Malawi National Roads Authority Act of 1997
(May 9, 1997)
An Act to make provision for the establishment of the National Roads Authority for the maintenance, rehabilitation and development of public roads; and for purposes connected therewith and incidental thereto. ENACTED by the Parliament of Malawi as follows:  
Part 1—Preliminary
1. This Act may be cited as the National Roads Authority Act, 1997.

2. In this Act, unless the context otherwise requires—

Part II—Establishment of National Roads Authority
3. There is hereby established a body to be known as the National Roads Authority (in this Act otherwise referred to as the "Authority" which shall— (a) be a body corporate with perpetual succession;

(b) have a common seal;

(c) be capable of—

(i) acquiring, holding and disposing of real and personal property;

(ii) suing and being sued in its corporate name; and

(iii) doing or performing all such acts and things as a bodies corporate may by law do or perform.

4. The purpose of the Authority shall be to— (a) ensure that public roads are maintained, rehabilitated at all times;

(b) raise funds for maintenance and rehabilitation of public roads;

(c) advise the minister and, where appropriate, the Minister responsible for local government and the Minister responsible for transport on—

(i) the preparation and the efficient and effective implementation of the annual national roads programme referred in section 25; and

(ii) the control and overloading on vehicles on public roads.

 
Part III—Board of Authority

5. - (1) The operations of the Authority shall be managed and controlled by a Board which shall consist of— (a) the following members to be appointed by the Minister— (i) one member nominated by and representing the Road Transport Operators Association;

(ii) one member nominated by and representing the Bus and Taxi Operators Association;

(iii) one member nominated by and representing the Tobacco Association of Malawi, the Tea Growers Association of Malawi and the sugar manufacturing industry;

(iv) one member nominated by and representing Malawi Chamber of Commerce and Industry;

(v) one member nominated by and representing local government authorities;

(vi) one member nominated by and representing the National Road Safety Council of Malawi established under the National Road Safety Council of Malawi Act;

(vii) one member nominated by and representing the National Construction Industry Council of Malawi established under the National Construction Industry Council of Malawi Act;

(viii) three members of the public representing the general interest of the public;
 

(b) the following ex-officio members— (i) the Secretary for Works and Supplies, or his designated representative;

(ii) the Secretary for Local Government, or his designated representative;

(iii) the Secretary for Transport, or his designated representative;

(2) The Minister shall appoint the Chairman of the Board from amongst the members of the Board and the members of the Board shall elect a Vice Chairman from amongst their number.

(3) All ex officio member of the Board or any person employed in the public service shall not be eligible to be appointed Chairman or elected Vice Chairman of the Board but shall have the right to vote on any matter at the meetings of the Board.

(4) Members of the Board shall not, by virtue only of their appointments to the Board, be deemed to be officers in the public service.

(5) The names of all members of the Board as first constituted and every change in the membership thereof shall be published in the Gazette.

(6) A member of the Board, other than the ex officio member shall hold office for a period of three years from the date of his appointment and shall be eligible for re-appointment at the expiry of that period

6. If a member of the Board acquires any pecuniary interest, direct or indirect, in any contract, proposed contract or other matter and is present at the meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration by the Board, he shall at the meeting, as soon as practicable after the commencement of the meeting, disclose the fact to the Board, and shall nottake part in the consideration and discussion of, or vote on any question with respect to, the contract or other matter.

7. - (1) For the better carrying into effect of the purposes for which the Authority and the Fund are established, the Board may establish such number of committees as the Board shall deem appropriate to perform such functions and responsibilities as the Board shall determine subject to the directions of the Board.

(2) The provisions of this Act relating to the meetings of the Board shall apply mutatis mutandis to the meetings of any committee.

(3) The Board shall appoint the chairman of each committee from amongst the members of the Board.

8. The Board may, in its discretion, at any time and for any length of period, co-opt any person to attend any deliberations, of the Board, but such person shall not be entitled to vote on any matter at any meeting of the Board.

