I have looked at the legal and regulatory requirements governing large-scale infrastructure projects in Malawi and elsewhere.
I have also tried to get a rudimentary understanding of international best practices, international treaties and conventions to which we as a country are signatories.
I have scanned through the Environmental Management Act of 1996—the mother of the Environmental and Social Impact Assessment (ESIA) process.
Through the Environmental Affairs Department (EAD), the Act also guides how the ESIA should be undertaken and outlines the approval process for ESIA reports. Actually, even the decision to carry out an ESIA must, by law, be approved by the EAD after being impressed with the project brief that developers submitted.
So far, Lilongwe Water Board’s (LWB) proposed project to pump water out of Lake Malawi from Salima then supply it to Lilongwe, which is 125 km away, and also distribute it to surround districts, has fallen sharply short of meeting the most basic of standards in developing environmental safeguards prior to a project’s start date.
Even the issue of land acquisition and compensation—as outlined in the various pieces of legislation governing land—appear not to have been well thought out in this project.
I am yet to see any entitlement framework, let alone relocation plan prior to the Lake Malawi project commencement. Maybe I missed these documents somewhere, but I would bet my last tambala that they are not there yet.
I cannot even talk about attempts to comply with legislation to do with the management of our country’s water resources. I have seen no evidence so far.
So, yes, there have been too many short-cuts when it comes to ensuring that environmental safeguards for the project are in place before the digging and the pumping starts.
But to call for the cancellation of the Lake Malawi water project contract at this stage maybe going too far; unless there are flaws in the procurement process that led to the identification of the preferred bidder.
I know they used a restricted tender which, according to the Public Procurement Act, is within the law.
Further, The Nation recently saw documents that show that the Office of the Director of Procurement (ODPP) approved both the method and the process of awarding the contract.
Thus far, there does not appear to be a problem with the contract, although it is possible some procurement procedures were flouted that I don’t know of.
If that is the case, someone has to come in the open and point them out.
Otherwise, given that the contractor and the client already signed a pre-contract and the company to carry out the task has already spent tens of millions of dollars in mobilisation and other investments, it might be prudent to simply postpone the project’s commencement until all the necessary environmental processes are followed.
But the contract must remain intact to avoid legal battles that will only drain the government coffers further and delay an important project even further. The clock is ticking for Lilongwe and when the crisis comes, everyone will be pointing fingers at everyone while millions of residents suffer.
Already, government has huge compensation bills it is failing to pay several companies and individuals on account of botched contracts.
Most of these legal cases end as default judgements because for some reason or other, the State fails to defend them.
My take is that it is not the responsibility of the bidder to ensure that government follows its own processes—that task lies with the procuring entity and the government in general. n