Public-Private Partnership Act
This section gives the Act’s short title: it may be cited as the Public-Private Partnership Act.
- Jurisdiction
- Malawi
- Instrument
- Act or statute
- Citation
- Act 27 of 2011
- Version
- 31 Dec 2014
- Language
- en
- Official source
- View official record ↗
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Statute overview
About this statute
This section gives the Act’s short title: it may be cited as the Public-Private Partnership Act. This section defines terms used in the Act, including Commission, Contracting Authority, investor, and public-private partnership. This section states the Act’s objectives for public-private partnerships and divestiture of state-owned enterprises. The Public-Private Partnership Commission is established as a body corporate and has power, subject to the Act, to do the acts a body corporate may lawfully do. The Commission must include a Chairman, four presidential appointees, and specified ex officio members. The President must consider continuity when appointing members, and appointed members must be Malawi citizens resident in Malawi with relevant qualifications and experience.
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Legal text
Provisions of Public-Private Partnership Act
Showing 77 of 77
Part I
Preliminary
- 1 Verify source ↗
Short title
This section gives the Act’s short title: it may be cited as the Public-Private Partnership Act.
1. Short title This Act may be cited as the Public-Private Partnership Act. - 2 Verify source ↗
Interpretation
This section defines terms used in the Act, including Commission, Contracting Authority, investor, and public-private partnership.
2. Interpretation In this Act, unless the context otherwise requires— “ Commission ” means the Public-Private Partnership Commission established under section 4 ; “ bank ” has the meaning ascribed thereto in the Banking Act; [Cap. 44:01] “ Chairman ” means the Chairman of the Commission as specified under section 5 ; “ Chief Executive Officer ” means the head of the Secretariat of the Commission appointed under section 15 ; “ commercialization ” means the re-organization of specified Government departments into commercialized enterprises which shall operate as profit making commercial ventures; “ company ” means a company within the meaning of section 2 of the Companies Act; [Cap. 46:03] “ concessionaire ” means a Partner assigned through a long-term concession contract with a Contracting Authority , the right to invest and maintain an infrastructure project or provide a service to the public, and be compensated through charging of user fees directly to the public; “ consultant ” means any person employed by the Commission to undertake any work of a specialized nature connected with the work of the Commission and includes banks, public accountants, economists, investment banks, doctors, architects, quantity surveyors, engineers, communication experts, lawyers and valuers; “ construction ” includes building, refurbishment, rehabilitation, maintenance, repair, improvement, demolition, extension and replacement; “ Contracting Authority ” means any Ministry, Government Department, Local Authority or state-owned enterprise ; “ direct agreement ” means an agreement entered into between a Contracting Authority and a person who has arranged or provided funding for a Partner for the carrying out of a particular public-private partnership arrangement ; “ divestiture ” means the disposing of the whole or part of the assets and shares of a state-owned enterprise ; “ Divestiture Proceeds Account ” means the account established under section 55 ; “ equity ” means any financial interest resulting from the purchase of shares for consideration; “ established fund ” includes a pension fund, contributory social security scheme, compensation fund and superannuation fund; “ financial institution ” has the meaning ascribed thereto in the Financial Services Act; [Cap. 44:05] “ immediate family member ”, in relation to any person, means that person’s spouse, child, parent, brother, sister, grandchild or grandparent; “ infrastructure facility ” includes an existing asset or an asset to be provided under a public-private partnership arrangement and means physical facilities and systems that directly or indirectly provide services to the public; “ investor ” means an individual, a company , an established fund , a mutual fund , a financial institution or any other institution, entity or commercial venture whether local or foreign, and in any format of enterprise recognized as a legal entity under the laws of Malawi, intending to invest in a state-owned enterprise or in an infrastructure facility under a public-private partnership arrangement , but does not include the Government, a Local Authority or a state-owned enterprise whether foreign or local; “ Local Authority ” means a City, Town, District, or Municipal Council, established under the Local Government Act; [Cap. 22:01] “ market value ” means the market value of a state-owned enterprise at the completion of the sale; “ mutual fund ” means an investment fund which purchases shares in a portfolio of companies and subdivides such portfolio into individual units for sale of such units to investors; “ operation ” includes management and maintenance; “ Partner ” in relation to a public-private partnership arrangement , means a party to the arrangement other than a Contracting Authority ; “ property ” means all property, movable or immovable, and all estates, interests, easements and rights, whether legal or equitable into or out of property, chooses-in-action, money and good-will; “ public investments projects ” includes projects involving public-private partnership arrangements; “ public-private partnership arrangement ” refers to the arrangement provided for in Part V; “ public-private partnership ” means a contract in which a Contracting Authority partners with a Partner to build, expand, improve, or develop infrastructure or service in which the Contracting Authority and private sector partner contribute one or more of know-how, financial support, facilities, logistical support, operational management, investment or other input required for the successful deployment of a product or service, and for which the Contracting Authority and the private sector partner is compensated in accordance with a pre-agreed plan, typically in relation to the risk assumed and the value of the result to be achieved; “ Special Purpose Vehicle ” means a Company incorporated for the purpose of implementing a public-private partnership arrangement including for raising finance for public-private partnership projects as anticipated in section 21 ; “ specified Government department ” means a department specified by the Minister under section 48 ; “ state-owned enterprise ” means a corporation, board, commission, company , parastatal body or similar body, corporate or unincorporate, in which the Government has direct or indirect ownership, equity or interest and includes partnerships, joint ventures or any other form of business arrangement or organization or any commercial entities or commercial assets howsoever held or created in which the Government has direct or indirect interest but does not include a Government department or a Local Authority ; “ stocks ” and “shares” in relation to a state owned enterprise includes loans, stocks, debentures and debenture stock and options on any stocks, shares, loan, debentures or debenture stock and rights; and “ stock broker ” means a person who carries on the business of buying and selling stocks or shares for and on behalf of other persons.
Part II
Objectives of public-private partnerships and divestiture of state-owned enterprises
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Objectives
This section states the Act’s objectives for public-private partnerships and divestiture of state-owned enterprises.
3. Objectives (1) This Act shall facilitate the development and implementation of public-private partnership arrangements for purposes of efficient delivery of infrastructure and services in order to achieve sustainable economic growth and social development including— (a) to improve the delivery of public infrastructure and therefore access to services in Malawi; (b) to assist in achieving better value for procurement of infrastructure and public expenditure by the Government through efficient and optimal risk identification and transfer to the private sector; (c) to leverage on private sector financing, management, technical know-how and technological innovation for delivery of efficient and affordable infrastructure and services; (d) to encourage participation by resource owners in public-private partnerships and provide assurance for private interests in those partnerships; (e) to encourage competitive and efficient markets for the provision of infrastructure and services in Malawi; (f) to minimize the fiscal burden of providing infrastructure development and service delivery through the public treasury and thereby allowing resources to be freed for social services; and (g) to promote private sector contribution towards the attainment of positive social indicators associated with optimal access to infrastructure and services. (2) The objectives of this Act in relation to divestiture of state-owned enterprise shall be— (a) to foster increased efficiency in the economy; (b) to increase competition and reduce monopoly in the economy; (c) to promote participation by the Malawian public in state-owned enterprises; and (d) to raise revenue for the Government through divestiture of state-owned enterprises.
Part III
The Public-Private Partnership Commission
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Establishment of the Commission
The Public-Private Partnership Commission is established as a body corporate and has power, subject to the Act, to do the acts a body corporate may lawfully do.
4. Establishment of the Commission There is hereby established a body to be known as the Public-Private Partnership Commission (in this Act otherwise referred to as the “ Commission ”) which shall be a body corporate with perpetual succession and a common seal capable of suing and being sued in its corporate name, and with power, subject to this Act, to do or perform all such acts and things as a body corporate may by law do or perform. - 5 Verify source ↗
Composition of the Commission
The Commission must include a Chairman, four presidential appointees, and specified ex officio members. The President must consider continuity when appointing members, and appointed members must be Malawi citizens resident in Malawi with relevant qualifications and experience.
