CHAPTER 66:05
FISHERIES CONSERVATION AND MANAGEMENT

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
ADMINISTRATION

   3.   Director of Fisheries and fisheries protection officers

   4.   Honorary fisheries officers

   5.   Fisheries Advisory Board

   6.   Functions of the Board

PART III
LOCAL COMMUNITY PARTICIPATION

   7.   Purposes of this Part

   8.   Fisheries management agreement

   9.   Minister may make rules

PART IV
REGISTRATION OF LOCAL REGISTRABLE FISHING VESSELS

   10.   Registration of registrable local fishing vessels

   11.   Control of fishing by registrable local fishing vessels

PART V
FOREIGN FISHING VESSELS

   12.   Fishing by foreign fishing vessels prohibited without a licence

   13.   Notification of fish on board by foreign fishing vessels entering fishing waters

PART VI
FISHING LICENCES, CONDITIONS AND OTHER CONTROLS

   14.   Prohibition of commercial fishing without a licence

   15.   Grant of fishing licences and conditions relating thereto

   16.   Illegal holding of fish

   17.   Stowage of gear

   18.   Transhipment and export of fish

PART VII
SPECIAL ARRANGEMENTS

   19.   Fisheries research permits, etc.

PART VIII
AQUACULTURE

   20.   Establishment and operation of aquaculture establishment

   21.   Aquaculture permits

PART IX
FISHERIES FUND

   22.   Establishment of Fisheries Fund

   23.   Fund to vest in Minister

   24.   Advances to the Fund

   25.   Objects of the Fund

   26.   Application of the Fund

   27.   Books and other records of account, audit and reports of the Fund

   28.   Holdings of the Fund

   29.   Financial year

PART X
ENFORCEMENT

   30.   General powers of fisheries protection officers relating to fishing vessels

   31.   Powers of inspection

   32.   Powers of search, seizure, demolition and arrest

   33.   Warrant to enter a dwelling place

   34.   Fisheries protection officer to give receipt

   35.   Control of weirs

   36.   Powers of fisheries protection officers and convention fisheries officers to enforce conventions

   37.   Indemnity

   38.   Security for release of fishing vessel

   39.   Disposal of seized fish and other perishables

   40.   Persons arrested, etc., to be brought before Court

PART XI
PROHIBITIONS AND OFFENCES

   41.   Prohibition of transfer, etc., of fish

   42.   Prohibited fishing methods

   43.   Pollution, etc., of rivers, streams, lakes or other parts of the fishing waters

   44.   Obstruction, etc., of fisheries protection officers

   45.   Offences, penalties and proceedings

PART XII
COURT PROCEEDINGS, ADMINISTRATIVE PROCEEDINGS AND PENALTIES

   46.   Jurisdiction of magistrates courts

   47.   Convention offences

   48.   Liability of members of companies, etc.

   49.   Forfeiture of licence, permit or registration

   50.   Administrative penalties

   51.   Detention or forfeiture of fishing vessel on failure to pay fine

PART XIII
INTERNATIONAL COOPERATION IN FISHERIES

   52.   Fisheries access agreements

   53.   Cross-border management

   54.   Regional fora

   55.   Implementation of agreements

PART XIV
MISCELLANEOUS

   56.   Applications, fees and charges

   57.   Suspension or cancellation of registrations, licences or permits

   58.   Appeals against suspension, cancellation or variation of registrations, licences or permits

   59.   Fishing districts and district fees

   60.   Statistical information

   61.   Regulations

   62.   Repeal and Savings

   63.   Transitional

25 of 1997
G.N. 77/1997

An Act to make provision for the regulation, conservation and management of the fisheries of Malawi and for matters incidental thereto or connected therewith

[1ST OCTOBER 1998]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Fisheries Conservation and Management Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “aquaculture establishment” means any area, enclosure, impoundment, premise or structure set up or used on or in land or water for the cultivation of freshwater fish and includes any cage or raft or other structure used for the cultivation of fish;

   “Board” means the Fisheries Advisory Board established under section 5;

   “commercial fisherman” means—

   (a)   in the case of an individual, a person who is engaged or intends to engage in fishing for sale throughout the year or a specified season or part of a season each year and who relies on his fishing activities for part of his income; or

   (b)   in the case of a corporate body or association of persons, one that has an appreciable investment in the fishing industry or intends to make one;

   “commercial fishing” means, taking fish for sale;

   “convention” includes a treaty, agreement or other arrangement;

   “convention area” means, in relation to any bilateral or multilateral convention, the area to which the convention relates;

   “convention fisheries officer” means a person appointed by the government of another country to enforce, or having power under the laws of another country to enforce, a convention that provides for the safeguarding or conduct of fishing operations or operations ancillary thereto to which Malawi is a party;

   “convention fishing vessel” means a fishing vessel registered in a country which is a party to a convention to which Malawi is also a party;

   “Director” means the Director of Fisheries appointed pursuant to section 3;

