Public-Private Partnership Act
- Commenced on 1 July 2012
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Public-Private Partnership Act.
2. InterpretationIn this Act, unless the context otherwise requires—“Commission” means the Public-Private Partnership Commission established under section 4;“bank” has the meaning ascribed thereto in the Banking Act;[Cap. 44:01]“Chairman” means the Chairman of the Commission as specified under section 5;“Chief Executive Officer” means the head of the Secretariat of the Commission appointed under section 15;“commercialization” means the re-organization of specified Government departments into commercialized enterprises which shall operate as profit making commercial ventures;“company” means a company within the meaning of section 2 of the Companies Act;[Cap. 46:03]“concessionaire” means a Partner assigned through a long-term concession contract with a Contracting Authority, the right to invest and maintain an infrastructure project or provide a service to the public, and be compensated through charging of user fees directly to the public;“consultant” means any person employed by the Commission to undertake any work of a specialized nature connected with the work of the Commission and includes banks, public accountants, economists, investment banks, doctors, architects, quantity surveyors, engineers, communication experts, lawyers and valuers;“construction” includes building, refurbishment, rehabilitation, maintenance, repair, improvement, demolition, extension and replacement;“Contracting Authority” means any Ministry, Government Department, Local Authority or state-owned enterprise;“direct agreement” means an agreement entered into between a Contracting Authority and a person who has arranged or provided funding for a Partner for the carrying out of a particular public-private partnership arrangement;“divestiture” means the disposing of the whole or part of the assets and shares of a state-owned enterprise;“Divestiture Proceeds Account” means the account established under section 55;“equity” means any financial interest resulting from the purchase of shares for consideration;“established fund” includes a pension fund, contributory social security scheme, compensation fund and superannuation fund;“financial institution” has the meaning ascribed thereto in the Financial Services Act;[Cap. 44:05]“immediate family member”, in relation to any person, means that person’s spouse, child, parent, brother, sister, grandchild or grandparent;“infrastructure facility” includes an existing asset or an asset to be provided under a public-private partnership arrangement and means physical facilities and systems that directly or indirectly provide services to the public;“investor” means an individual, a company, an established fund, a mutual fund, a financial institution or any other institution, entity or commercial venture whether local or foreign, and in any format of enterprise recognized as a legal entity under the laws of Malawi, intending to invest in a state-owned enterprise or in an infrastructure facility under a public-private partnership arrangement, but does not include the Government, a Local Authority or a state-owned enterprise whether foreign or local;“Local Authority” means a City, Town, District, or Municipal Council, established under the Local Government Act;[Cap. 22:01]“market value” means the market value of a state-owned enterprise at the completion of the sale;“mutual fund” means an investment fund which purchases shares in a portfolio of companies and subdivides such portfolio into individual units for sale of such units to investors;“operation” includes management and maintenance;“Partner” in relation to a public-private partnership arrangement, means a party to the arrangement other than a Contracting Authority;“property” means all property, movable or immovable, and all estates, interests, easements and rights, whether legal or equitable into or out of property, chooses-in-action, money and good-will;“public investments projects” includes projects involving public-private partnership arrangements;“public-private partnership arrangement” refers to the arrangement provided for in Part V;“public-private partnership” means a contract in which a Contracting Authority partners with a Partner to build, expand, improve, or develop infrastructure or service in which the Contracting Authority and private sector partner contribute one or more of know-how, financial support, facilities, logistical support, operational management, investment or other input required for the successful deployment of a product or service, and for which the Contracting Authority and the private sector partner is compensated in accordance with a pre-agreed plan, typically in relation to the risk assumed and the value of the result to be achieved;“Special Purpose Vehicle” means a Company incorporated for the purpose of implementing a public-private partnership arrangement including for raising finance for public-private partnership projects as anticipated in section 21;“specified Government department” means a department specified by the Minister under section 48;“state-owned enterprise” means a corporation, board, commission, company, parastatal body or similar body, corporate or unincorporate, in which the Government has direct or indirect ownership, equity or interest and includes partnerships, joint ventures or any other form of business arrangement or organization or any commercial entities or commercial assets howsoever held or created in which the Government has direct or indirect interest but does not include a Government department or a Local Authority;“stocks” and “shares” in relation to a state owned enterprise includes loans, stocks, debentures and debenture stock and options on any stocks, shares, loan, debentures or debenture stock and rights; and“stock broker” means a person who carries on the business of buying and selling stocks or shares for and on behalf of other persons.