5. Composition of the Commission (1) The Commission shall consist of a Chairman and— (a) four other members appointed by the President by notice published in the Gazette , and (b) the following members ex officio — (i) the Secretary to the Treasury; (ii) the Solicitor General and Secretary for Justice; (iii) the Principal Secretary responsible for planning and development; and (iv) the Principal Secretary responsible for industry and trade. (2) In appointing members under subsection (1), the President shall have regard to the need for continuity of service on the Commission , so that at least half of the members appointed thereunder shall be re-appointed for the next term of office. (3) Members of the Commission appointed under subsection (1) shall be persons who— (a) are citizens resident in Malawi; and (b) possess qualifications, expertise and experience in any of the fields of economics, accountancy, law, engineering, project finance, public administration, public-private partnerships, mergers and acquisitions, and business management. - 6 Verify source ↗
Tenure of office and vacancies
A Commission member serves for three years and may be re-appointed. The office becomes vacant on resignation, death, certain absences, qualifying criminal conviction, bankruptcy, or prohibited participation in a PPP or state-owned enterprise interest.
6. Tenure of office and vacancies A member of the Commission shall hold office for a period of three years and shall be eligible for re-appointment, but the office of that member shall become vacant— (a) if the member resigns by giving one month notice, in writing to the President; (b) upon the member’s death; (c) if the member is absent, without the consent in writing of the Chairman , or without valid excuse, from three consecutive meetings of the Commission of which the member has had notice; (d) if the member is convicted of a criminal offence without the option of a fine; (e) if the member becomes an undischarged bankrupt; or (f) if the member participates, directly or indirectly, in a public-private partnership arrangement or acquires shares or other interests in a state-owned enterprise in contravention of this Act. - 7 Verify source ↗
Allowances of members Members of the Commission shall be paid such allowances as the Minister shall determine. 8. Authority and functions of the Commission
Commission members are to be paid allowances set by the Minister.
7. Allowances of members Members of the Commission shall be paid such allowances as the Minister shall determine. - 8 Verify source ↗
Authority and functions of the Commission
The Commission is responsible for public-private partnerships and divestiture of state-owned enterprises, and must report, follow ministerial instructions, and act with due care and good faith.
8. Authority and functions of the Commission (1) The Commission shall facilitate the implementation of public-private partnership arrangements and shall be the sole authority to implement the divestiture of direct and indirect interests in state-owned enterprises. (2) Without derogation from the generality of subsection (1), the Commission shall— (a) facilitate the procurement of private sector investors in public-private partnership arrangements and other form of undertaking relating to public investments projects in Malawi; (b) implement divestitures in direct or indirect Government ownership of, or interest in, any state-owned enterprise; and (c) provide technical support to Contracting Authorities in the identification, initiation and development of public-private partnership arrangements. (3) The functions of the Commission in relation to public-private partnerships shall be— (a) to perform pre-feasibility and viability assessment in conjunction with a Contracting Authority, of a project submitted to it and give its recommendations to the Cabinet through the Minister, as to whether the project— (i) is affordable to the Government, the Contracting Authority and ultimate users; (ii) delivers value for money; and (iii) presents optimum transfer of technical, operational and financial risks to the private party; (b) in conjunction with a Contracting Authority, conduct full legal technical and financial feasibility studies on public-private partnership projects; (c) planning, managing the procurement tender process from receipt of expressions of interest to selection of a preferred Partner and negotiations of the contract with the Partner; (d) appropriate bidding documentation including the draft public-private partnership agreement, confidentiality undertakings, requests for proposal, and ensure that the requests for proposal conforms with the project model approved during the feasibility study stage; (e) to advise the Minister on administrative procedures in relation to public-private partnership projects; (f) to develop best practice guidelines in relation to all aspects of public-private partnerships; (g) to propose to the Minister policy considerations in relation to accelerating bankable public-private partnership projects; (h) to build public-private partnership awareness in the country; (i) generally facilitate the implementation of public-private partnerships in Malawi from project identification to procurement of a Partner; (j) to implement the public-private partnership programme in accordance with the policy guidelines approved by the Cabinet; (k) to advise the Minister responsible for finance of what, in the opinion of the Commission, are the optimal means of financing the cost of public investment projects in order to achieve value for money; (l) to implement public-private partnership arrangements in accordance with this Act and any regulations made hereunder; (m) to provide advice to any Contracting Authority on all aspects of financing, refinancing and insurance of public investment projects to be duly undertaken by means of public-private partnership arrangements; and (n) to monitor progress of the implementation of public-private partnership arrangements in Malawi and report the same to the Cabinet through the Minister, on a regular basis, in any case no less frequently than on a quarterly basis. (4) The functions of the Commission in relation to divestiture of state-owned enterprises shall be— (a) to prepare an annual working plan, annual budget, and a Corporate Strategic Plan; (b) to oversee all aspects of private sector participation in state-owned enterprises and infrastructure; (c) to monitor the impact and progress of the divestiture programme and to prepare the long-term divestiture sequence plan in relation to enterprises designated for divestiture and submit such plan to the Cabinet through the Minister for approval; (d) to report the sale of each state-owned enterprise to the Cabinet, through the Minister, specifying the method of sale used and the reasons why such method was considered appropriate, the proceeds realized and other particulars; (e) to carry out or cause to be carried out an assessment of the market value of the state-owned enterprise that is to be divested; (f) subject to any existing rights, to ensure that the divestiture of each state-owned enterprise is carried out according to the following principles, that is to say, that— (i) each transaction is fully transparent to the public at large; (ii) participation is competitive by making it open to all investors; (iii) the process is fair and efficient; (iv) the transaction is such as to reduce concentration of ownership and marketing; (g) to set pre-qualification criteria for the selection of potential buyers of, or investors in, a state-owned enterprise to be divested, and evaluate offers from them, in accordance with such criteria, with regard to— (i) the ability and commitment of buyers to develop the enterprise; (ii) the track record of buyers and their expertise in the type of enterprise on offer; and (iii) the price; (h) to ensure that monopolies are not created nor maintained in the process of divestiture in relation to consumer markets; but so, however, that concentrated production does not in itself constitute a monopoly for the purposes of this Act; (i) to prepare or cause to be prepared the relevant documentation necessary to effect the divestiture of any state-owned enterprise; (j) to seek potential investors in state-owned enterprises; (k) to maintain records, safeguard information and establish such administrative procedures as shall ensure confidentiality of information; (l) to maintain close liaison with all relevant institutions in the process of divestiture; (m) to publicise activities of the divestiture programme; and (n) to do all such things as are necessary or incidental or conducive to the better carrying out of the functions of the Commission specified in this Act. (5) The Commission shall have all such other powers as are necessary or expedient for the performance of its functions, including the engagement from time to time of consultants and advisers and other service providers. (6) In carrying out its functions, the Commission shall comply with all guidelines and instructions that the Minister may, from time to time, issue to the Commission. (7) In the discharge of its functions, the Commission shall at all times exercise due care, skill, prudence and diligence, and act in the utmost good faith. (8) Any recommendation or report by the Commission to the Cabinet under this Act shall be submitted through the Minister. - 9 Verify source ↗
Provision of advice
The Commission must follow ministerial policy directions and guidance when advising, and Contracting Authorities must seek the Commission’s advice before a public investment project and assess PPP feasibility.
9. Provision of advice (1) In providing advice under this Act, the Commission shall have regard to— (a) such policy directions as the Minister may issue for the purposes of this paragraph to Contracting Authorities from time to time in relation to the financing of public investment projects; and (b) such policy guidance as the Minister may issue for the purposes of this paragraph to Contracting Authorities from time to time in relation to the process, procedures and regulations generally of public-private partnership arrangements. (2) The Minister shall cause a copy of every policy direction and policy guidance issued under subsection (1) to be sent to the Commission . (3) The provision of advice by the Commission under this Act may include, where appropriate, advice as regards the engaging of consultancy services across the range of technical and other relevant expertise necessary to undertake such projects. (4) Subject to any guidelines that the Minister may, from time to time, issue for the purposes of this section and other provisions of this Act in respect of public investment projects, including— (a) the type of projects; (b) the size of the project; (c) the stage of development of the project; and (d) any other relevant factors that shall determine projects of which the Commission ’s advice and involvement shall be sought, a Contracting Authority shall— (a) seek the advice of the Commission as soon as is practicable before undertaking a public investment project; and (b) on the basis of a pre-feasibility assessment, evaluate the feasibility of a public-private partnership approach in implementing the project. - 10 Verify source ↗
Proceedings of the Commission
The Commission may set its own procedure, must meet at least every three months, and has rules for special meetings, quorum, presiding, voting, and no representation by members.