   “fish” means any vertebrate fish or any aquatic crustacean, mollusc or other shellfish or other coldblooded aquatic animal, whether alive or dead, and their young, fry, eggs or spawn and shells and parts thereof but does not include any reptile;

   “fisheries protection officer” means the Director and any of the fisheries protection officers referred to in section 3 (7);

   “fishing” means—

   (a)   the catching or taking of fish;

   (b)   any other activity which can reasonably be expected to result in the catching or taking of fish; or

   (c)   any operation on water in support of or in preparation for any activity described in paragraphs (a) and (b);

   “fisheries management authority” means any local community organization established for the purposes of promoting local participation in the conservation and management of fisheries in Malawi;

   “fishing licence” includes a fishing permit issued under this Act;

   “fishing vessel” means any vessel, of whatever size and in whatever way propelled, used in fishing operations or for the processing, storage or carriage of fish or any operation (including transhipment of fish) ancillary thereto, but does not include any vessel used for the transport of fish or fish products as part of a general cargo;

   “fishing waters” means—

   (a)   all waters within the land borders of Malawi capable of supporting fish; and

   (b)   those parts of Lake Malawi over which Malawi exercises sovereignty;

   “foreign fishing vessel” means any fishing vessel other than a local fishing vessel or a convention fishing vessel;

   “forest officer” has the same meaning as in the Forest Act;

   “Fund” means the Fisheries Fund established under section 22;

   “large scale commercial fisherman” means a commercial fisherman prescribed as such;

   “local fishing vessel” means any fishing vessel—

   (a)   wholly owned by one or more persons ordinarily resident in Malawi; or

   (b)   wholly owned by a company, society or association of persons incorporated in or established under the laws of Malawi and controlled by one or more persons ordinarily resident in Malawi;

   “master”, in relation to a fishing vessel, includes the person in command or in charge of the fishing operations on board the vessel;

   “processing”, in relation to fish, includes cleaning, filleting, icing, freezing, canning, salting, smoking, cooking, pickling, drying or otherwise preserving or preparing fish by any method;

   “processing establishment” means any premises or vessel on or in which any fish is processed or stored but does not include any restaurant, hotel or eating house or any premises where fish is prepared and stored for sale by retail to the public;

   “registrable vessel” means a vessel prescribed as being subject to registration under this Act;

   “small scale commercial fisherman” means a commercial fisherman other than a large scale commercial fisherman;

   “transhipment of fish” includes the passing of fish from one fishing vessel to another, whether or not the fish has first been taken on board the vessel from which the fish is passed;

   “vessel” means a steamer, motor vessel, launch, boat, canoe, hovercraft, submersible or floating craft of any description;

   “wildlife officer” has the same meaning as in the National Parks and Wildlife Act.

PART II
ADMINISTRATION

3.   The Director of Fisheries and Fisheries protection officers

   (1) There shall be appointed in the public service an officer to be designated as the Director of Fisheries (in this Act otherwise referred to as the “Director”) and other officers subordinate to him who shall be responsible for—

   (a)   the conservation of fish stocks;

   (b)   the taking of such measures as he may consider appropriate for the protection of fish stocks from the effects of pollution and siltation and from the effects to fish stocks of measures taken to eliminate or control pollution and siltation;

   (c)   the assessment of fish stocks and the collection of statistics;

   (d)   the development and management of fisheries;

   (e)   the monitoring, control and surveillance of fishing operations;

   (f)   subject to section 6, the preparation and periodic review of fisheries management plans and the submission of such plans to the Board and to the Minister;

   (g)   the regulation and control of fishing operations, including aquaculture and operations ancillary thereto;

   (h)   the issue, variation, suspension and revocation of permits and licences for fishing, aquaculture, transhipment and other activities for which permits or licenses are required under this Act;

   (i)   the collection of fees in respect of permits and licences and registration of fishing vessels;

   (j)   the making of such reports as he shall consider appropriate or as the Minister may require;

   (k)   any other matter that shall require administration under this Act.

   (2) Subject to subsection (3), the Director may, in writing, authorize any public officer to exercise any or all of the powers of the Director, either concurrently with him or in his absence subject to such conditions, including territorial restrictions, as the Director may stipulate in the authorization.

   (3) The Director shall personally exercise the powers provided for under section 50.

   (4) In the performance of his duties under this Act, the Director shall be subject to the general and special directions of the Minister.

   (5) A direction under subsection (4) may include a requirement that a category of fishing licences shall be referred to the Minister before the grant of such licence.

   (6) This Act shall be enforced by fisheries protection officers, acting subject to the direction of the Director and, for that purpose, fisheries protection officers shall have the powers set out in sections 30, 31 and 32.

   (7) For purposes of this Act, the following persons shall be fisheries protection officers—

   (a)   fisheries officers in the Department of Fisheries;

   (b)   members of the Malawi Police Force;

   (c)   forest officers;

   (d)   wildlife officers;

   (e)   environmental officers;

   (f)   persons in command or in charge of any vessel, aircraft or hovercraft of the armed forces of Malawi or of the Government of Malawi;

   (g)   such other public officers as the Minister may designate by notice published in the Gazette; and

   (h)   any person authorized by or acting under the orders of any of the persons specified in paragraphs a, b, c, d, e, f and g.

