The High Court in Lilongwe yesterday gave two principal secretaries a relief after it set aside their convictions for snubbing a Malawi Supreme Court of Appeal order to publicly apologise for a flawed procurement and disposal of tractors bought with borrowed funds.
Judge Charles Mkandawire spared the two—Grey Nyandule Phiri of Agriculture, Irrigation and Water Development and Treasury’s Cliff Chiunda—following an application by their lawyer Chancy Gondwe to set the proceedings aside for procedural irregularities.
The application came after Mkandawire, in July this year, found the two guilty for disrespecting the order in relation to the tractors’ deal bought in 2011 with a $50 million (about K37 billion) loan from Exim Bank of India.
But Gondwe asked the court for stay pending hearing of the two senior public officers’ side before pronouncing either custodial or noncustodial sentences against them.
Delivering his ruling yesterday, the judge vacated an order of committal of contempt of court and afforded the two an opportunity to be heard before making a fresh determination.
“This is in line with the spirit of doing substantial justice to the matter as hurried justice can, at times, lead to denied justice,” reads part of Mkandawire’s ruling.
The court further ordered the Ombudsman’s office, now the applicant in the matter, to amend its application and make the principal secretaries as respondents.
The Ombudsman was also ordered to file the application as a stand-alone case that will be given its own case number. The judge gave seven days to complete all the processes.
In an interview, Gondwe expressed delight, saying the setting aside of the order meant the court agreed with the “glaring irregularities” he had raised.
“This means our clients will now be availed an opportunity to respond to allegations made against them,” he said.
But Ombudsman Martha Chizuma, in a separate interview, said she could not immediately comment on the matter as she was yet to be served with the ruling.
The case followed investigations Chizuma’s office instituted after a small-scale farmer in Rumphi and former member of Parliament for Dedza East, Juliana Lunguzi, lodged a complaint about the sale of farm equipment dubbed Tractorgate.
Revelations of faulty procurement and dubious disposal of the tractors and 144 maize shellers came to light in 2016. The equipment was part of Greenbelt Initiative to put about one million hectares under irrigation. However, only 77 tractors were put to use while 100 were sold.
After investigations, a report titled The Present Toiling, The Future Overburdened was issued in which the Ombudsman cited cases of gross maladministration and demanded an apology to Malawians and the prosecution of those involved in the deal.
But in 2017, the Attorney General (AG), government chief legal adviser, successfully challenged the report and its findings in court on the basis the Office of the Ombudsman overstepped its mandate by ordering government officials to apologise.
But the Ombudsman’s office, through its legal counsel Modecai Msisha, appealed against the ruling in the Malawi Supreme Court of Appeal which later upheld the directive for an apology to run for 21 consecutive days in both local daily newspapers and 21 consecutive days during prime time on one public and one private radio and television stations.
While Nyandule-Phiri published a public apology once on July 12 2019, Chiunda did not, compelling the Ombudsman to file a court application to open a case against the two PSs for failing to comply with the court order.