10. Proceedings of the Commission (1) Subject to the other provisions of this Act, the Commission may regulate its own procedure. (2) The Commission 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) A special meeting of the Commission may be called by the Chairman upon written notice of not less than seven days received from any member of the Commission 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, a special meeting may be called upon giving a shorter notice. (4) Half of the members of the Commission shall form the quorum of any meeting of the Commission . (5) There shall preside at any meeting of the Commission — (a) the Chairman ; (b) in the absence of the Chairman such member as the Chairman may designate or such member as the members present and forming a quorum may elect from among their number for the purpose of that meeting. (6) The decision of the Commission on any matter before any meeting shall be that of the majority of the members present and voting at the meeting and, in the event of an equality of votes, the person presiding shall have a casting vote in addition to that person’s deliberative vote. (7) No member of the Commission shall attend to the business of the member’s office by representation, and where a member is unable to attend any meeting of the Commission , the member may request that the member’s apologies for failure to attend be recorded. - 11 Verify source ↗
Committees of the Commission
The Commission may create committees, delegate functions to them, appoint committee members, and committees may set their own procedure subject to the Commission’s directions.
11. Committees of the Commission (1) The Commission may, for the purpose of performing its functions under this Act, establish committees and delegate to any such committee such of its functions as it considers necessary, and the Commission may appoint as members of a committee established under this subsection persons who are or are not members of the Commission and such persons shall hold office for such period as the Commission may determine. (2) Subject to any special or general directions of the Commission , any committee established under this section may regulate its own procedure. - 12 Verify source ↗
Minutes of meetings
The Commission must keep minutes of the proceedings of every Commission meeting and every committee meeting.
12. Minutes of meetings The Commission shall cause minutes to be kept of the proceedings of every meeting of the Commission and of every meeting of a committee of the Commission . - 13 Verify source ↗
Disclosure of interest
A member at a Commission or committee meeting must disclose any relevant interest as soon as practicable after the meeting starts, and must not take part in discussion or voting on the matter unless the Commission or committee directs otherwise.
13. Disclosure of interest If any member is present at a meeting of the Commission or of any committee of the Commission at which any matter which is the subject of consideration is a matter in which that person or that person’s immediate family member , or that person’s professional or business partner is directly or indirectly interested in a private or professional capacity, the person shall, as soon as is practicable after the commencement of the meeting, disclose such interest and, unless the Commission 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. - 14 Verify source ↗
Co-opted persons
The Commission may invite any person, and the Minister may nominate a public service officer, to attend meetings and take part in deliberations, but they cannot vote.
14. Co-opted persons (1) The Commission may in its discretion at any time and for any period invite any person, and the Minister may in like manner nominate any officer in the public service, to attend any meeting of the Commission 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 13 shall apply, mutatis mutandis , to a person or an officer attending a meeting of the Commission pursuant to subsection (1).
Part IV
Secretariat
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Secretariat of the Commission
The Secretariat of the Commission is made up of the Chief Executive Officer and other employees appointed under this Part.
15. Secretariat of the Commission The Secretariat of the Commission shall consist of the Chief Executive Officer and other employees of the Commission appointed under this Part. - 16 Verify source ↗
Chief Executive Officer of the Commission
The Commission must appoint a Chief Executive Officer with the Minister’s approval, and the Chief Executive Officer must carry out assigned duties and help administer the Act.
16. Chief Executive Officer of the Commission (1) The Commission shall appoint, on such terms and conditions as it may determine with the approval of the Minister, a Chief Executive Officer . (2) The Chief Executive Officer shall perform such duties as the Commission shall assign to that office and ensure the effective administration and implementation of the provision of this Act. (3) Without derogation from the generality of the responsibilities and duties of the Chief Executive Officer conferred under subsection (2), the duties of the Chief Executive Officer shall include the following— (a) to formulate and submit to the Commission proposals and recommendations including programme strategies, selection criteria and annual targets for— (i) public-private partnership arrangements; (ii) financing of public-private partnership projects; and (iii) divestiture and reform of state-owned enterprises; (b) to prepare and update a database of state-owned enterprises that are subject to divestiture ; (c) to establish operational guidelines and transparent procedures and carry out studies for implementation of— (i) public-private partnership arrangements: (ii) financing of public-private partnership projects; and (iii) the divestiture and reform of state-owned enterprises; (d) to ensure that the functions of the Commission are being performed effectively; (e) to prepare for approval by the Commission , the strategic objectives and targets to be met by the Commission ; and (f) any other function and duties as the Commission may assign to him from time to time for the purposes of the implementation of the Act. (4) The Chief Executive Officer or, in the Chief Executive Officer ’s absence, such other officer of the Commission as the Chief Executive Officer may designate, shall attend meetings of the Commission and may address such meetings, but shall not vote on any matter: Provided that the person presiding at any meeting of the Commission may, for good cause, require the Chief Executive Officer or such other officer to withdraw from such meeting. (5) Section 13 shall apply, mutatis mutandis , to the Chief Executive Officer and to such other officer referred to in this section. - 17 Verify source ↗
Other employees
The Commission may delegate to the Chief Executive Officer the employment of additional staff, under terms and conditions the Commission तयines.
17. Other employees The Commission may delegate to the Chief Executive Officer the employment, on such terms and conditions as the Commission may determine, such other employees, subordinate to the Chief Executive Officer , as the Commission considers necessary for the performance of the Chief Executive Officer ’s functions and to assist the Chief Executive Officer in the discharge of the Chief Executive Officer ’s duties and responsibilities. - 18 Verify source ↗
Disclosure of interest by employees, etc
Employees and consultants of the Commission must disclose any direct or indirect interest, including a spouse’s interest, in matters linked to the divestiture programme or a public-private partnership arrangement.
18. Disclosure of interest by employees, etc. (1) An employee of the Commission or a consultant to the Commission who, or whose spouse, is directly or indirectly interested in a private or professional or official capacity in any matter relating to the divestiture programme or public-private partnership arrangement shall be required to disclose such interest. (2) A disclosure of interest made under this section shall be made to the Chief Executive Officer who shall take such decision as the Chief Executive Officer considers appropriate in each case and submit a report thereon to the Commission . - 19 Verify source ↗
Oath of secrecy
Specified Commission personnel must take an oath of secrecy approved by the Commission or otherwise prescribed under the Act.
19. Oath of secrecy Every— (a) member of the Commission ; (b) member of a committee of the Commission ; (c) employee of the Commission ; (d) consultant in the service of the Commission , shall take such oath of secrecy as may be approved by the Commission or as may otherwise be prescribed under this Act. - 20 Verify source ↗
Prohibition of publication or disclosure of information by unauthorized persons
A person must not publish or disclose protected information learned in the course of duties under the Act unless the Commission gives written consent.
20. 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 Commission , publish or disclose to any person, otherwise than in the course of the person’s duties, the contents of any document, communication or information which relates to, and which has come to the person’s knowledge in the course of the person’s duties under this Act. (2) Any person who knowingly contravenes the provision of subsection (1) commits an offence.
Part V
Public-private partnership arrangements
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Special Purpose Vehicle or Joint Venture
A PPP arrangement may use a special purpose vehicle or a joint venture, and the SPV shareholders must be the Minister responsible for Finance and the private partner.
21. Special Purpose Vehicle or Joint Venture (1) The public-private partnership arrangement may be implemented through a Special Purpose Vehicle incorporated under the Companies Act specifically for this purpose or it may be through a Joint Venture agreement between the Contracting Authority and the private Partner: Provided that the Joint Venture provisions may be incorporated into the public-private partnership agreement. (2) The Shareholders of the Special Purpose Vehicle shall be the Minister responsible for Finance and the private Partner and the two must enter into a Shareholders agreement the terms of which must be as prescribed by the Minister. - 22 Verify source ↗
Public-private partnership agreement
A Contracting Authority may, if authorized by the Minister and subject to the Act, enter into a public-private partnership agreement with a Partner.
22. Public-private partnership agreement (1) Notwithstanding any other enactment but subject to this Act, a Contracting Authority, if authorized by the Minister, may enter into an agreement with a Partner for the performance of one or more of the functions of that Contracting Authority. (2) Every Agreement shall— (a) identify the responsibilities of the Contracting Authority and the Partner; (b) specify the relevant financial terms; (c) ensure the management of performance of the Partner; (d) provide for the return of assets, if any and where applicable, to the Contracting Authority, at the termination or expiry of the agreement, in such manner as may be provided for in the Agreement; (e) provide for the optimal sharing of risks between the Contracting Authority and the Partner; (f) provide for the payment to the Partner by way of compensation from revenue or charges or fees collected by the Partner from users or customers of a service provided by it; (g) provide for its duration; and (h) contain such other information as may be prescribed. (3) Every agreement shall be governed by and construed in accordance with the Laws of Malawi. (4) Every agreement shall provide for disputes between the Partner and the Contracting Authority to be settled by exhausting alternative dispute resolutions mechanisms such as mediation, failing which matters will go for arbitration, according to the rules defined in the Agreement. - 23 Verify source ↗
Functions of a Contracting Authority
The Commission and a Contracting Authority may carry out PPP-related project work, studies, approvals, transfers, and payments, and the Contracting Authority must manage PPP risk allocation and follow fairness, transparency, and accountability principles.