   (8) The Director of Public Prosecutions may in writing nominate, by rank, any officer or class of officers of the Department of Fisheries to undertake and prosecute criminal proceedings in respect of an offence committed under this Act.

4.   Honorary fisheries officers

   (1) The Director may, by notice published in the Gazette, appoint suitable persons to be honorary fisheries officers to assist in the carrying into effect of the provisions of this Act.

   (2) The appointment of an honorary fisheries officer shall be—

   (a)   made for a period of three years but shall be renewable; and

   (b)   subject to such conditions as shall be prescribed or as the Director shall otherwise impose in the instrument of appointment.

   (3) Honorary fisheries officers shall exercise such of the powers of fisheries protection officers as shall be prescribed in the instrument of appointment.

5.   Fisheries Advisory Board

   (1) There is hereby established a board to be known as the Fisheries Advisory Board (in this Act otherwise referred to as the “Board”) which shall consist of—

   (a)   a Chairman appointed by the Minister;

   (b)   a Vice-Chairman elected by and from among members of the Board;

   (c)   the following ex officio members—

      (i)   the Principal Secretary responsible for natural resources;

      (ii)   the Director;

      (iii)   the Principal Secretary responsible for community services, or his designated representative;

      (iv)   the Principal Secretary responsible for agriculture, or his designated representative;

      (v)   the Principal Secretary responsible for research and environmental affairs, or his designated representative; and

      (vi)   the Principal Secretary responsible for irrigation, or his designated representative;

   (d)   three members nominated by and from among small scale commercial fishermen and appointed by the Minister;

   (e)   three members nominated by and from among fisheries protection officers and appointed by the Minister;

   (f)   one member nominated by and from among large scale commercial fishermen and appointed by the Minister;

   (g)   one member nominated by and from among fish traders and appointed by the Minister; and

   (h)   three members appointed by the Minister from the general public and one of whom shall be a person knowledgeable in consumer concerns.

   (2) Where there is no association representing any of the persons referred to in paragraphs (d), (e), (f) or (g) of subsection (1), the members shall be nominated by the Director after appropriate consultations with fisheries protection officers, fishermen or fish traders, as the case may be.

   (3) For the purpose of carrying out its functions under section 6 (a), the Board shall appoint a technical sub-committee from among the members of the Board, excepting the Director, and such subcommittee shall have the quorum provided for in subsection (10) and may advise the Director directly on behalf of the Board.

   (4) A member of the Board shall, subject to subsections (5) and (6), serve for a term of three years and shall be eligible for reappointment.

   (5) An appointed member of the Board, other than an ex officio member, may resign his office at any time by notice, in writing, addressed to the Minister.

   (6) The Minister may remove from office any member of the Board, other than an ex officio member, if the Minister is satisfied that the member—

   (a)   has become insolvent or has assigned his estate for the benefit of, or made a composition or other arrangements with, his creditors;

   (b)   has been absent from three consecutive meetings of the Board without the approval of the Chairman or without other valid cause;

   (c)   has been convicted of an offence under this Act;

   (d)   has been convicted by a competent court of a criminal offence and sentenced to imprisonment for not less than six months, without the option of a fine, whether or not such sentence has been suspended, and has not received a free pardon;

   (e)   is otherwise incapacitated; or

   (f)   has financial or other interest that is likely to affect prejudicially the exercise and performance by him of his functions as a member of the Board; and

   (g)   appointed under paragraphs (d), (e), (f) or (g) of subsection (1), has ceased to be a small scale fisherman, large scale fisherman, fish trader or fisheries protection officer, as the case may be.

   (7) On the occurrence of a vacancy in the membership of the Board, the Minister shall appoint a new member for the remainder of the term of the vacating member.

   (8) The membership of the Board as first and subsequently appointed and every change in the membership thereof shall be published in the Gazette.

   (9) Half of the members of the Board shall constitute a quorum.

   (10) The Board may, in addition to the sub-committee provided for in subsection (3), appoint and delegate functions to other subcommittees of the Board the quorum for meetings of which shall be the chairman and the secretary of the sub-committee and half of the remaining members thereof.

   (11) A public officer nominated by the Director shall be the secretary of the Board.

   (12) A member of the Board, technical sub-committee or subcommittee shall be paid such allowances as the Minister may determine.

   (13) Subject to this Act, the Board may regulate its procedures and meetings in such manner as it shall consider fitting.

