifying examination approved by the Board and have had not less than three years post qualification practical experience in the work of an irrigation consultant; or
(b)satisfied the Board that he possesses a qualification which, in the opinion of the Board, furnishes a sufficient guarantee of the possession of the requisite knowledge and skill for the efficient practice of the work of an irrigation consultant.
(2)Notwithstanding subsection (1), the Board shall not register any person as an irrigation consultant unless it is satisfied that his professional and general conduct has been such as should not, in the opinion of the Board, debar him from registration.

42. Striking out

The Board shall have power to strike out of the Register a name of a registered person who shall have been found guilty of unprofessional conduct as defined in regulations made under section 55.

43. Unauthorized entry, etc., in the Register

Any person who, without the authority of the Board in that behalf, given generally or specially—
(a)makes any material entry in the Register;
(b)alters or changes any entry in the Register in any material particular; or
(c)gives false information to the Board or to any person knowing it to be false or having cause to believe it to be false with a view to securing his registration or the registration of another person, whether or not he or that other person is registered, shall be guilty of an offence.

44. Remuneration not recoverable by unregistered persons

A person who is not registered on the Register shall not be entitled to recover remuneration in respect of irrigation consultancy work done by him.

Part IX – Offences and penalties

[Please note: numbering as in original.]

45. Wilful damage, etc. of canals

(1)Mo person shall wilfully damage irrigation canals drains or associated infrastructure.
(2)No farmer shall fail to maintain irrigation canals, drains and associated infrastructure in his agricultural holding if the holding is within a communal irrigation scheme.
(3)Any person who contravenes subsection (1) or subsection (2) shall be guilty of an offence.

46. Destructive practices

(1)No person shall—
(a)engage in practices which are destructive or potentially destructive to the catchment area of a river or public watercourse supplying water to an irrigation scheme or farm; or
(b)permit livestock to graze, otherwise than as prescribed by the Minister, in dambo areas under irrigation.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K100,000 and to imprisonment for five years.

47. Setting or permitting fire

(1)No person shall—
(a)set or cause to be set on fire crops on an irrigation scheme or farm; or
(b)without reasonable cause, refuse to assist in averting, fighting or extinguishing a fire on an irrigation scheme or farm.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K100,000 and to imprisonment for five years.

48. Encroachment prohibited

(1)No person shall graze livestock or permit livestock to encroach upon any irrigation scheme or farm on which there is a crop which has not been harvested or which has been harvested but not removed.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K100,000 and to imprisonment for five years.

49. Applying prohibited chemicals and substances

(1)The Minister may, by notice published in the Gazette, prohibit the application on an irrigation scheme or farm of any chemical or substance.
(2)Any person who applies or causes to be applied on an irrigation scheme or farm any chemical or substance prohibited under subsection (1) shall be guilty of an offence and liable to a fine of K200,000 and to imprisonment for ten years.

Part X – Miscellaneous provisions

50. Secrecy to be observed

(1)A member, a member of a committee and every person employed under this Act shall not disclose to any person, except in the performance of his duties under this Act or when required to do so by any written law, any information which he may have acquired in the course of his duties in relation to the financial or business affairs of any person, undertaking or business.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K100,000 or to an amount equivalent to the financial gain generated by the offence, if such amount be greater, and to imprisonment for five years.

51. Failure to comply with directives, etc.

Any person who—
(a)contravenes or fails to comply with any provision of this Act or any regulations made hereunder, or any directive or order lawfully given, or any requirement lawfully imposed under this Act or any regulation made hereunder; or
(b)omits or refuses—
(i)to furnish any information when required by the Board to do so; or
(ii)to produce any document when required to do so by a notice sent by the Board; or
(c)knowingly furnishes any false information to the Board, shall be guilty of an offence.

52. General penalty

A person guilty of an offence for which no specific penalty is provided shall be liable to a fine of K60,000 or to an amount equivalent to the financial gain generated by the offence, if such amount be greater, and to imprisonment for three years.

53. Appeals

(1)Any person aggrieved by the decision of the Board may, within thirty days thereof, appeal in writing to the Minister.
(2)Any person aggrieved by the decision of the Minister may, within thirty days thereof, apply to the High Court for judicial review of the decision of the Minister.

54. Keeping of records

(1)The Minister may, on the recommendation of the Board, prescribe activities in respect of which records shall be kept for purposes of this Act and may require any person in possession or control of such records to transmit the records to the Board at such intervals as he may determine.
(2)Any person who—
(a)fails to keep records required under this Act; or
(b)fraudulently or knowingly alters any such records,
shall be guilty of an offence and liable to a fine of K40,000 and to imprisonment for two years.

55. Regulations

(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—
(a)anything required to be prescribed under, or for the purposes of, this Act;
(b)any forms required for the purposes of this Act;
(c)fees payable in respect of any service provided by the Board;
(d)the furnishing of reports to the Minister on irrigation and drainage;
(e)the form of awards and certificates to be awarded by the Board;
(f)the manner of and conditions for recognition by the Government of associations and other bodies engaged in irrigation and drainage;
(g)the procedure to be followed in handing over existing Government smallholder irrigation schemes to local communities;
(h)the management of irrigation schemes;
(i)reports to be made for the purposes of this Act; and
(j)the definition of unprofessional conduct, the mode of inquiry into and the method of dealing with such conduct and the penalties which may be imposed upon a registered person found guilty of such conduct.
(3)Any regulation made under this Act may, notwithstanding the provisions of section 21 (e) of the General Interpretation Act, prescribe a fine of up to K20,000 and imprisonment for up to one year for an offence committed against any provision of such regulation.[Cap. 1:01]

Schedule (Sections 2 and 55)

Existing government smallholder irrigation schemes

Bua Irrigation SchemeChiriko Irrigation SchemeDomasi Irrigation SchemeHara Irrigation SchemeKasinthula Irrigation SchemeKhanda Irrigation SchemeLifuwu Irrigation SchemeLikangala Irrigation SchemeLimphasa Irrigation SchemeLufira Irrigation SchemeMpamantha Irrigation SchemeMuona Irrigation SchemeNjala Irrigation SchemeNkhate Irrigation SchemeSegula Irrigation SchemeWovwe Irrigation Scheme
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History of this document

31 December 2014 this version
Consolidation
31 January 2002
Commenced