23. Functions of a Contracting Authority (1) Without prejudice to the functions of a Contracting Authority under any written law, the Commission or a Contracting Authority, with the support of the Commission, may, either itself or in conjunction with any other person or another Contracting Authority— (a) identify, appraise, develop and monitor a project to be implemented under this Act; (b) undertake or cause to be undertaken a feasibility study where it considers that a project may be implemented under a public-private partnership agreement; (c) submit the feasibility study to the Minister responsible for Finance through the Commission for its approval; (d) enter into a public-private partnership arrangement with a Partner, subject to the approval of the Minister responsible for finance and the Minister, for the performance of functions of the Contracting Authority specified in the arrangement in relation to— (i) the design and construction of an infrastructure facility, together with the operation of services relating to it and the provision of finance, if required, for such design, construction and operation; and (ii) the provision of services relating to an infrastructure facility and the provision of finance, if required, for such service; (e) subject to subsection (4), arrange or provide for a payment to a Partner; (f) transfer an interest, or part of an interest, of the Contracting Authority in an infrastructure facility or part of an infrastructure facility, to the Partner, or, subject to the prior consent of the appropriate Minister or, if the Contracting Authority is a ministry, subject to the consent of the Minister, to a nominee of the Partner by transfer, assignment, conveyance, grant of lease or licence or otherwise; and (g) take a transfer of an interest of the Partner or a nominee of the Partner, in an infrastructure facility or part of an infrastructure facility, by transfer, assignment, conveyance, grant or surrender of lease or licence or otherwise. (2) Subject to subsections (3) and (4), the Contracting Authority may, whether or not for consideration, transfer, convey or assign its interest in any real or person property, including leasehold owned or held by such Contracting Authority to a company formed under section 21 for the purpose of enabling such a company to carry out its financing functions in connexion with public investment projects. (3) A Contracting Authority shall not convey, assign or transfer any property under subsection (2) to any such company unless the consent of the Minister and the appropriate Minister has been obtained. (4) A Contracting Authority may, with the approval of the Minister, attach such terms and conditions as it considers appropriate to any transfer, conveyance or assignment pursuant to subsection (1). (5) A public-private partnership arrangement may include terms and conditions in relation to the performance by the Partner concerned of the Partner’s obligations under the arrangement as agreed by the Contracting Authority. (6) (a) Where a payment is arranged or provided for pursuant to section 21 , the Minister responsible for finance may, at any time until entry into the public-private partnership arrangement by the Contracting Authority, give directions to the appropriate Minister in relation to the aggregate value of the moneys committed to such arrangements, as the Minister considers necessary; and (b) the appropriate Minister shall, in performing his functions, have regard to any directions given by the Minister responsible for finance under this section. (7) Functions conferred on a Contracting Authority by this section shall be in addition to, and not in substitution for, any other functions of the Contracting Authority. (8) The public-private partnership arrangements undertaken pursuant to the provisions of this Act shall be carried out based on the principles of fairness, transparency and accountability. (9) The Contracting Authority shall ensure that risks and associated benefits of the public-private partnership arrangements are allocated to parties that are best placed to manage them. - 24 Verify source ↗
Additional powers
A PPP arrangement can give the Partner the Contracting Authority’s specified functions, and the Partner may perform them in its own name under the Authority’s control.
24. Additional powers (1) A public-private partnership arrangement shall, whilst it is in force, operate to confer on the Partner concerned, the functions of the Contracting Authority specified in the arrangement, subject to any terms and conditions so specified. (2) A function conferred on a Partner by a public-private partnership arrangement— (a) may be performed by the Partner in the Partner’s own name, subject to the general superintendence and control of the Contracting Authority concerned; and (b) shall, notwithstanding such arrangement, continue to be vested in the Contracting Authority concerned concurrently with the Partner and may be performed by either or both of them. (3) The conferral of a function of a Minister on a Partner by a public-private partnership arrangement shall not affect the Minister’s responsibility to Parliament or as a member of the Government for the performance of the function. (4) In this section, “functions”, in relation to a Contracting Authority, includes functions of any other Contracting Authority to be performed by it pursuant to an agreement or arrangement duly made by it with that other Authority. - 25 Verify source ↗
Types of infrastructure facilities and services
A Contracting Authority may enter into public-private partnership arrangements if authorized by the Cabinet, and the Commission may use listed private-sector involvement modes.
25. Types of infrastructure facilities and services (1) A Contracting Authority, where authorized by the Cabinet, may enter into a public-private partnership arrangements for the delivery of infrastructure and services within the scope of Government’s key priority areas aimed at achieving sustainable economic growth and social development. (2) Without derogating from the generality of subsection (1), the key priority areas include— (a) agriculture and food security; (b) energy, industrial development, mining and tourism; (c) transport infrastructure and inland ports; (d) education, science and technology; (e) public health, sanitation, malaria and HIV/AIDS management; (f) integrated rural development; (g) greenbelt irrigation and water development; (h) child development, youth development and empowerment; (i) climate change, natural resources and environmental management; and (j) any other type of infrastructure and services as the Minister may, from time to time, designate by notice published in the Gazette . (2) In the implementation of public-private partnership arrangements listed in subsection (1), the Commission may use any or a combination of the following modes of private sector involvement— (a) Build Own Operate Transfer; (b) Build Own Transfer; (c) Build Own Operate; (d) Design Finance Refurbish Operate Transfer; (e) Design Finance Build Operate Transfer; (f) Concession or Leases; and (g) any other mode as the Commission shall determine. [Please note: numbering as in original.]
Part VI
Procedures for awarding contracts
- 26 Verify source ↗
Feasibility study for public-private partnership
A Contracting Authority must have a feasibility study done when it considers a project may be implemented under an agreement.
26. Feasibility study for public-private partnership (1) Every Contracting Authority shall, through the Commission or by itself if authorized by the Commission undertake or cause to be undertaken a feasibility study where it considers that a project may be implemented under an agreement to assess whether the proposed project is feasible as a public-private partnership project. (2) The feasibility study shall— (a) demonstrate comparative advantage in terms of strategic and operational benefits for implementation under a public-private partnership agreement; (b) describe in specific terms— (i) the nature of the Contracting Authority’s functions, the specific functions to be considered in relation to the project, and the expected inputs and deliverables; (ii) the extent to which those functions can lawfully and effectively be performed by a Partner in terms of an agreement; and (iii) the most appropriate form by which the Contracting Authority may implement the project under an agreement; (c) demonstrate that the agreement shall— (i) be affordable to the Contracting Authority; (ii) deliver value for money; and (iii) transfer appropriate technical, operational or financial risk to the Partner; and (d) explain the capacity of the Contracting Authority to effectively enforce the agreement, including the ability to monitor and regulate project implementation and the performance of the Partner in terms of the agreement. - 27 Verify source ↗
Pre-selection of bidders
The Commission may pre-qualify bidders, may delegate that power to the Contracting Authority if it has the needed expertise, and must prepare the request for proposal and treat bidders fairly.
27. Pre-selection of bidders (1) The Commission shall consider carrying out a pre-qualification exercise to select potential bidders or may delegate its powers under this subsection to the Contracting Authority where the Commission considers that the Contracting Authority has the necessary expertise to undertake the pre-qualification exercise. (2) The invitation to bidders to submit bids shall be done through the request for proposal document which shall be prepared by the Commission and shall include a public invitation for bidders to submit bids. (3) In the exercise of its powers under this section the Commission shall strive for the highest standard of equity by ensuring that all bidders are afforded equal opportunity and are treated fairly. - 28 Verify source ↗
Evaluation Criteria
The request for proposals must state the evaluation criteria, and the Commission must evaluate the bids.
28. Evaluation Criteria (1) The request for proposals shall clearly set out the evaluation criteria which shall form the basis for selection of a preferred bidder. (2) Bids shall be evaluated by the Commission. - 29 Verify source ↗
Contract award for public-private partnership
The Commission must act on a PPP contract approval process, and a Contracting Authority may need to submit the final draft and supporting materials when delegated.