Part II – Objectives of public-private partnerships and divestiture of state-owned enterprises
Part III – The Public-Private Partnership Commission
4. Establishment of the CommissionThere is hereby established a body to be known as the Public-Private Partnership Commission (in this Act otherwise referred to as the “Commission”) which shall be a body corporate with perpetual succession and a common seal capable of suing and being sued in its corporate name, and with power, subject to this Act, to do or perform all such acts and things as a body corporate may by law do or perform.
5. Composition of the Commission
6. Tenure of office and vacanciesA member of the Commission shall hold office for a period of three years and shall be eligible for re-appointment, but the office of that member shall become vacant—
7. Allowances of membersMembers of the Commission shall be paid such allowances as the Minister shall determine.
8. Authority and functions of the Commission
9. Provision of advice
10. Proceedings of the Commission
11. Committees of the Commission
12. Minutes of meetingsThe Commission shall cause minutes to be kept of the proceedings of every meeting of the Commission and of every meeting of a committee of the Commission.
13. Disclosure of interestIf any member is present at a meeting of the Commission or of any committee of the Commission at which any matter which is the subject of consideration is a matter in which that person or that person’s immediate family member, or that person’s professional or business partner is directly or indirectly interested in a private or professional capacity, the person shall, as soon as is practicable after the commencement of the meeting, disclose such interest and, unless the Commission or the committee otherwise directs, that person shall not take part in any consideration or discussion of, or vote on, any question touching on such matter.
14. Co-opted persons
Part IV – Secretariat
15. Secretariat of the CommissionThe Secretariat of the Commission shall consist of the Chief Executive Officer and other employees of the Commission appointed under this Part.
16. Chief Executive Officer of the Commission
17. Other employeesThe Commission may delegate to the Chief Executive Officer the employment, on such terms and conditions as the Commission may determine, such other employees, subordinate to the Chief Executive Officer, as the Commission considers necessary for the performance of the Chief Executive Officer’s functions and to assist the Chief Executive Officer in the discharge of the Chief Executive Officer’s duties and responsibilities.
18. Disclosure of interest by employees, etc.
19. Oath of secrecyEvery—
20. Prohibition of publication or disclosure of information by unauthorized persons
Part V – Public-private partnership arrangements
21. Special Purpose Vehicle or Joint Venture
22. Public-private partnership agreement
23. Functions of a Contracting Authority
24. Additional powers
25. Types of infrastructure facilities and services
Part VI – Procedures for awarding contracts
26. Feasibility study for public-private partnership
27. Pre-selection of bidders
28. Evaluation Criteria
29. Contract award for public-private partnership
30. Register of public-private partnership contracts
31. Unsolicited bids
Part VII – Divestiture and commercialization
32. Divestiture of state-owned enterprisesA state-owned enterprise shall be divested in accordance with the divestiture sequence plan or as the Cabinet may otherwise determine through the Minister.
33. Special rights of the GovernmentIn any agreement for the sale of a state-owned enterprise, the parties may agree that the Minister responsible for Finance may retain, or at any time after the date of the agreement acquire, a share in the divested enterprise, which share shall confer special rights to enable the Government in the national interest to intervene in the operations of the enterprise where such intervention is necessitated by the specific actions or undertakings of the enterprise.
34. Allotment of sharesThe shares of a state-owned enterprise shall be allotted by the Commission.
35. Obligations of ShareholdersThe shareholders in any state-owned enterprise, when so requested by the Commission, shall provide to the Commission such information as the Commission may reasonably require, subject to any prohibition or restrictions contained in any written law on the provision of such information.
36. Obligations of state-owned enterprises
37. Modes of divestiture
38. Valuation of state-owned enterprisesThe valuation of state-owned enterprises shall be performed by independent valuers who shall issue a certificate of valuation or an opinion of the value.
39. Eligible shares to membersThe shares in a state-owned enterprise shall be liable to be sold to any person whether or not such person is a citizen of Malawi. That notwithstanding, the Commission will make every effort to encourage Malawian participation in state-owned enterprise through various schemes approved by the Minister.