6.   Functions of the Board

   The Board shall advise the Minister generally on the development, administration, conservation and management of the fisheries of Malawi and shall in particular—

   (a)   consider and advise on fisheries management plans and reviews of the plans prepared by the Director prior to the submission of such plans or reviewed plans to the Minister;

   (b)   consider and advise on proposals for the introduction of measures prohibiting or restricting the catching of species of fish;

   (c)   consider and advise on proposals for the enactment of legislation that may affect the fishing industry;

   (d)   consider and advise on proposals for agreements or arrangements to be entered into pursuant to section 52 and proposals for the entry into or accession to conventions that may relate, wholly or in part, to fishing matters;

   (e)   consider matters referred to the Board and advise the Government thereon;

   (f)   submit such proposals to the Government as it shall consider appropriate;

   (g)   have such other functions and duties as the Minister may, from time to time, prescribe.

PART III
LOCAL COMMUNITY PARTICIPATION

7.   Purposes of this Part

   The purpose of this Part is to provide for local community participation in conservation and management of fisheries in Malawi; and

8.   Fisheries management agreement

   (1) For proper management of fisheries, the Director may enter into a fisheries management agreement with a fisheries management authority providing for—

   (a)   a management plan; and

   (b)   assistance to be provided by the Department of Fisheries.

   (2) Subject to performance of unfulfilled obligation under a fisheries management agreement to the right of third party, a fisheries management agreement may be terminated by either party.

   (3) In the event of any dispute arising under a fisheries management agreement, the matter shall be referred to the Minister:

   Provided that any party aggrieved with the decision of the Minister may apply to the High Court for review of the decision.

9.   Minister may make rules

   (1) The Minister may, on the recommendation of the Board, make rules for the better carrying into effect of the purposes of this Part.

   (2) Without prejudice to the generality of subsection (1), the rules may—

   (a)   provide for conservation and management of fisheries;

   (b)   facilitate the establishment of fisheries management authorities for the benefit of the local communities;

   (c)   encourage District Councils, non-governmental organizations, the private sector and other relevant institutions to contribute towards provision of fisheries extension services, as well as establishment and management of aquaculture, in accordance with guidelines provided by the Department of Fisheries;

   (d)   provide for declaration of endangered species and their management;

   (e)   authorize payments of grants or bonus out of public funds for encouragement of fisheries;

   (f)   prescribe a mechanism for sharing costs and benefits between the Department of Fisheries and fisheries management authorities in regard to confiscated fisheries produce; and

   (g)   provide for procedure to be followed with regard to registration of local registrable fishing vessels and licensing of persons to be engaged in commercial fishing.

PART IV
REGISTRATION OF LOCAL REGISTRABLE FISHING VESSELS

10.   Registration of local registrable fishing vessels

   (1) Every owner of a local registrable fishing vessel who intends to use the vessel for fishing shall apply to the Director for registration in the prescribed manner.

   (2) A vessel shall not be registered under this section unless—

   (a)   it has been registered, if so required, under the Inland Waters Shipping Act and otherwise complies with the requirements of that Act;

   (b)   the vessel carries such identification markings as may be prescribed;

   (c)   the vessel carries such equipment and complies with such other requirements as shall be prescribed; and

   (d)   the owner of the vessel has supplied such information and complied with such other requirements as may be prescribed.

   (3) The Director may revoke a registration under this section if the registered vessel falls into delinquency in relation to any of the requirements of subsection (2) but shall restore such registration on being satisfied that the delinquency has been remedied.

   (4) The registration of a registrable local fishing vessel shall subject to subsection (5), be valid for one year or such shorter period as may be stipulated in the registration certificate.

   (5) A registration shall not be transferable except as may be prescribed.

   (6) This section shall apply to foreign fishing vessels if so prescribed and, where it is so applied, no foreign fishing vessel shall be used for commercial fishing in the fishing waters unless it is registered under this section.

   (7) The Director shall maintain a register of local registrable fishing vessels in which he shall register such particulars of vessels as may be prescribed.

11.   Control of fishing by registrable local fishing vessels

   (1) No local registrable fishing vessel shall be used for commercial fishing in the fishing waters unless it is registered under section 10 and the person using the vessel, or a person working on his behalf, is authorized so to fish by a licence granted under Part VI.

   (2) Where a local registrable fishing vessel is used in contravention of subsection (1), the master, owner, charterer or hirer of the vessel shall be guilty of an offence and liable to a fine not exceeding K50,000 and to imprisonment for ten years and to a further fine of K200 per day for each day that the offence continues after conviction.

PART V
FOREIGN FISHING VESSELS

12.   Fishing by foreign fishing vessels prohibited without a licence

   (1) No foreign fishing vessel shall be used for commercial fishing in the fishing waters unless the owner or charterer thereof is authorized to fish by a licence granted under Part VI of this Act.

   (2) Where any fishing vessel is used in contravention of subsection (1), the master, the owner and the charterer shall be guilty of an offence and liable to a fine of not less than K20,000 and not exceeding K1,000,000 and imprisonment for ten years and to a further fine of K200 per day for each day that the offence continues after conviction.