29. Contract award for public-private partnership (1) The public-private partnership contract may be concluded solely on the basis of a decision by the Commission having secured clearance from the Minister responsible for finance and the consent obtained from the Minister to the final draft contract. (2) Where the Commission has delegated its function to the Contracting Authority, the Contracting Authority shall submit to the Commission for approval the final draft of the public-private partnership contract, including all the annexes thereto, evaluation reports prior to reaching a decision on the selection of a Partner. (3) Within thirty days from the date of receipt of the final draft contract referred to in subsection (1) the Commission shall reach the decision on the granting of consent to the text of the draft contract. (4) The Commission shall issue the decision referred to in subsection (2) on the basis of the assessment of compliance of the draft contract with the tender documents and the provisions of this Act and the Regulations made thereunder. (5) Any amendments to a concluded public-private partnership contract, whereby the rights and obligations of the parties to the contract are being modified, shall be made according to a procedure that is in line with the provisions of this Act. - 30 Verify source ↗
Register of public-private partnership contracts
The Contracting Authority must submit the concluded public-private partnership contract, with all annexes and any changes, to the Commission within the period set by the Minister. The contract and its annexes and changes must also be entered in the Register kept by the Commission.
30. Register of public-private partnership contracts (1) The Contracting Authority shall submit to the Commission the concluded public-private partnership contract with all annexes, including changes to the contract and annexes thereto in the period that the Minister shall set. (2) The concluded public-private partnership contract with all annexes thereto which are its integral part, and all changes to the contract and annexes thereto, shall be entered in the Register which is kept by the Commission. - 31 Verify source ↗
Unsolicited bids
Unsolicited PPP bids must be sent to the Commission, not answered by the Contracting Authority, and then reviewed for acceptance.
31. Unsolicited bids (1) Any unsolicited bid or expression of interest for a public-private partnership by a prospective private Partner to a Contracting Authority shall be referred to the Commission and shall not be responded to by the Contracting Authority. (2) Once the Commission receives the unsolicited bid or expression of interest, it shall consult with the relevant Contracting Authority for a preliminary assessment whether the public-private partnership of the type proposed is acceptable or not. (3) If the assessment and consultation in subsection (2) determines that the public-private partnership type is acceptable, the Commission shall seek the approval of the Cabinet to conduct a feasibility study, and the unsolicited bidder shall be informed that bidders including the unsolicited bidder shall be invited to bid for the public-private partnership in accordance with the procedure laid down in this Act. (4) If however the assessment and consultation in subsection (2) above determines that the public-private partnership being proposed is unacceptable the Commission shall advise the unsolicited bidder accordingly.
Part VII
Divestiture and commercialization
- 32 Verify source ↗
Divestiture of state-owned enterprises
A state-owned enterprise must be divested under the divestiture sequence plan, unless the Cabinet determines otherwise through the Minister.
32. Divestiture of state-owned enterprises A state-owned enterprise shall be divested in accordance with the divestiture sequence plan or as the Cabinet may otherwise determine through the Minister. - 33 Verify source ↗
Section 33
In a sale of a state-owned enterprise, the parties may agree that the Minister for Finance can keep or later acquire a share, and that share gives the Government special rights to intervene in the enterprise’s operations in the national interest.
33. Special rights of the Government In any agreement for the sale of a state-owned enterprise, the parties may agree that the Minister responsible for Finance may retain, or at any time after the date of the agreement acquire, a share in the divested enterprise, which share shall confer special rights to enable the Government in the national interest to intervene in the operations of the enterprise where such intervention is necessitated by the specific actions or undertakings of the enterprise. - 34 Verify source ↗
Allotment of shares
The Commission must allot the shares of a state-owned enterprise.
34. Allotment of shares The shares of a state-owned enterprise shall be allotted by the Commission. - 35 Verify source ↗
Obligations of Shareholders
If the Commission asks, shareholders in a state-owned enterprise must provide the information the Commission reasonably requires, unless a written law prohibits or restricts providing it.
35. Obligations of Shareholders The shareholders in any state-owned enterprise, when so requested by the Commission, shall provide to the Commission such information as the Commission may reasonably require, subject to any prohibition or restrictions contained in any written law on the provision of such information. - 36 Verify source ↗
Obligations of state-owned enterprises
A state-owned enterprise being divested and with no private ownership must follow Commission recommendations, keep records, prepare and audit accounts, maintain asset registers, avoid dissipating assets, and give information to the Commission when requested. It must not start new capital investment programmes unless approved and supported by a project appraisal report.
36. Obligations of state-owned enterprises (1) A state-owned enterprise scheduled for divestiture, and in which there is no private ownership, shall— (a) carry out any recommendations, made by the Commission, for preparing the enterprise for divestiture; (b) keep up to-date all business records and books of accounts; (c) make available to the Commission its manpower development, investment or financing plan if any has been developed; (d) prepare the accounts and a financial statement of the enterprise for every financial year and cause them to be audited not later than four months after each financial year; (e) maintain a register of its fixed assets, which register shall be reconciled with the financial statement; (f) not perform any action that would result in the assets of the company being dissipated; (g) not undertake any new capital investment programmes, unless a project appraisal report approved by the Commission, is prepared showing that— (i) routine plant, equipment and vehicle renewal is required; (ii) rehabilitation expenditure is essential to keep the operations of the state-owned enterprise running or to improve the marketability of the enterprise; (iii) the new capital investment has a pay back period of less than two years; (iv) the new capital investment will contribute to the promotion of export or import substitution; and (v) the state-owned enterprise demonstrates that the new capital investment will not result in deterioration of its operations; (h) as far as possible, establish and document all contractual, legal and other obligations; (i) not give any person information which might give undue advantage to that person or to any potential investor; and (j) if so requested by the Commission, disclose all of any information whatever about the enterprise. (2) Any person who knowingly contravenes the provisions of subsection (1) commits an offence. - 37 Verify source ↗
Modes of divestiture
The Commission may choose among several divestiture methods and must ensure each state-owned enterprise is sold at market value, unless regulations under the Act provide otherwise.
37. Modes of divestiture (1) The Commission may employ the following modes of divestiture— (a) public offering of shares; (b) private sale of shares through negotiated or competitive bids; (c) offer for sale of additional shares in a state-owned enterprise to reduce Government share holding; (d) sale of the assets and business of the state-owned enterprise; (e) re-organization of the state-owned enterprise before the sale of the whole or any part of the enterprise; (f) buy outs of a state-owned enterprise by management or employees in that enterprise; and (g) any other method the Commission may consider appropriate. (2) Save as may otherwise be provided in regulations made under this Act, the Commission shall ensure that each state-owned enterprise is sold at its market value. - 38 Verify source ↗
Valuation of state-owned enterprises
Independent valuers must value state-owned enterprises and issue a certificate of valuation or an opinion of value.
38. Valuation of state-owned enterprises The valuation of state-owned enterprises shall be performed by independent valuers who shall issue a certificate of valuation or an opinion of the value. - 39 Verify source ↗
Eligible shares to members
Shares in a state-owned enterprise may be sold to anyone, including non-citizens of Malawi.
39. Eligible shares to members The shares in a state-owned enterprise shall be liable to be sold to any person whether or not such person is a citizen of Malawi. That notwithstanding, the Commission will make every effort to encourage Malawian participation in state-owned enterprise through various schemes approved by the Minister. - 40 Verify source ↗
Sales of shares to members of Cabinet, etc
Certain Cabinet and Commission-related persons must not buy shares or assets in a state-owned enterprise, unless the sale is by public offer of shares.
40. Sales of shares to members of Cabinet, etc. No member of the Cabinet or of the Commission or of a committee of the Commission and no employee of the Commission or consultant to the Commission or the spouse, child, mother, father, brother, sister or a professional or business partner or immediate family member thereof shall purchase shares or assets in a state-owned enterprise, unless the sale is by public offer of shares. - 41 Verify source ↗
Established funds
An established fund may buy shares in a state-owned enterprise for the contributors.
41. Established funds An established fund may purchase shares in a state-owned enterprise on behalf of the contributors. - 42 Verify source ↗
Purchase of shares by citizens of Malawi
If the purchasers are citizens of Malawi, shares may be sold at a discount, and any discounted shares must not be disposed of for two years after purchase.
