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Road Tolls Without Toll Roads and Enabling Legislation

Toll station
Road Tolls Without Toll Roads and Enabling Legislation

Written by Chisala, Maxwell L

Motorists on the roads of Malawi will soon be paying vehicle tolls on roads where previously there were none ostensibly to ‘boost revenue collection’ for the road infrastructure construction and maintenance in the country. The Roads Fund Administration (RFA) has informed the nation of a Tolling Initiative to erect tollgates at identified suitable sites on considered economic routes along the national road network. Sites already identified as suitable for erecting tollgates include at Chingeni (in Ntcheu) and Kalinyeke (in Dedza) along the Blantyre-Lilongwe M1 road; along Mwanza-Zalewa M6 road; Blantyre-Muloza M2 road, Liwonde-Mangochi M3 road; Mchinji-Lilongwe M12 road and Mzuzu-Nkhata Bay M5 road.

After mulling over the idea for three years (and surviving on a diet of diminishing budget allocations for derelict road infrastructure), Malawi’s Road Fund Administration (RFA) was challenged by African Road Maintenance Funds Association (ARMFA) Southern Africa focal Group almost two years ago, to consider installing toll gates within its road networks in order to broaden revenue generation capacity for the fund. ARMFA said the installation of toll gates would provide another avenue for generating funds apart from depending solely on government funding, fuel levy and road taxes and diminishing roadway-related budget support from development partners. What ARMFA, apparently, did not tell Malawi is how to go about this and what was required. Malawi was not told this will require a self-sustaining road toll sector divorced from RFA where tax-based revenues for road projects, vehicle licenses and fuel levies would play no role. Nor was Malawi forewarned about not charging vehicle tolls on roads that are expanded/upgraded through government funding where there is no offer of an alternative transit route to give road-users/drivers the choice between paying for a superior toll road, constructed to expressway standards, or using the non-tolled road. Bottom-line, ARMFA was challenging Malawi to consider managing its roads as a successful business venture would, independent of tax-based revenues.

The Malawi approach to the implementation of its Tolling Initiative vastly departs from the path taken by other countries in the region and elsewhere as it veers from adopting the entire set of toll principles in implementing road toll systems. Chief among these is supporting the initiative with enabling legislation, legal and regulatory framework relevant for the development of the road toll sector to provide for the tolled-road infrastructure and the tolling of roads. The importance of an elaborate legislative framework cannot be overstated. No country in the region and elsewhere has implemented a workable and effective road tolling programme without an enabling legislative and legal framework to establish and provide for the operation of toll roads; provide for the charging and collection of tolls; provide for private sector participation in the tolling of roads; to provide for the establishment of an Administrative Authority to provide for the regulation on the Administration of Toll Roads and a Tolls Board; to define the functions and powers of the Board; to provide for the charging and the collection of toll charges; to provide for the charging and the collection of entry fees in respect of certain vehicles entering the country. The Roads Fund Administration (RFA) is itself a creation of an Act of Parliament (the Roads Fund Administration Act No.4 of 2006), an administrative authority to raise, administer and account for funds for construction, maintenance and rehabilitation of non-toll roads in Malawi. Nothing short of this would suffice for the development of a thriving road toll sector in the country.

Malawi’s approach also ignores the alternative transit route principle which defeats a road toll system’s requirement to create choice and fairness among road users. Malawi’s toll road project plans to simply construct tollgates and declare connecting roadways to the toll booths as toll roads and toll chargeable.

It is difficult to imagine a super-performing road toll sector without the productive participation or engagement of the private sector but this can only be facilitated by specific laws required to allow the public sector to contract with private entities to perform functions normally undertaken by the government and sector-specific policies, laws and regulations governing the right of the private operators to design, build, finance and operate toll roads. So it appears most imprudent to implement a road tolling initiative without a robust enabling legislation, legal and regulatory framework.

The Chingeni Toll Plaza is the first tollgate under the Tolling Initiative currently under construction and scheduled to be completed and operational by March, 2021. It is tax-payer funded (public sources of revenue were used), but so are the roadway systems to be tolled. A fact that so far appears lost on the RFA is that the absence of an enabling legislation (a toll act and toll regulations) will deny the proposed Tolling Initiative the necessary authority (laws and regulations) for establishing toll rates and details of collecting the vehicle tolls; specifying which vehicles are to pay toll on which toll roads, how the toll is collected, how toll revenues are used and how tolling is enforced (what vehicles are exempted). Was the Chingeni Toll Plaza’s construction by RFA even permitted under the law (if a serious exercise in financial probity had been undertaken)? Can RFA successfully shrug off a determined constitutional challenge to tolling roadway systems constructed/maintained/upgraded with tax-based revenues where no alternative transit route(s) for road-users are offered and tolling is not supported by any statute or enabling legislation?—preparing a Government Green Paper for the Tolling Initiative and/or securing a Cabinet Approval for it cannot be considered sufficient authority under the law for the implementation of such an over-reaching Tolling Initiative.

The road toll project, as currently planned, will only serve to drive up the cost of mobility to the motoring public and, ultimately, the entire traveling public without improving the road network service levels. What I find extremely baffling is the responsible authorities’ failure to understand the enormity of the road tolling decision (which would effectively be giving government a blank check to impose road tolls whenever and wherever it wishes over the entire road network) and that the envisaged road tolls can only be implemented under the authority of an Act of Parliament. Shouldn’t we as a nation be holding the responsible officials accountable for their lack of comprehensive technical understanding of a project they intend to implement and a paralyzing scarcity of professional seriousness with a project of this magnitude?

Contribution by: Chisala, Maxwell L.

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