13.   Notification of fish on board by foreign fishing vessels entering fishing waters

   (1) The master of a foreign fishing vessel that has fish on board shall—

   (a)   prior to entry of the vessel into the fishing waters; or

   (b)   prior to the vessel leaving an area of the fishing waters in which the owner or charterer is licensed to fish, notify a fisheries protection officer of the amounts and descriptions of fish on board the vessel.

   (2) A master who fails to give the notification required under subsection (1) shall be guilty of an offence and liable to a fine not exceeding K50,000 and to imprisonment for ten years.

   (3) The giving of a notification under subsection (1) shall not of itself constitute a defence to a prosecution for an offence under section 16.

PART VI
FISHING LICENCES, CONDITIONS AND OTHER CONTROLS

14.   Prohibition of commercial fishing without a licence

   (1) No person shall engage in commercial fishing in the fishing waters except under the authority of a licence.

   (2) An application for a licence shall be made to the Director in the prescribed form and shall be accompanied by the prescribed fees.

   (3) A person who contravenes subsection (1) shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for four years.

15.   Grant of fishing licences and conditions relating thereto

   (1) Subject to subsection (2), the grant of fishing licence shall be in the discretion of the Director and the licence may authorize fishing generally or may confer limited authority by reference in particular to—

   (a)   the area in which fishing is authorized;

   (b)   the period, times or particular voyages during which fishing is authorized;

   (c)   the quantities, description and size of fish which may be taken; or

   (d)   the method of fishing.

   (2) Every fishing licence—

   (a)   shall specify the fishing gear that is permitted to be used for fishing by or on behalf of the licencee;

   (b)   shall not be transferable, except as may be prescribed;

   (c)   may authorize fishing either unconditionally or subject to such conditions as may appear to the Director to be necessary or expedient for the regulation of fishing, the conservation or management of fisheries in the fishing waters or for the economic benefit of Malawi and, without prejudice to the generality of the foregoing, may contain conditions as to—

      (i)   the landing of fish caught under the authority of the licence;

      (ii)   the use to which fish may be put;

      (iii)   the marking of fishing vessels used by licencee;

      (iv)   the marking of fishing gear;

      (v)   the records of fishing operations that shall be kept on board fishing vessels;

      (vi)   the navigation equipment and charts to be carried on board fishing vessels; and

      (vii)   the place or places where the licencee may carry out transhipment of fish,

and if a licence condition is contravened, the licencee or the master, as the case may be, of the fishing vessel concerned in such contravention shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for four years.

16.   Illegal holding of fish

   (1) Subject to subsection (2), no master shall take or allow to remain on board a fishing vessel, within the fishing waters, fish which has not been taken under the authority of and in accordance with a fishing licence or other licence provided for under this Act.

   (2) It shall be a defence to a prosecution for an offence arising under subsection (1) if the person charged satisfies the court that the fish was not taken or caught in the fishing waters.

17.   Stowage of gear

   (1) Where a fishing vessel is in any area of the fishing waters and the person using the vessel is—

   (a)   prohibited under this Act from fishing in that area; or

   (b)   permitted by fishing licence or otherwise to fish only for certain species or descriptions of fish in that area,

fishing gear of the fishing vessel or so much of the gear as is not required for permitted fishing, shall be stowed in such manner that it is not readily available for use for fishing or in such manner as may be prescribed.

   (2) Where this section is contravened, the master of the vessel concerned shall be guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years and to a further fine of K200 per day for each day that the offence continues after conviction.

18.   Transhipment and export of fish

   (1) The Minister may make regulations for the licensing of the transhipment or receiving of fish by fishing vessels in fishing waters or the transport from the fishing waters by any vessel of fish transhipped from any other vessel.

   (2) The regulations made under subsection (1) may apply such restrictions and conditions on the granting of licences or permits as the Minister shall consider appropriate and, in particular, may provide for—

   (a)   the areas in which transhipping may take place;

   (b)   the times when fish may be transhipped or transported; or

   (c)   the numbers of transhipments and transportations that may be undertaken and the quantities and descriptions of fish that may be transhipped or transported.

   (3) The regulations made under subsection (1) may empower the Director to impose such conditions on the grant of licences thereunder as he shall consider necessary for the regulation of the transhipment or export of fish or the economic benefit of Malawi including conditions as to the treatment on board fishing vessels of fish received on board, and different conditions may be imposed in respect of different fishing vessels or fishing vessels of different descriptions.

PART VII
SPECIAL ARRANGEMENTS

19.   Fisheries research permits, etc.

   (1) The Minister may, on the recommendation of the Director, grant a permit to an applicant authorizing fishing in the fishing waters or specified areas of the fishing waters for—

   (a)   scientific research or experimental purposes, the collection of specimens for museums, aquaria or similar institutions; or

   (b)   emergency supply of food for human beings.

   (2) An application for a permit under subsection (1) shall be made to the Director in the prescribed form and shall be accompanied by the prescribed fees.

   (3) A permit issued under subsection (1) may exempt the holder thereof from any or all provisions of this Act.

   (4) The Minister may, by notice in writing given to the holder of a permit under subsection (1)—

   (a)   revoke the permit; or

   (b)   vary or revoke the conditions to which the permit is subject or specify further conditions to which the permit is subject.