42. Purchase of shares by citizens of Malawi Where the purchasers are citizens of Malawi, shares may be offered at a discount which shall be in accordance with prescribed guidelines, and it shall be a condition of every sale of shares at a discount that the shares so purchased shall not be disposed of within two years of the date of purchase. - 43 Verify source ↗
Shares not to be sold on credit
Shares of a state-owned enterprise may not be sold on credit unless regulations made under the Act allow it.
43. Shares not to be sold on credit The shares of a state-owned enterprise shall not be sold on credit, unless otherwise prescribed by regulations made under this Act. - 44 Verify source ↗
Negotiations of sale
The Commission must appoint a competent negotiating team for each sale, and appointed team members must meet qualification, secrecy, and disclosure requirements.
44. Negotiations of sale (1) The Commission shall appoint a competent negotiating team for each sale to act on behalf of the Commission. (2) A person appointed on the negotiating team shall— (a) have proper professional qualifications and experience and shall not be a person held in bad business standing; (b) take an oath of secrecy as approved by the Commission or as may be prescribed; and (c) disclose any personal or professional interest the person may have, whether direct or indirect, before accepting the appointment. - 45 Verify source ↗
Conversion of private companies to public companies
The Commission may convert a qualifying state-owned enterprise into a private or public company.
45. Conversion of private companies to public companies The Commission may convert a state-owned enterprise scheduled for divestiture, which is not a company, into a private or public company in accordance with the provisions of the Companies Act. [Cap 46:03] - 46 Verify source ↗
Liquidation Liquidation
The Commission may liquidate a state-owned enterprise under the Companies Act.
46. Liquidation Liquidation The Commission may liquidate a state-owned enterprise in accordance with the provisions of the Companies Act. [Cap. 46:03] - 47 Verify source ↗
Completion of sales
Final sale agreements and related transfers must be signed by the specified party, and share transfers must follow the Companies Act.
47. Completion of sales (1) The final sales agreement to transfer shares in a state-owned enterprise to the successful bidder shall be signed by— (a) the Minister responsible for finance or the Commission, where the shares sold were directly owned by the Government; or (b) the respective shareholder, where the shares sold were not directly owned by the Government. (2) The transfer of shares shall be in accordance with the provisions of the Companies Act. [Cap. 46:03] (3) The final sale or transfer of assets-owned by a state-owned enterprise to the successful bidder shall be signed by the Commission on behalf of the state owned enterprise. - 48 Verify source ↗
Commercialization of specified Government departments
The Minister may designate a government department for commercialization, the designated department must be incorporated under the Companies Act, and it may set rates and borrow only with Finance Minister approval.
48. Commercialization of specified Government departments (1) The Minister, in consultation with the Minister responsible for the Government department to be commercialized, may specify, by notice in the Gazette , any Government department for purposes of commercialization under this Act. (2) A specified Government department shall be incorporated under the Companies Act. [Cap. 46:03] (3) A Government department specified under this section may, subject to the approval of the Minister responsible for Finance— (a) fix its own rates, prices and charges for goods and services provided; (b) capitalize assets; and (c) borrow debenture stocks.
Part VIII
Publications, information and reports
- 49 Verify source ↗
Publication and records of certain information
The Commission must publish the names of state-owned enterprises approved for divestiture and keep records about the process. Anyone claiming an interest in a divested state-owned enterprise must file a written claim within 60 days of the notice, or lose that interest.
49. Publication and records of certain information (1) The Commission shall publish by notice in the Gazette and in at least two newspapers in general circulation in Malawi, or in any media, the names of the state-owned enterprises approved to be divested. (2) The Commission shall keep and maintain proper records of— (a) the names of the state-owned enterprises approved to be divested as published under subsection (1); (b) public-private partnership arrangement transactions that have been undertaken; (c) the registered consultants dealing with the divestiture process; (d) the bidders and bid prices; (e) the successful bidders and the reason for selecting such bidders; (f) the cost of transactions and any other special conditions of the public-private partnership arrangement; (g) the price of shares and any other special conditions of the sale of shares; and (h) any other matters as the Commission may deem appropriate. (3) Any person having or claiming to have an interest in a state-owned enterprise to be divested shall make a claim in writing to the Commission within a period of sixty days after the notice referred to in subsection (1) is published, and if the person fails to do so, the person shall be deemed to have relinquished all interests in the state-owned enterprise. (4) The Commission may not be sued in relation to actions or debts incurred by state-owned enterprises. (5) The Government shall be responsible for the debts and actions of state-owned enterprises. - 50 Verify source ↗
Unauthorized persons not to publish or disclose information
Unauthorized persons must not disclose confidential information obtained while doing duties under the Act, unless authorized by the Commission.
50. Unauthorized persons not to publish or disclose information (1) Save as otherwise provided by law, a person shall not disclose confidential information obtained by that person while performing, or as a result of having performed, duties under this Act as— (a) a member of the Commission; (b) an employee of the Commission; or (c) a consultant or an adviser to the Commission, or an employee of such person whilst performing duties relating to such advice or consultation, or obtained while in performance of a service contract, unless such person is duly authorized by the Commission to do so. (2) A person who contravenes subsection (1) commits an offence and shall be liable, on conviction, to a fine of K500,000 and to imprisonment for two years. (3) Nothing in subsection (1) shall prevent disclosure of information to the Commission, the Chief Executive Officer or the Minister. - 51 Verify source ↗
Annual reports
The Commission must send an annual report to the Minister within six months after each financial year, and the Minister must table it in the National Assembly at the next meeting after receiving it.
51. Annual reports (1) As soon as practicable, but not later than six months after the expiry of each financial year, the Commission shall submit to the Minister, a report concerning its activities with respect to public-private partnership arrangements or divestiture of state-owned enterprises during that financial year. (2) The report referred to in subsection (1) shall be in such form as the Minister shall approve and shall include information on the financial affairs of the Commission, and there shall be appended to the report— (a) an audited balance sheet; (b) an audited statement of income and expenditure; and (c) such other information as the Commission may consider appropriate or as the Minister may direct. (3) The Minister shall, during the meeting of the National Assembly next following receipt by the Minister of the report referred to in subsection (1), lay the report before the National Assembly. - 52 Verify source ↗
Public-private partnership arrangements report
The Commission may publish an annual public report on public-private partnership arrangements.
52. Public-private partnership arrangements report The Commission may annually publish a report of public-private partnership arrangements to the public. - 53 Verify source ↗
Progress reports
The Commission must prepare a progress report every six months and publish it for sale to the public.
53. Progress reports The Commission shall, every six months, at the end of June and at the end of December, produce a report on its activities during that period, giving details of bids received and selected and other particulars and shall publish the report for sale to the public.
Part IX
Financial provisions
- 54 Verify source ↗
Use of proceeds
Some proceeds from sales of state-owned enterprises must be paid into the Divestiture Proceeds Account, and those funds may be used only with the Minister responsible for Finance’s prior approval.
54. Use of proceeds (1) Such amount of the proceeds of every sale of state-owned enterprises as the Minister shall determine with the advice of the Commission shall be paid into a fund to be known as the Divestiture proceeds Account to be established by the Minister responsible for Finance and to be held at the Reserve Bank of Malawi or at such other bank or place as that Minister, on the advice of the Commission, may direct. (2) With the prior approval of the Minister responsible for Finance, the funds held on the Divestiture Proceeds Account may be used for— (a) funding the Commission; (b) funding the cost of divestiture under this Act; (c) funding the cost of public-private partnership development; (d) funding the restructuring of public enterprise to be divested or commercialized; (e) supporting payments for retrenchment, redundancy or other form of lay-off resulting from divestiture processes under this Act; (f) funding of any project within the Government development plans. - 55 Verify source ↗
Funds of the Commission
The Commission’s funds come from appropriations, grants or donations, approved retention from certain sales, fees it charges, sales of its annual progress reports, and other money that accrues to it.
55. Funds of the Commission (1) The funds of the Commission shall consist of such moneys as may— (a) be appropriated by Parliament for the purposes of the Commission; (b) be paid to the Commission by way of grants or donations or otherwise received by the Commission; (c) be retained by the Commission out of the proceeds of sales of state-owned enterprises as may be approved by the Minister responsible for Finance; (d) be received by the Commission under subsection (2); (e) constitute proceeds of the sales of the annual progress reports of the Commission; and (f) otherwise vest in or accrue to the Commission. (2) The Commission may charge and collect fees in respect of programmes, publications, seminars, documents, consultancy services and other services provided by the Commission. (3) The Commission may invest in such manner as it thinks fit such of its funds as it does not immediately require for the performance of its functions. - 56 Verify source ↗
Funds for public-private partnership development
The Commission may accept grants or donations, borrow money with approvals, charge fees for its services, and invest unused funds.