9. - (1) The office of a member, other than an ex officio member, shall be vacated —

(a) upon the expiry of the period of his appointment;

(b) upon his death;

(c) if he is adjudged a bankrupt; (d) if he is sentenced for an offence against any written law to a term of imprisonment of, or exceeding, six months, otherwise than as an alternative to, or in default of, the payment of a fine; (e) if he is convicted of an offence -involving fraud or dishonesty; (f) if he is absent, without the permission of the Board, from three successive meetings of the Board of which he has had notice;

(g) upon notice in writing of his intention to resign his office;

(h) if, in the opinion of the Board, he becomes, by reason of mental or physical infirmity, incapable of performing his duties as a member of the Board;

(i) upon the commission of the offence referred to in section 28;

(2) Whenever there is a vacancy, in the office of a member of the Board, the Minister shall by, notice published in the Gazette, appoint — (a) in the case of a member referred to in Section 5 (1) (i) to (vii), another person, nominated by the authority or institution which nominated the original member, to fill the vacancy; and

(b) in the case of a member referred to in section 5 (1) (a) (viii), appoint another person to fill the vacancy;

(3) Subject to section 10 (3), the Board may act notwithstanding any vacancy in the membership of the Board.

10. (1) The Board shall meet at such place or places, and at such time or times as the Chairman may determine and shall meet at least once in every two months.

(2) Ordinary meetings of the Board shall be convened by at least fourteen days written notice to the members by the Chairman, and the Chairman may, at his discretion, and shall at the written request of four or more members of the Board and within seven days of such request, cause an extraordinary meeting of the Board to be summoned at such place and time as he may appoint.

(3) The Chairman, or in his absence, the Vice Chairman shall preside at meetings of the Board, and the quorum at any meeting of the Board shall be one third of the members of the Board.

(4) In the absence of both the Chairman and Vice-Chairman, the members present and forming a quorum shall elect one of their number to preside over the meetings of the Board, and the member so elected shall exercise all the powers and perform all the duties of the Chairman.

(5) Subject to the provisions of this Act, the Board may make standing orders for the regulation of its proceedings and business or the proceedings and business of any of its committees and may vary, suspend or revoke any such standing orders.

(6) Minutes of each meeting of the Board or a committee of the Board shall be kept by the secretary and shall be confirmed at the succeeding ordinary meeting.

(7) At any meeting the decision of the Board on any matter shall be that of the majority of the members present and voting, and at all such meetings the person presiding shall have, in the event of an equality of votes, a casting vote in addition to his deliberative vote.

(8) The Board shall designate any person in the employ of the Authority to be the secretary to the Board or at the meetings of any of its committees.

11. Members of the Board shall be paid from the Fund such allowances as the Board may, subject to the approval of the Minister, determine and the Board may make provision for the reimbursement of any reasonable expenses incurred by a member of the Board or of a committee of the Board in connection with the business of the Board or the committee.
 

