The criminal sanction under the Environment Management Act of Malawi: a critical analysis

• Author: Justin Kalima
• DOI: 10.10520/EJC76198
• Pages: 47-66
• Date: 01 January 2008
• Published date: 01 January 2008

THE CRIMINAL SANCTION UNDER THE

ENVIRONMENT MANAGEMENT ACT OF

MALAWI: A CRITICAL ANALYSIS

Justin Kalima*

ABSTRACT

Subject to the Constitution, the Environment Management Act No 23 of 1996

(EMA) is the supreme law governing environmental issues in Malawi. This Act

relies for its enforcement predominantly on criminal sanctions. This article

examines the provisions creating crimes under the EMA and argues that most of

them are inconsistent with the Constitution and at times make no sense in certain

respects. Given the importance that the Act attaches to criminal sanctions, it is

important that a comprehensive review of the Act and its criminal law provisions is

undertaken to ensure the effective and optimal protection of the environment.

I INTRODUCTION

Malawi has a plethora of environmental laws that employ the criminal

sanction as the primary tool for protecting the environment.1The spotlight in

this article is only on the criminal sanctions contained in the Environment

Management Act2(EMA). The principal reason for this selection is the

exalted status of the EMA and, consequently, of the criminal offences it

creates. The EMA is the most important statute governing environmental

matters. Its declared purpose is to ‘make provision for the protection and

management of the environment and the conservation and sustainable

utilisation of natural resources and related matters.’3Subject to the

provisions of the Constitution of the Republic of Malawi, the EMA enjoys the

status of supreme law in environmental issues. Its section 7 declares that,

‘where a written law on the protection and management of the environment

CRIMINAL SANCTIONS UNDER THE EMA 47

PhD (UKZN), LLM (Natal), LLB (Hons) (Malawi). Lecturer in Law, University of Malawi.

*

1Discussed in Justin M Kalima The effectiveness of environmental law in Malawi: An analysis of the

principal legal tools for achieving environmental protection with emphasis on the criminal sanction

(PhD Thesis: UKZN, 2006).

2Act No 23 of 1996.

3Long title of the EMA.

or the conservation and sustainable utilisation of natural resources is

inconsistent with any provision of the EMA, that written law is invalid to the

extent of the inconsistency.’

The manner in which criminal offences are couched and formulated in

the EMA will have an impact on the effectiveness of the environmental

protection regime in Malawi. Thus, this article critically analyses the criminal

provisions under the EMA with a view to determining whether these

offences, as currently defined, are rationally connected to the goals of

environmental protection as well as whether they can withstand

constitutional scrutiny. It will also discuss the strengths and weaknesses of

using criminal sanctions in environmental protection.

The EMA creates two types of offences: the general offence contained in

section 61 and specific offences contained in sections 62-67. The discussion

will follow in that order.

II GENERAL OFFENCE

Section 61(1) of the EMA states that ‘any person who contravenes any

provision of the Act for which no other penalty is specifically provided shall

be guilty of an offence and liable to a fine of not less than MWK10 000 [US

$72] and not more than MWK500 000 [US $3 623].’ In addition, a fine of

MWK5 000 [US $36] may be imposed for each day the offence continues to

be committed.4

This section is highly problematic. From a literal interpretation, it appears

as if it seeks to criminalise every contravention of the EMA. While it may

have been intended to serve as a cover for infractions not specifically

prohibited, such general criminalisation is absurd. For instance, section

8(2)(e) provides that the Minister must prepare and lay before the National

Assembly at least once every year a report on the state of the environment in

the country.It is absurd to think that Parliament had intended to criminalise

the Minister’s failure to do so.5

One way of getting out of this quandary is for courts to disregard the

literal meaning of section 61 and ask, in every case where this section is being

invoked, whether Parliament had intended the acts at hand to constitute the

general offence in the section. This approach requires courts to ‘ascertain, by

ordinary techniques of construction of statutes, whether the legislature had

intended that disobedience to a particular command or direction should

attract the criminal sanction’ as laid out in section 61.6

48 (2008) MLJ VOL.2, ISSUE 1

4Sec 61(2) of the EMA

5Sec 68 of the EMA provides that the Minister is immune from legal proceedings ‘in respect of

anything done in good faith under the provisions of this Act.’

6JRL Milton & G Cowling South African criminal law and procedure Vol III 2ed (Kenwyn: Juta