56. Funds for public-private partnership development (1) The Commission may— (a) accept money by way of grants or donations from any source in or outside Malawi: Provided that such source and their principals, immediate family members, related entities, representatives or affiliated parties of any type, have not participated directly or indirectly in any public-private partnership arrangement or divestiture of state-owned enterprise in Malawi. (b) subject to the approval of the Minister and the Minister responsible for Finance, raise, by way of loans from any source in or outside Malawi, such money as it may require for the discharge of its functions: Provided that such source shall comply with the restraints in paragraph (a) above; and (c) charge and collect fees in respect of programmes, facilitating public-private partnership arrangements, publications, seminars, documents, consultancy services and other services provided by the Commission. (2) The Commission may invest in such manner as it thinks fit such of its funds as it does not immediately require for the performance of its functions. - 57 Verify source ↗
Raising resources for public-private partnership arrangements
The Commission may raise money for public-private partnership arrangements, but only subject to Minister-issued guidelines and a cap set by the Minister.
57. Raising resources for public-private partnership arrangements (1) Subject to subsection (2) and to such guidelines as the Minister may issue, the Commission may from time to time raise money for purposes of public-private partnership arrangements. (2) The combined net aggregate of the principal of all moneys raised and outstanding by the Commission and any companies formed under section 8 shall not exceed such total sum as the Minister may, from time to time, set and publish by notice in the Gazette . - 58 Verify source ↗
Minister may make available moneys from the Consolidated Fund
The Minister responsible for finance may provide money from the Consolidated Fund to the Commission or a company formed under section 8, subject to the Public Finance Management Act.
58. Minister may make available moneys from the Consolidated Fund Subject to the provisions of the Public Finance Management Act, the Minister responsible for finance may make available moneys from the Consolidated Fund to the Commission or a company formed under section 8 on such terms and conditions as the Minister may determine. [Cap. 37:02] - 59 Verify source ↗
Section 59
The Commission or the Contracting Authority must, where possible, prepare a cost statement for a public-private partnership arrangement.
59. Commission or Contracting Authority to keep record of costs of transactions To the extent possible, the Commission or the Contracting Authority, as the case may be, shall prepare a statement of its costs up to and including closing related to a particular public-private partnership arrangement, in addition to anticipated post-transaction costs based on the obligations and commitments of the Contracting Authority entering into such a public-private partnership arrangement. - 60 Verify source ↗
Financial Year
The Commission’s financial year is 12 months ending on 30 June each year, unless the Minister specifies another date by Gazette Order.
60. Financial Year The financial year of the Commission 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 . - 61 Verify source ↗
Accounts
The Commission must keep proper accounting books and records, and its accounts must be audited every year by independent auditors appointed by the Commission and approved by the Minister.
61. Accounts (1) The Commission shall cause to be kept proper books of accounts and other records relating to its accounts. (2) The accounts of the Commission shall be audited annually by independent auditors appointed by the Commission and approved by the Minister. - 62 Verify source ↗
Annual financial report
The Commission must submit an annual report to the Minister within six months after each financial year ends, and the Minister must lay it before the National Assembly at the next meeting after receiving it.
62. Annual financial report (1) As soon as practicable, but not later than six months after the expiry of each financial year, the Commission shall submit to the Minister a report concerning its activities during that financial year. (2) The report referred to in subsection (1) shall be in such form as the Minister shall approve and shall include information on the financial affairs of the Commission, and there shall be appended to the report— (a) an audited balance sheet; (b) an audited statement of income and expenditure; and (c) such other information as the Commission may consider appropriate or as the Minister may direct. (3) The Minister shall, during the meeting of the National Assembly next following receipt by the Minister of the report referred to in subsection (1), lay the report before the National Assembly, but otherwise the Commission may publish the report for sale to the public.
Part X
Miscellaneous provisions
- 63 Verify source ↗
Prohibition against exerting undue influence on officers
A person must not try to improperly influence specified Commission-related people about matters for the Commission, and a recipient who thinks a communication may breach this rule must stop dealing with it and tell the Chairman at once.
63. Prohibition against exerting undue influence on officers (1) A person who communicates with a member of the Commission, the Chief Executive Officer, an employee of the Commission, a consultant, or an adviser or other person engaged by the Commission, for the purpose of influencing improperly that person’s consideration of any matter which falls to be considered or decided by the Commission, commits an offence. (2) If a person referred to in subsection (1) to whom a communication is made of the opinion that the communication may be in contravention of subsection (1), it shall be the duty of that person not to entertain the communication further and the person shall inform the Chairman of the Commission forthwith of the substance of such communication, and the Chairman shall acknowledge, in writing, receipt of such information. - 64 Verify source ↗
Settlement of disputes
Certain disputes must be settled by negotiation, mediation, or arbitration.
64. Settlement of disputes (1) Any dispute between— (a) an investor and the Commission arising from the divestiture process; (b) an investor, a Partner, a Contracting Authority and the Commission arising from or relating to a public-private partnership arrangement, shall be settled through negotiation, mediation, or, by arbitration in accordance with the Arbitration Act. [Cap. 6:03] - 65 Verify source ↗
Falsification of information
Knowingly falsifying information, failing to disclose required material facts, or soliciting unauthorized confidential information about a state-owned enterprise divestiture is an offence.
65. Falsification of information (1) A person who knowingly— (a) falsifies any information; (b) does not disclose any material facts when lawfully required to do so; and (c) solicits for use by any person not authorized under this Act any confidential information, relating to the divestiture of a state-owned enterprise, commits an offence. (2) A person convicted of an offence under subsection (1) shall not thereafter be eligible to participate in any public sector investment programme in Malawi. - 66 Verify source ↗
Administrative penalties
The Commission may impose administrative penalties for contraventions of the Act or regulations.
66. Administrative penalties (1) If the Commission is satisfied on reasonable grounds that a person has contravened this Act or regulations made under it, the Commission may impose administrative penalties on the person by doing one or more of the following— (a) giving the person a written warning; (b) directing the person to do a specified act, or refrain from doing a specified act, for one or more of the following purposes— (i) to remedy the effects of the contravention; (ii) to compensate persons who have suffered loss because of the contravention; (iii) to ensure that the person does not commit further contraventions; (c) requiring the person to pay a monetary penalty as may be prescribed by the Minister. (2) Without limiting subsection (1) (b), a direction may require the establishment of compliance programmes, corrective advertising or, in the case of a direction to a corporation, changes in the management of the institution. (3) A person on whom an administrative penalty has been imposed and who fails or refuses to comply with the administrative penalty commits an offence and, on conviction, shall be liable to a fine of Kl, 000, 000 and to four years imprisonment. (4) Where the administrative penalty imposed by the Commission is a monetary penalty and the person on whom the monetary penalty has been imposed does not pay for a period of more than thirty days from the date of first demand in writing by the Commission, the amount in respect of the monetary penalty shall be recoverable by the Commission as a civil debt. - 67 Verify source ↗
General penalties
If an offence under the Act has no specific penalty, the offender may be fined up to K1,000,000 and imprisoned for up to 4 years. For a body corporate, the court may instead impose a pecuniary penalty up to five times the maximum penalty for an individual.
67. General penalties (1) A person convicted of an offence under this Act, for which no penalty has been specified, shall be liable to a fine not exceeding K1,000,000 and to imprisonment for four years. (2) Where a body corporate is convicted of an offence under this Act, the court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to five years times the amount of the maximum pecuniary penalty that could be imposed by the court on an individual convicted of the same offence. - 68 Verify source ↗
Regulations
The Minister may make regulations, with the Commission’s advice, to carry out this Act.