Part IV—Functions and Powers of the Board
12. For achieving the purpose referred to in section 4, the Board shall—
    1. decide the allocation of financial resources required by roads agencies for the maintenance, rehabilitation and development of public roads;
    2. advise the Minister on the maintenance, rehabilitation, and development of public roads, and the prohibition of any act that may lead to damage to public roads;
    3. monitor the operations or activities undertaken by any road agency in the maintenance, rehabilitation and development of public roads;
    4. advise the Minister on the research and studies necessary for promoting the maintenance, rehabilitation and development of public roads;
    5. ensure that all tenders for the maintenance, rehabilitation or development of public roads are conducted through open and competitive bidding, in a transparent and fair manner;
    6. advise the Minister on the specifications, design standards and classification of public roads;
    7. advice Minister and the Minister responsible for transport on the types, sizes, and usage of vehicles on public roads and the laden and axle weight of vehicles for purposes of protecting public roads from damage
    8. advise the Minister on the development and training of human resources required for the maintenance, rehabilitation and development of public roads;
    9. advise the Minister and the Minister responsible for Finance on the allocation of financial resources required by the roads agencies for the maintenance, rehabilitation and development of the different classes of roads under the responsibility of the roads agencies;
    10. advise the roads agencies on the maintenance, rehabilitation and development of the different classes of public roads under their responsibility;
    11. make-such rules as the Board thinks necessary for securing the due and effective administration and management of the Fund;
    12. prepare, publish and submit to the Minister audited annual accounts of the Fund;
    13. liaise with the National Road Safety Council of Malawi established under the National Road Safety Council of Malawi Act on matters relating to safety of persons and animals on public roads;
    14. advise the Minister responsible for transport on appropriate road signs, and the road agencies on the location of road signs on public roads;
    15. recommend to the Minister, from time to time, appropriate levels of road user charges, fines, penalties, levies or any sum required to be collected under this Act and paid into the Fund;
    16. recommend to the Minister responsible for energy, from time to time, such reviews in fuel levies as are necessary for the purposes of the Fund;
    17. recommend to the Minister and the Minister responsible for land matters the reservation of land for public roads and for diversions and detours of public roads under maintenance, rehabilitation or development;
    18. identify and recommend to the Minister, donor funding for the maintenance, rehabilitation and development of public roads
    19. prescribe measures for preventing damage however cause by any person to any public road or any part thereof and for recovering, in full or in part, the cost of repairing the damage from such person or his insurers;
    20. advise the Inspector General of Police or the roads agencies, as the case may be, on appropriate and effective methods o enforcing road traffic legislation for the purposes of preventing damage to public roads and promoting road safety;
    21. ensure that roads agencies -carry out effective, monitoring of the condition of all public roads for the purposes of timely implementation of road maintenance, rehabilitation and development programmes;
    22. publish periodic reports of the activities and achievement of the Authority and make the reports available to the general public;
    23. advise the Minister and the Minister responsible for transport on the enforcement of axle load limits of vehicles; and
    24. do all such things as are necessary for achieving the purposes for which the Authority and Fund are established.
13. For the better performance of its functions, the Board shall subject to the provisions of this Act and any other written law, have power— (a) to raise money in the form of road user charges;

(b) to authorize any employee or agent of the Authority to enter upon any land and bring thereon vehicles equipment or other property of the Authority, and structures and do such other things as are necessary for achieving the purposes for which the authority is established;

(c) to publish, from time to time, such technical or other information as it deems necessary or expedient for the promotion of the maintenance, rehabilitation and development, or generally on the condition of public roads.

14. Subject to the Finance and Audit Act, the Board may raise on behalf of the Authority, moneys by way of loan's or bank overdrafts on such reasonable terms and conditions as the Board may, in writing, agree with the lender.

15. (1) The Board shall be responsible and accountable to the Minister for ensuring efficiency, transparency and propriety—

(a) the collection and utilization of public funds under this Act;

(b) the conduct of its business; and

(c) the operations and activities of the Authority.

(2) The Board shall not disburse any money or authorize the payment of any money to any contractor engaged by a road agency to maintain or rehabilitate any public road unless the Minister has certified in writing that the work in respect of which the contractor is engaged to perform has been carried out to the required standard. [Note: Government has proposed an amendment to modify this clause and limit the Minister’s powers of prior approval to works above the threshold of K50 million equivalent.] 16. The Board shall, at such intervals as the Minister may in writing require, submit to the Minister reports and financial statements, in such form as the Minister may determine, regarding the operations and activities of the Authority, the Board and the Fund. 17. (1) If the Minister has reasonable cause to suspect that— (a) the Board has failed to observe or perform any of the duties or obligations conferred or imposed upon it by this Act or any other written law; (b) the Board has done or performed any act, matter or thing without due authority

he may, in his discretion, appoint a person or persons (hereinafter referred to as the "Commission of Inquiry") to inquire into such matter.

(2) The Commission of Inquiry shall determine its own procedure but the Minister may, if he deems it fit, define the terms of reference for the Commission of Inquiry.

(3) If, upon an inquiry under this section, the Minister is satisfied that the Board has done or suffered any of the acts, matters or thing, referred to in subsection (1), he may by order in writing require the Board to remedy the same within such time as he may appoint.