PART VIII
AQUACULTURE

20.   Establishment and operation of aquaculture

   (1) No person shall establish or operate an aquaculture establishment to which this section applies—

   (a)   otherwise than under the authority of, and in accordance with the conditions of, an aquaculture permit granted by the Director under section 21; and

   (b)   unless he has been granted rights to use water for that purpose under the Water Resources Act.

   (2) Any person who establishes or operates an aquaculture establishment in contravention of subsection (1) or harvests the products of such an establishment without the authority of the owner thereof shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for four years.

   (3) This section shall apply to such aquaculture establishments as may be prescribed by the Minister by notice published in the Gazette.

21.   Aquaculture permits

   (1) An application for an aquaculture permit shall be made to the Director in the prescribed form and shall be accompanied by the prescribed fees.

   (2) An aquaculture permit shall—

   (a)   not be transferred without the prior written consent of the Director;

   (b)   confer on the permit holder exclusive rights to harvest the products of the aquaculture establishment within the area specified in the permit;

   (c)   be subject to such conditions as appear to the Director to be necessary or expedient for the regulation of aquaculture, the management of fisheries or for the economic benefit of Malawi and, without prejudice to the generality of the foregoing, may contain conditions relating to—

      (i)   the siting, design and materials used in the construction of the aquaculture establishment;

      (ii)   sanitary conditions of fish and fish products;

      (iii)   measures for the prevention of the escape of fish farmed for aquaculture;

      (iv)   measures for the prevention of fish diseases;

      (v)   the marketing of fish and fish products of the aquaculture establishment; and

      (vi)   measures to be taken to minimize the escape of waste products and the pollution of land and water.

PART IX
FISHERIES FUND

22.   Establishment of Fisheries Fund

   (1) There is hereby established a fund to be known as the Fisheries Fund (in this Act otherwise referred to as the “Fund”).

   (2) The Fund shall consist of—

   (a)   such sums as shall be appropriated by Parliament for the purposes of the Fund;

   (b)   advances made to the Fund under section 24;

   (c)   such sums or other assets as may be received for the purposes of the Fund by way of voluntary contributions; and

   (d)   payments made into the Fund under sections 40 (5), 45 (4), 50 (9) and 51 (2).

23.   Fund to vest in Minister

   The Fund shall be vested in the Minister and, subject to this Act, shall be administered in accordance with his directions subject to the provisions of the Finance and Audit Act.

24.   Advances to the Fund

   If in any financial year 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 Fund, the Minister responsible for finance may make advances to the Fund in order to meet the deficiency or any part thereof.

25.   Objects of the Fund

   The objects for which the Fund is established shall be the conservation, development, promotion, management and administration of fisheries and fish habitats and to start, operate and expand projects relating to management or conservation of fisheries and fish habitats.

26.   Application of the Fund

   (1) Without derogation from the generality of section 25, the Fund may be applied to—

   (a)   research and training which is calculated to promote proper management of fisheries;

   (b)   the acquisition of land, equipment, materials and other assets and the construction of buildings in order to promote the objects of the Fund;

   (c)   the cost of any scheme which the Minister considers to be in the interest of the management of fisheries;

   (d)   meeting any expenses arising from the establishment and maintenance of the Fund; and

   (e)   any purpose which the Minister considers to be in the interest of the objects of the Fund.

   (2) No personal emoluments or pensions of any public officer shall be paid out of the Fund.

27.   Books and other records of account, audit and reports of the Fund

   (1) The Minister shall cause to be kept proper books and other records of account in respect of receipts and expenditures of the Fund in accordance with the provisions of the Finance and Audit Act.

   (2) The accounts of the Fund shall be audited by the Auditor General, who shall have all the powers conferred upon him by the Finance and Audit Act.

   (3) The Minister shall cause to be prepared, as soon as practicable, but not later than six months after the end of the financial year, an annual report on all the financial transactions of the Fund.

   (4) The report under subsection (3) shall include a balance sheet, an income and expenditure account and the annual report of the Auditor General and shall be laid by the Minister before the National Assembly.

28.   Holdings of the Fund

   (1) All sums received for the purposes of the Fund shall be paid into a banking account and no amount shall be withdrawn therefrom except by means of cheques signed by such persons as are authorized in that behalf by the Minister.

   (2) Any part of the Fund not immediately required for the purposes of the Fund may, on the recommendation of the Board, be invested in such manner as the Minister, after consulting with the Minister responsible for finance, may determine.

29.   Financial year

   The Financial year of the Fund shall be the period of twelve months ending on 31st March in each year:

   Provided that the first financial year of the Fund may be a period shorter or longer than twelve months as the Minister shall determine, but in any case not longer than eighteen months.

