The High Court in Lilongwe has ruled that the office of Ombudsman overstepped its mandate when it ordered government officials to apologise for flawed procurement of tractors from India and their subsequent sale.
The ruling, which follows a judicial review on the determination by the Ombudsman, was delivered on Friday by Justice Fiona Mwale in the chamber and marks victory for the Attorney General (AG) Kalekeni Kaphale.
Ministry of Justice spokesperson Apoche Itimu, who also represented the AG in the matter, confirmed the legal victory.
In an interview, she said the court had agreed with the AG’s position that the Ombudsman had overstretched her mandate.
“The judge ordered that the Ombudsman had no jurisdiction to make the said determinations because the complainants had an alternative remedy in court, which had not been pursued, and the law is that the Ombudsman can only make determinations on cases where one does not have a remedy at court. She, therefore, proceeded to quash the determinations as we prayed for,” said Itimu.
Ombudsman Martha Chizuma Mwangonde, who was not at the court in person, said she was surprised by the ruling but she will need to study details of the judgement.
“Our lawyers were at court.
I will ask for the full content of the report before making much comment. Suffice to say the outcome is different from what we expected,” said Mwangonde.
The AG had challenged the authority of the Ombudsman for calling for officials to apologise to the people of Malawi as unreasonable, saying there has been no independent assessment to verify claims by the Ombudsman’s report that government procured archaic tractors from India.
He also faulted the Ombudsman for dictating the course of action on how Parliament conducts its legislative business after she recommended that the National Assembly should exercise caution when dealing with similar loan authorisation bills.
The Ombudsman had further observed that Parliament had ignored its own standing orders, which were being abused by government to fast track poorly scrutinised laws.
Apart from the apology, the 48-page report by the Ombudsman specifically called for prosecution of the officials who were members of the internal procurement committee (IPC) and “presided over the sale of the farm machinery and benefitted from the sale should be prosecuted in accordance with the Procurement Act,” plus an apology by three principal secretaries involved.
Kaphale applied for a judicial review on behalf of the principal secretaries for ministries of Finance and Agriculture, and the National Assembly but Mwangonde previously said she stands by her report.