(4) If the Board fails to comply with an order of the Minister made under subsection (3), the Minister may, in addition to any other powers conferred on him by this Act—

(a) suspend the exercise by the Board of any of the powers conferred upon it by this Act or any other written law for such period as he may think fit;

(b) remove from office all or any of the members and, in his discretion, appoint new members pursuant to section 5,

and during such period, or as the case may be, pending the appointment of new members, confer upon any person the exercise of any powers so suspended or of the members.

(5) The expenses incidental to—

(a) any inquiry under this section; and (b) the exercise of any of the powers of the Board under sub-section (4),

shall be paid by such person as the Minister may direct, and if, the Minister directs payment by the Board, such expenses shall be charged upon the annual revenue of the Authority or the Fund.

18. (1) There is hereby established a Fund to be known as Roads Fund (in this Act otherwise referred to as the "Fund") which shall consist of—
    1. such road user charges as the Minister may, from time to time, on the recommendation of the Board and in consultation with the Minister responsible for finance, determine by order published in the Gazette;
    2. such sums as shall be appropriated by Parliament for the purposes of the Fund;
    3. such sums or assets as may accrue to or vest in the Fund, whether in the course of the exercise by the Board of its functions or powers or otherwise;
    4. such sums or assets as may accrue to or vest in the Fund by way of grants, subsidies, bequests. donations, gifts and subscriptions, from the Government or any other person;
    5. such sums as are derived from the sale of any property, real or personal, by or on behalf of the Authority;
    6. such sums as are received by the Fund by way of voluntary contributions,
    7. penalties payable under this Act; and
    8. such sums or assets as may be donated to the Fund by any foreign government, international agency or other external body of persons, corporate or unincorporate
(2) For the purposes of this section an "external body of persons" means any body of persons, corporate or unincorporated, formed under or by virtue of the laws of any country other than Malawi.

19. (1) The purpose of the Fund shall be to finance—

    1. the administrative expenses associated with the execution of the duties and responsibilities of the Authority and the management of the Fund;
    2. routine and periodic maintenance of public roads;
    3. on a cost sharing basis, routine and periodic maintenance of , roads, tracks and trails under the responsibility of such roads committees as may be established by a city, town, municipal or district council, as the case may be, for the purposes of this Act;
    4. any monetary (Contribution required to be made by the Government for the implementation and execution of a donor-funded project for the maintenance, rehabilitation or development of any public road;
    5. such road safety programmes as the Board, in consultation with the National Road Safety Council of Malawi, may determine;
    6. the human and technological resources required for enforcing limits on weights and dimensions of vehicles; and
    7. research related to the maintenance, rehabilitation and development of roads.
(2) Any surplus from the Fund, not exceeding ten percent of the total revenue collected or estimated to be collected in any financial year, may be utilized to finance such minor road works, including upgrading of existing public roads, tracks and trails, as the Board may, on the recommendation of road agencies, approve.

20. (1) The Board shall ensure that in any financial year expenditures and commitments from the Fund shall not exceed the annual income of the Fund.

(2) If, in exceptional circumstances, the income of the Fund together with any surplus income brought forward from a previous year, is insufficient to meet the actual or estimated liabilities of the Authority, the Minister responsible for finance may make advances to the Fund in order to meet the deficiency or any part thereof and such advances shall be made on such terms and conditions, whether as to repayment or otherwise, as the Minister responsible for finance may determine:
Provided that any such advance shall be repaid from the income of the Fund in the next financial year.

 
Part VI—Financial Provisions
21. (1) The Board shall cause to be kept proper books and other records of account in respect of receipts and expenditures of Fund and the Authority in accordance with acceptable principles of accounting.

(2) The accounts of the Fund and the Authority shall be audited annually by the Auditor General or by independent professional auditors appointed by the Board with the approval of the Auditor General, and the expenses of the audit shall be paid out of the Fund.