PART X
ENFORCEMENT

30.   General powers of fisheries protection officers relating to fishing vessels

   (1) For the purpose of enforcing this Act, a fisheries protection officer may exercise the following powers with respect to any fishing vessel in the fishing waters—

   (a)   to stop the vessel;

   (b)   to require the master to stop fishing and take the fishing gear of the vessel back on board;

   (c)   to require the master to facilitate the boarding of the vessel by all appropriate means;

   (d)   to go on board the vessel and take with him such other persons as he may require to assist him in the exercise of his powers;

   (e)   to require the master, the crew or any of them to produce, and to examine and take copies of any certificate of registration, licence, official log book, official paper, article of agreement, record of fish caught and any other document relating to the vessel and to the crew or any member thereof or to any person on board the vessel which is in their respective possession or control on board the vessel;

   (f)   to require the master to appear and give any explanation concerning the vessel and any crew or any person on board the vessel and any document mentioned in paragraph (e);

   (g)   to make any search, examination or enquiry which he considers to be necessary to determine whether any provision of this Act has been contravened;

   (h)   to arrest and take, or require the master to take the vessel to any place, port or harbour in Malawi for the purpose of carrying out any search, examination or enquiry;

   (i)   in the case of any person whom he has reasonable grounds to believe is committing or has committed an offence against this Act, without summons, warrant or other process, to arrest the suspected offender and take or require the master of the vessel to take the vessel in respect of which he has reasonable grounds to believe that an offence has been committed, together with the crew thereof to a port or harbour in Malawi and to bring the crew before a competent court, or to detain the crew and the vessel in Malawi until the alleged offence has been tried;

   (j)   having regard to the safety of the vessel, to take steps to immobilize vessel seized, taken or detained in accordance with this section for the purpose of preventing the vessel being taken by any person prior to the release of the vessel under section 38 or 40 by the Court;

   (k)   in the case of any offence against sections 11, 12, or 14 or regulations made under section 61, to seize any vessel together with its equipment, stores and cargo which he believes has been used in the commission of such offence or in respect of which he has reasonable grounds to believe such offence has been committed;

   (l)   to seize any fishing gear, instrument or appliance which he believes has been used in the commission of such offence under sections 11, 12, or 14 or regulations made under section 61;

   (m)   to seize any fish which he believes has been taken or fish product produced in the commission of such offence under sections 11, 12, or 14 or regulations made under section 61; and

   (n)   to seize or take copies of any documents which he believes is relevant to any such offence under sections 11, 12, or 14 or regulations made under section 61.

   (2) A fisheries protection officer having reasonable grounds for believing that an offence has been committed against this Act may stop, board and search outside the fishing waters any foreign fishing vessel which he has reasonable belief has been used in the commission of that offence or in relation to which he has grounds to believe such offence has been committed and bring such vessel and all persons, fishing gear, fish and other things on board the vessel into the fishing waters.

   (3) In exercising the powers referred to in subsections (1) and (2), a fisheries protection officer may use such force as may be reasonably necessary.

   (4) The powers contained in this section may be exercised in respect of a fishing vessel irrespective of whether the vessel is at the time of such exercise engaged in activities or any activity in any way related to fishing.

31.   Powers of inspection

   (1) A fisheries protection officer may, for the purposes of determining whether an offence has been committed against this Act—

   (a)   require any person to produce for inspection any licence or permit required to be held by such person under this Act for doing any act or carrying out any activity which the officer sees that person doing or carrying out or believes, on reasonable grounds, to have done or carried out;

   (b)   inspect any fishing gear, fish, fish product, explosive, poison or article in such person’s possession; and

   (c)   require such person to furnish his full name and address and to produce adequate means of identification.

   (2) A fisheries protection officer may for the purpose of the enforcement of this Act—

   (a)   require any vehicle, aircraft, vessel or other means of conveyance, to stop;

   (b)   enter any vehicle, aircraft, vessel or other means of conveyance, with or without assistance, and inspect the same; and

   (c)   upon an inspection under paragraph (b), require the person in charge of the vehicle, aircraft, boat or other conveyance to—

      (i)   produce any manifest or other documents listing cargo on board; and

      (ii)   answers any question concerning such cargo or any other content of the vehicle, aircraft, boat or other conveyance.

   (3) If, upon an inspection under subsection (1) or (2), a fisheries protection officer has reasonable grounds to believe that an offence against this Act is being or has been committed, he may exercise such of the powers provided under section 32 as may be appropriate.

32.   Powers of search, seizure, demolition and arrest

   (1) Subject to section 33, a fisheries protection officer may, where he has reasonable belief that an offence is being or has been committed against this Act—

   (a)   enter and search, with or without assistance, any land, building, camp, tent or other premises or any vehicle, aircraft, vessel or other means of conveyance and open and search any baggage, pack or other thing;

   (b)   require any person to produce for inspection or copying, in whole or in part, any record or other document that the officer has reasonable grounds to believe contains any information relevant to the administration of this Act;

   (c)   seize any fishing gear, explosive, poison, chemical, machinery, equipment, vehicle, vessel, pack animal, aircraft or other thing that he has reasonable grounds to believe has been or is being used or possessed in the commission of such offence;

   (d)   seize any fish or fish product which he has reasonable grounds to believe has been, or had been attempted to be, caught, processed, traded, imported or exported or is possessed in contravention of this Act;

   (e)   demolish any construction, barrier or trap that appears to him to have been erected or constructed contrary to the provisions of this Act or take possession of the same in the name of the Government; and

   (f)   arrest without warrant any person whom he has reasonable grounds to believe is committing or has committed an offence under this Act.

