Towards the adoption of the extractive industries transparency code and the implications for transparency in Malawi's mining sector

Abstract

Since time immemorial extractive industries have been shrouded in secrecy worldwide. This stemmed countries with high levels of corruption and weak administrative systems and vulnerable regulatory frameworks to seldom develop or economically grow from extractive industries revenues. This has led to the identification of transparency as being the evasive factor worldwide to help attract more investments, avoid the resource curse and curb corruption. Malawi is no exception to this trend and has one of the lowly performing and very obscure mining sectors. That though Transparency is a fundamental principle of the Constitution of Malawi; it is not reflected in the Mining laws of Malawi which were enacted before the Constitution. The secrecy that hovers over the activities of the mining sector has provoked various stakeholders to demand their inclusion in the processes of concluding contracts due to lack of visible benefits from existing investments. To avoid difficult forums of stakeholders gathering to make a decision on intended investments to be made, there has been a call to make the mining industry more transparent. This entails the introduction of public scrutiny post-contract making which remains the discretion of the Minister. Attempts to introduce transparency have led to the introduction of Transparency initiatives whose main objective is to ensure transparency is evident in extractive industries such as mining. Malawi is currently deciding whether to adopt one such initiative called the Extractive Industries Transparency Initiative. It is a strong advocate for transparency in extractive sector which is voluntary in nature and mandates the disclosure of revenues collected by government and the companies to report the amounts paid to government. Adoption of EITI is pegged to immensely improve the mining sector through increased FDI inflow. This dissertation argued for Malawi to adopt EITI because it found that the Malawian mining sector is governed by ancient laws which are silent on transparency principles. This thesis found that EITI though is a stepping stone for Malawi, it lacks several crucial factors in its scope and the thesis highlights several shortfalls of the initiative. EITI implores revenue transparency over other forms of transparency. And this research found that Malawi needs contract transparency more than revenue transparency because Malawi’s mining sector is contract-based rather than legislative-based thereby recommending Malawi include contract transparency to the standard EITI scope. It was further concluded that Malawi emulates Liberia by extending their scope to include other extractive sectors like agriculture besides the classified Oil, Gas and Mining. This thesis spurred a debate as to enforcement and compliance of EITI. It was discovered that Malawi is already a member to various international instruments that advocate the transparent means of administering the extractive sector but sadly these are not fully implemented in the mining sector. This is attributable to the fact that Malawi’s laws stipulate that newly adopted international laws or standards do not have binding force until converted into domestic legislation. Consequently, since EITI is termed ‘soft law’ because it lacks enforcement, this study concluded that Malawi needs to enact a domestic law to ensure enforcement. This was drawn from the comparable analysis of Nigeria and Liberia who have enacted EITI legislation to ensure effective implementation. It was drawn from this analysis the need to enact legislation codifying EITI in order to ensure compliance and as a form of enforcement. With the idea of introducing a new EITI law, this thesis found that EITI if adopted will be aligned to Malawi’s international obligations but its principles contrary to domestic laws. This study, nevertheless, concluded these inconsistencies can be ironed by explicitly stating in the EITI code that it is an exception to the general laws such as tax laws which prohibit disclosure of taxes paid to third parties. Based on these findings, this dissertation recommends the improvement of transparency in the mining sector through the adoption of EITI. That Malawi should codify it into domestic legislation to convert its voluntary element into mandatory. That this new law should expressly state EITI as an exception to existing laws which it is inconsistent with. It further recommends Malawi includes agriculture to the standard EITI scope as the administration of which could also help boost the economy of which it heavily contributes to. It also recommends the amendment of the mining laws to reflect transparency principles stipulated in the superior law of the land the constitution, international instruments and core principle of EITI. It points out the importance of government to involve existing extractive companies as the adoption of EITI directly impacts them and therefore consultation is vital.