40. Sales of shares to members of Cabinet, etc.No member of the Cabinet or of the Commission or of a committee of the Commission and no employee of the Commission or consultant to the Commission or the spouse, child, mother, father, brother, sister or a professional or business partner or immediate family member thereof shall purchase shares or assets in a state-owned enterprise, unless the sale is by public offer of shares.
41. Established fundsAn established fund may purchase shares in a state-owned enterprise on behalf of the contributors.
42. Purchase of shares by citizens of MalawiWhere the purchasers are citizens of Malawi, shares may be offered at a discount which shall be in accordance with prescribed guidelines, and it shall be a condition of every sale of shares at a discount that the shares so purchased shall not be disposed of within two years of the date of purchase.
43. Shares not to be sold on creditThe shares of a state-owned enterprise shall not be sold on credit, unless otherwise prescribed by regulations made under this Act.
44. Negotiations of sale
45. Conversion of private companies to public companiesThe Commission may convert a state-owned enterprise scheduled for divestiture, which is not a company, into a private or public company in accordance with the provisions of the Companies Act.[Cap 46:03]
46. LiquidationLiquidation The Commission may liquidate a state-owned enterprise in accordance with the provisions of the Companies Act.[Cap. 46:03]
47. Completion of sales
48. Commercialization of specified Government departments
Part VIII – Publications, information and reports
49. Publication and records of certain information
50. Unauthorized persons not to publish or disclose information
51. Annual reports
52. Public-private partnership arrangements reportThe Commission may annually publish a report of public-private partnership arrangements to the public.
53. Progress reportsThe Commission shall, every six months, at the end of June and at the end of December, produce a report on its activities during that period, giving details of bids received and selected and other particulars and shall publish the report for sale to the public.
Part IX – Financial provisions
54. Use of proceeds
55. Funds of the Commission
56. Funds for public-private partnership development
57. Raising resources for public-private partnership arrangements
58. Minister may make available moneys from the Consolidated FundSubject to the provisions of the Public Finance Management Act, the Minister responsible for finance may make available moneys from the Consolidated Fund to the Commission or a company formed under section 8 on such terms and conditions as the Minister may determine.[Cap. 37:02]
59. Commission or Contracting Authority to keep record of costs of transactionsTo the extent possible, the Commission or the Contracting Authority, as the case may be, shall prepare a statement of its costs up to and including closing related to a particular public-private partnership arrangement, in addition to anticipated post-transaction costs based on the obligations and commitments of the Contracting Authority entering into such a public-private partnership arrangement.
60. Financial YearThe financial year of the Commission shall be the period of twelve months ending on 30th June in each year or on such other date as the Minister may specify by Order published in the Gazette.
62. Annual financial report
Part X – Miscellaneous provisions
63. Prohibition against exerting undue influence on officers
64. Settlement of disputes
65. Falsification of information
66. Administrative penalties
67. General penalties
68. RegulationsThe Minister may, on the advice of the Commission, make regulations for carrying out or giving effect to the provisions of this Act, and without prejudice to the generality of the foregoing, such regulations may prescribe—
69. Oversight of public-private partnership arrangements by regulators
70. Guidelines, policy directives or objectivesThe Minister may, on the advice of the Commission and with the approval of the Cabinet, from time to time, issue policy directions prescribing further objectives and forms of public-private partnership arrangements and the guidelines to be followed for the proper and effective implementation of the provisions of this Act, and such objectives or guidelines shall be valid for all purposes unless inconsistent with this Act and only on the extent of the inconsistency.
Part XI – Transitional provisions, repeal and savings
71. Saving of existing agreements and arrangementsSubject to section 74, where an agreement or arrangement was entered into on a date before the commencement of this Act, and that agreement or arrangement would have been a public-private partnership arrangement or direct agreement if this Act had been in operation on such a date, then the agreement or arrangement, as the case may be, shall have effect and be taken always to have had effect as if this Act was in operation when the arrangement or agreement was entered into.
72. Existing public-private partnership arrangementsAny public-private partnership arrangement of any Contracting Authority effected at any time before the commencement of this Act shall comply with the provisions of this Act within twelve months from the commencement of this Act.
73. Vesting of assets of the Privatization Commission
74. Registration of property to be transferred by the Privatization Commission
75. Legal proceedings
76. Transfer of employees
77. Repeal and savings
History of this document
01 July 2012