(3) The Board shall, as soon as practicable, but not later than three months after the end of the financial year of the Authority, submit to the Minister and publish in the Gazette and in at least two newspapers published and in circulation in Malawi an annual report on all the financial transactions in Malawi an annual report or all the financial transactions of the Fund and on the work, activities and operations of the Authority.

(4) The report referred to in subsection (3) shall include a balance sheet and an income and expenditure account, and shall be laid by the Minister before the National Assembly in accordance with the Finance and Audit Act.

(5) The Authority shall at all times comply with the provisions of the Finance and Audit Act.

22.- (1) All sums received for the purposes of the Authority and the Fund shall be paid into one or more banking accounts at such bank or banks as the Board may determine, and no amount shall be withdrawn therefrom except under the authority of the Board and by means of cheques signed by such persons as are authorized in that behalf by the Board. -- -

(2) Any part of the Fund not immediately required for the purposes of the Authority may be invested in such manner as the Board may, in its discretion, determine. -

23. The financial year of the Authority and the Fund shall be the period of twelve months commencing on the 1st April of each year and ending on the 31st March of the following year:
Provided that the first financial year may be a period shorter or longer than twelve months as the Board shall determine, but in any case not longer than eighteen months.

24.- (1) The Board shall appoint a suitably qualified manager who shall be the chief executive officer of the Authority upon such terms and conditions as the Board shall, in its discretion, determine.

(2) The chief executive officer shall be responsible to the Board for the general performance of the functions and the exercise of the powers of the Authority and shall appoint such other professional, technical and administrative officers as the Board may deem necessary, subject to such terms and conditions as the Board shall determine.

(3) The Authority shall pay to every person in its employ such remuneration and allowances and grant to every such person such fringe benefits as it may deem appropriate.

(4) The Authority may provide for persons in its employ or their dependents, by means of insurance with an insurance company or a pension or provident fund or in any other manner whatsoever, pecuniary benefits upon retirement, death or termination of service or in the event of illness or injury.

25. Every roads agency shall, at least six months before the commencement of every financial year, submit to the Board an annual roads programme in such form and containing such details as the Board shall specify, outlining a comprehensive plan of action for the maintenance, rehabilitation and development of public roads, tracks and trails under the charge of the roads agency, and the estimated costs of every activity required to implement the plan of action.

26.-(1) The Board shall review, individually, the annual roads programmes submitted to it by the roads agencies under section 25 and shall thereafter consolidate the annual roads programmes into one annual national roads programme which shall—

    1. specify the amounts allocated for the maintenance, rehabilitation and development of each class of roads;
    2. match the cost of implementing the annual national roads programme with revenues collected or estimated to be collected for the purpose of this Act; and
    3. identify roads requiring maintenance, rehabilitation or development in order of priority, taking into account the social and economic requirements of the country or any part thereof in which the roads are located.
27. The Board shall submit to the Minister the annual national roads programme for approval. 28.-(1) Any person who appropriates or applies or causes any other person to appropriate or apply, any proceeds or assets of the Authority or the Fund otherwise than in accordance with this Act shall be guilty of an offence and shall, upon conviction, be liable to a fine of K20,000 and to imprisonment for twelve months.

(2) Any person who contravenes section 6 shall be guilty of an offence and shall, upon conviction, be liable to a fine not exceeding the value or price of the proposed contract or other matter in respect of which he falls to disclose his interest, and to imprisonment for twelve months but the fact of a person having so voted shall not invalidate any resolution or proceeding of the Board.

(3) Any person who contravenes section 22 (1) shall be guilty of an offence and shall, upon conviction, be liable to a fine of K50,000 and to imprisonment for two years.

(4) It shall not be a defence to an offence under this Act that the proceeds of the Fund have been appropriated or applied for the benefit of the public.

29. Where any provision of any written law relating to public roads, road traffic or road safety is inconsistent with any provision of this Act, the provision of that written law shall be invalid to the extent of the inconsistency.

30. The Minister may, by notice published in the Gazette, make regulations for the better carrying into effect of this Act.

Passed in Parliament this fifteenth day of April, one thousand, nine hundred and ninety-seven.