EYE ON MALAWI’S Extractives with Rachel Etter Phoya
What is the role of the public in Malawi’s ESIA?
Malawi has a new Environmental Management Act (2017). The law guarantees public participation broadly in environmental management (Section 5) and access to information (Section 85); under old legislation, the Director of Environmental Affairs was given the discretion to determine if public hearings should take place. Now the Environmental Social Impact Assessment (ESIA) – as opposed to just an Environmental Impact Assessment (EIA) – is a compulsory process for all companies.
The purpose of ESIAs is to help public authorities (including representatives of citizens, such as Members of Parliament) weigh the potential of economic development through an activity like mining against the potential environmental, cultural and social impacts. It also provides information to subsequently monitor activity and take precautionary action and may give the public the opportunity to influence or stop a project.
The EIA was first introduced as an environmental management tool in the 1960s in the United States. Since then, most countries include it as a requirement for certain types of projects, particularly in the extractive industries. The way the public is defined in national legislation, the purpose, type and duration of public participation, and the possible outcomes for a project due to public participation vary, of course, from country to country.
In fact, in a recent study , nine different potential objectives of public participation in the EIA process were identified: public participation to allow those affected to influence decisions (1), to increase democratic capacity (2), to encourage social learning (3), to empower and emancipate marginalised people and groups (4), to improve the quality of the decision through public participation by harnessing local knowledge and information (5), to incorporate experimental and value-based knowledge (6), to test the robustness of information from other sources (7), to generate legitimacy for a project (8), and to resolve conflict (9).
Malawi first introduced the EIA with the 1996 Environmental Management Act. There has been only limited published research to date on the EIA process. However, Mhango concludes that there needs to be mandatory regulations to ensure the EIA is a useful tool and society and the environment are safeguarded.  At present, there are guidelines from 2011 that help direct the EIA process, but these are not binding. That said, international companies and financial institutions have often gone beyond the law (e.g. implementing ESIAs where only EIAs are required in the past) as part of their stakeholder and risk management approach as well as due to international financing regulations and expectations of shareholders. This cannot be said for all projects though.
The most extensive study  of sixty EIAs and environmental audit reports concluded that ‘public participation is not adequate at most of the key stages of the EIA process in Malawi which puts the human and ecosystem health at risk’ (307), and for one mining project this resulted in popular disapproval.
To ensure meaningful public participation, the following are some basics established by international organisation Pact  in its work in the Mekong Region in Southeast Asia:
- Clearly define the objectives of public participation as this affects how the process is defined, who is counted in the ‘public’ and potential outcomes of participation
- Distinguish between different groups in the ‘public’ to design appropriate means of inclusion (e.g. to ensure that not only community leaders or adult males are consulted), considering characteristics such as literacy levels, expertise, availability and infrastructure
- Determine the type of participation (a range exists from informing and consulting to involvement, collaboration and empowerment); Free, Prior and Informed Consent is the most inclusive form of public participation, but this is not guaranteed under any of Malawi’s laws at present (see image)
- Public participation goals and ensuing process design must be considered along six steps of the ESIA process: screening, scoping, EIA investigation and preparation, review of EIA report and EMP, decision making, and compliance, monitoring and enforcement
- Government, as it has the mandate to regulate and oversee the process, should have a checklist for meaningful participation to be used to assess participation from the perspective of stakeholders at each stage; although distinct questions are required for each stage, they should include questions about the type and objectives of engagement, who was involved, what and how has information been shared and collected, what were the desired outcomes and if these have been met
- Companies should develop a public participation plan for approval and review by government and stakeholders.
The ESIA process provides an opportunity for building consensus around a project. Public participation can help to ensure key environmental, economic and social considerations influence project development if a project is given the go-ahead, which is desirable for all involved or affected.
For further reading, take a look at:
- Glucker, A.N., Driessen, P.P.J., Kolhoff, A., and Runhaar, H.A.C. 2013. Public participation in environmental impact assessment: why, who and how? Environmental Impact Assessment Review 43: 104-111.
- Mhango, S.D. 2005. The quality of environmental impact assessment in Malawi: a retrospective analysis. Development Southern Africa 22(3): 383-403.
- Kosamu, I.B.M., Mkandawire, A.A., Utembe, W. and Mapoma H.W.T. 2013. Public participation in Malawi’s environmental impact assessment (EIA) process. African Journal of Environmental Science and Technology 7(5): 307-311.
- March 2017. Guidelines on Public Participation in EIA in the Mekong Region.
This piece was initially published in Malawi’s Mining & Trade Review Issue Number 58 (February 2018).