68. Regulations The Minister may, on the advice of the Commission, make regulations for carrying out or giving effect to the provisions of this Act, and without prejudice to the generality of the foregoing, such regulations may prescribe— (a) the structure or general description of the structure of the partnership; (b) capitalization requirements; (c) debt level limitations; (d) operating conditions; (e) conditions as to the standard of maintenance and performance standards during the operation of the public-private partnership; (f) conditions as to the transfer of ownership of any assets or liabilities to the State or a municipality, including inspection and valuation processes; (g) conditions as to the transfer of risk to the Partner; (h) conditions as to fixed or variable subsidy levels; (i) conditions as to the need for performance bonds or guarantees from any party, its parent company or any other person; (j) the level or kind of local involvement that is expected or preferred; and whether any concessions might be made in return for local involvement; (k) conditions as to the step-in rights of the Government or any lender, which may include service level requirements; (l) dispute resolution processes; (m) circumstances in which the public-private partnership may be determined by the Government and the consequences of that termination; (n) conditions that must be met before any part of the public-private partnership may become operative or before charges may be imposed for use of any infrastructure or services provided by the public-private partnership; (o) tender procedures; (p) public floatation procedures; (q) pre-qualification and registration of bidders procedures; (r) public announcement requirements; (s) negotiation guidelines; (t) final sale or transaction monitoring guidelines; (u) pre and post-transaction audit requirements; (v) approach to, and procedures for, dealing with unsolicited proposals and direct negotiations for selection of the private sector; (w) risk sharing framework between a Contracting Authority and a Partner in a public-private partnership arrangement; (x) any forms and anything required to be prescribed under, or for the purposes of this Act; and (y) such other matters as are necessary or conducive for the better carrying out of this Act. - 69 Verify source ↗
Oversight of public-private partnership arrangements by regulators
Sector regulators must regulate public-private partnership arrangements consistently, after consulting the Commission, and the Minister must keep sector regulations effective and impartial.
69. Oversight of public-private partnership arrangements by regulators (1) The respective responsible sector regulators shall, in consultation with the Commission, subject public-private partnership arrangements to consistent regulation to ensure that the public-private partnership arrangements are being managed such a way that they are achieving the purpose for which they were established and are giving acceptable returns. (2) The appropriate Minister shall ensure that sector regulations are effective and impartial in order to promote public-private partnerships. - 70 Verify source ↗
Guidelines, policy directives or objectives
The Minister may issue policy directions about public-private partnership objectives, arrangements, and implementation guidelines, if advised by the Commission and approved by the Cabinet.
70. Guidelines, policy directives or objectives The Minister may, on the advice of the Commission and with the approval of the Cabinet, from time to time, issue policy directions prescribing further objectives and forms of public-private partnership arrangements and the guidelines to be followed for the proper and effective implementation of the provisions of this Act, and such objectives or guidelines shall be valid for all purposes unless inconsistent with this Act and only on the extent of the inconsistency.
Part XI
Transitional provisions, repeal and savings
- 71 Verify source ↗
Saving of existing agreements and arrangements
Certain pre-commencement agreements or arrangements are treated as if the Act had already been in force, subject to section 74.
71. Saving of existing agreements and arrangements Subject to section 74 , where an agreement or arrangement was entered into on a date before the commencement of this Act, and that agreement or arrangement would have been a public-private partnership arrangement or direct agreement if this Act had been in operation on such a date, then the agreement or arrangement, as the case may be, shall have effect and be taken always to have had effect as if this Act was in operation when the arrangement or agreement was entered into. - 72 Verify source ↗
Existing public-private partnership arrangements
Existing public-private partnership arrangements made before commencement must comply with this Act within 12 months.
72. Existing public-private partnership arrangements Any public-private partnership arrangement of any Contracting Authority effected at any time before the commencement of this Act shall comply with the provisions of this Act within twelve months from the commencement of this Act. - 73 Verify source ↗
Vesting of assets of the Privatization Commission
Property acquired by the Privatization Commission vests in the Commission, and existing Commission affairs, property, rights, and obligations are transferred or treated as continuing in the Commission on or after the appointed date.
73. Vesting of assets of the Privatization Commission (1) Any property procured or acquired by the Privatization Commission shall vest in the Commission. (2) On or after the appointed date, there shall be transferred to, and vested in, or subsisted against, the Commission by virtue of this Act and without further assurance— (a) the affairs of the Privatization Commission; and (b) subject to this Act, all property, rights and obligations which immediately before the appointed date were the property, rights and obligations of the Privatization Commission. (3) Except as provided in this Act, every deed, bond and agreement (other than an agreement for personal service) to which the Privatization Commission was a party immediately before the appointed date, whether in writing or not, and whether or not of such nature that rights, liabilities and obligations thereunder could be assigned, shall, unless its subject matter or terms make it impossible that it should have effect as modified in the manner provided by this subsection, have effect from the date of the assignment thereof, as if— (a) the Commission had been a party thereto; (b) for any reference to the Privatization Commission there were substituted, as regards anything falling to be done on or after the appointed date, a reference to the Commission; and (c) for any reference to any officer of the Privatization Commission not being a party thereto and beneficially interested therein there were substituted, as regards anything falling to be done on or after the appointed date, or reference to such officer of the Commission as the Commission shall designate. (4) Subject to the provisions of subsection (2), documents, other than those referred to therein, which refer specifically or generally to the Privatization Commission shall be construed in accordance with subsection (2) as far as applicable. (5) For the purposes of this Part— “Privatization Commission” means the Privatization Commission established under the Public Enterprises (Privatization) Act. [Cap. 46:07] - 74 Verify source ↗
Registration of property to be transferred by the Privatization Commission
If property, rights, liabilities, or obligations are transferred to the Commission and registration is required, the Commission must apply in writing for registration, and the registration authority must record the transfer. No registration fees, stamp duty, or other duties are payable for it.
74. Registration of property to be transferred by the Privatization Commission (1) Where under this Act, any property, rights, liabilities and obligations of the Privatization Commission are deemed to have been transferred to the Commission in respect of which transfer a written law provides for registration, the Commission shall make an application in writing to the appropriate authority for registration of such transfer. (2) The registration authority referred to in subsection (1) shall make such entries in the appropriate register as shall give effect to such transfer and, where applicable, issue to the transferee concerned a certificate of title in respect of the property or make necessary amendments to the register, as the case may be, and shall make endorsement on the deeds relating to the title, right or obligation concerned, and no registration fees, stamp duty or other duties shall be payable in respect thereof. - 75 Verify source ↗
Legal proceedings
If a right, liability, or obligation vests in the Commission, the Commission and others have the same rights, powers, and remedies from the appointed date for legal proceedings and applications to authorities.
75. Legal proceedings (1) Without prejudice to the other provisions of this Act, where any right, liability or obligation vests in the Commission by virtue of this Act, the Commission and all other persons shall, as from the appointed date, have the same rights, powers and remedies (and in particular the same rights as to the instituting or defending of legal proceedings or the making or resisting of applications to any authority) for ascertaining, perfecting that right, liability or obligation as they would have had if it had at all times been a right, liability or obligation of the Commission. (2) Any legal proceedings or application of any authority pending immediately before the appointed date by or against the Privatization Commission may be instituted by or against the Commission. (3) After the appointed date, proceedings in respect of any right, liability or obligation which was vested in, held, enjoyed, incurred or suffered by the Privatization Commission may be instituted by or against the Commission. - 76 Verify source ↗
Transfer of employees
Employees of the Privatization Commission in post before commencement are treated as transferred to the Commission on their former terms, with continuous service recognised.
76. Transfer of employees (1) Any person who immediately prior to the commencement of this Act is employed by the Privatization Commission shall be deemed to have been transferred to the employment of the Commission under the person’s former terms and conditions of service, and for purposes of determining the person’s rights thereunder, the service shall be regarded as being continuous from the time the person was appointed by the Privatization Commission. (2) No employee of the Privatization Commission transferred to the Commission by virtue of this section shall be entitled to claim any payments merely by virtue of such transfer. - 77 Verify source ↗
Repeal and savings
This section repeals the Public Enterprises (Privatization) Act, while preserving certain prior acts, subsidiary legislation, and contracts by treating them as done or made under this Act.
77. Repeal and savings (1) Subject to subsection (2), the Public Enterprises (Privatization) Act is hereby repealed. (2) Anything done in accordance with the Public Enterprises (Privatization) Act repealed by subsection (1), prior to the commencement of this Act and which may be done in accordance with the provisions of this Act, shall be deemed to have been done in accordance with this Act. [Cap. 46:07] (3) Any subsidiary legislation made or deemed to have been made under Public Enterprises (Privatization) Act repealed by subsection (1) in force immediately before the commencement of this Act— (a) shall remain in force, unless in conflict with this Act, and shall be deemed to be subsidiary legislation made under this Act; and (b) may be replaced, amended or repealed by subsidiary legislation made under this Act. [Cap. 46:07] (4) All contracts awarded by the Privatization Commission in accordance with Public Enterprises (Privatization) Act repealed by subsection (1), prior to the commencement of this Act, shall be deemed to be contracts awarded by the Commission in accordance with this Act. [Cap. 46:07]
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Public-Private Partnership Act
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