   (2) Any fish, fish product, fishing gear, vehicle or other thing that may be seized pursuant to subsection (1) may be so seized whether or not any owner or person in possession or control thereof can be found.

   (3) For the purpose of carrying out the powers provided under subsection (1) (a), a fisheries protection officer may break open any hold, compartment, container or other receptacle (including any place or thing that could be used as a receptacle) on a vehicle, aircraft, vessel or any premises.

   (4) In carrying out a search under this section in any place, a fisheries protection officer may—

   (a)   use or cause to be used any data processing system at the place for the purpose of examining any data contained in or available to the system; and

   (b)   reproduce any record or cause to be reproduced from the data in the form of a printout or other intelligible output and take the printout for examining or copying and use or cause to be used any copying equipment at the place to make copies of any record or other document.

   (5) A fisheries protection officer may erect a temporary barrier across any road or place and any person approaching the barrier shall, upon being required by the officer so to do, stop and allow the officer to carry out such search of his person, vehicle, pack animal or baggage as the officer shall consider appropriate:

   Provided that such barrier shall conform to specifications laid down by the Director who shall act in consultation with other relevant authorities including more particularly those responsible for roads and road traffic.

33.   Warrant to enter a dwelling place

   (1) A fisheries protection officer may not enter a dwelling place except with the consent of the occupier or owner thereof or under the authority of a warrant issued by a magistrate.

   (2) When on an ex parte application, a magistrate is satisfied that—

   (a)   there are reasonable grounds to believe that there is in a dwelling place any thing in respect of which this Act applies;

   (b)   entry to the dwelling place is necessary for any purpose relating to the administration of this Act; and

   (c)   entry to the dwelling place has been refused or there are reasonable grounds to believe that entry will be refused,

the magistrate may at any time sign and issue a warrant authorizing the fisheries protection officer named in the warrant to enter and search the dwelling place, subject to any condition that may be specified in the warrant.

   (3) A fisheries protection officer may use such force as may be reasonably necessary to execute a warrant under this section.

34.   Fisheries protection officer to give receipt

   A fisheries protection officer who seizes any fish or other thing under section 30 or 32 shall, where feasible, give a written receipt therefor.

35.   Control of weirs

   (1) All fishing weirs shall comply with such dimensions and conditions as the Director shall prescribe.

   (2) Where any fishing weir does not comply with dimensions and conditions prescribed under subsection (1), the Director shall, if the owner or person having care and control of it can be found, direct that person to alter the weir so as to comply with such dimensions and conditions.

   (3) If a direction given under subsection (2) is not complied with within the time stipulated by the Director or, if no time is stipulated, within a reasonable time after the direction is given or if the owner of the weir or person having care or control of it cannot be found, a fisheries protection officer may enter on such land and destroy the weir or alter it to comply with the prescribed dimensions and conditions.

   (4) No compensation shall be payable to the owner of a weir altered or destroyed pursuant to this section.

36.   Powers of fisheries protection officers and convention fisheries officers to enforce conventions

   (1) For the purpose of enforcing the provisions of any convention with respect to the conduct or safeguarding of fishing operations to which Malawi is a party, a convention fisheries officer may, in relation to a convention fishing vessel, and a fisheries protection officer may, in relation to a local fishing vessel or a foreign fishing vessel, exercise anywhere within the convention area outside the fishing waters the powers under section 30.

   (2) This section shall not authorize a fisheries protection officer or convention fisheries officer to do anything not authorized by the convention which he purports to enforce nor authorize him to exercise in relation to a vessel registered in a country which is a party to the convention any power which the government of that country has informed the other parties to the convention is not to be exercised in relation to its fishing vessels.

   (3) Any person who, on any fishing vessel within the fishing waters or on a local fishing vessel outside fishing waters—

   (a)   fails without reasonable excuse to comply with any requirement imposed or to answer any question asked by a fisheries protection officer under this section;

   (b)   prevents or attempts to prevent any other person from complying with any requirement imposed or answering any question asked by a fisheries protection officer under this section; or

   (c)   obstructs any fisheries protection officer while exercising any of the powers conferred on him under this section or wilfully obstructs such officer in the exercise of any of those powers,

shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for four years.

   (4) Subsection (3) shall apply in relation to things done on a local fishing vessel in a convention area outside the fishing waters by or in relation to a convention fisheries officer who is exercising powers to enforce the provisions of the convention relating to that area as it applies in relation to things done on any fishing vessel within those limits by or in relation to a fisheries protection officer.

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