No Tractorgate apology—State

A lawyer from the Ministry of Justice and Constitutional Affairs told the Supreme Court of Appeal on Thursday that public officers involved in the procurement and sale of 177 tractors using a Parliament-approved loan do not need to apologise.

During Thursday’s hearing at the Lilongwe High Court Registry, lawyer representing the Attorney General (AG), Apoche Itimu, insisted that public officers who include principal secretaries (PSs) cannot apologise because such an action cannot be spurred by the Ombudsman “since it is not an administrative” issue.

Last year, the Office of the Ombudsman recommended that officials involved in the transaction should apologise to Malawians for saddling them with a loan to buy equipment that was later sold to politicians, civil servants and other private sector individuals for a song.

The machinery was initially meant for smallholder farmers to help them mechanise farming and boost output.

The Ombudsman also recommended that public officers who were members of the internal procurement committee (IPC) that presided over the sale of the farm machinery should be prosecuted, among others.

But former AG Kalekeni Kaphale obtained an injunction against Ombudsman Martha Chizuma Mwangonde’s recommendations and applied for a judicial review, which resulted in Judge Fiona Mwale ruling that the Ombudsman had no jurisdiction to make such a determination.

Mwangonde appealed against the decision.

A panel of Supreme Court justices—Edward Twea, Anthony Kamanga and Lovemore Chikopa—is now set to make a judgement on the appeal having heard arguments from both sides.

Said State lawyer Itimu on Thursday:  “An apology cannot address the grievances lodged by complainants who asked that the procurement and disposal of the equipment should be looked into.”

She also insisted on arguments presented in the lower court that the Ombudsman has no jurisdiction to ‘interfere’ in Parliament’s legislative business.

Itimu also argued that there was a court remedy for those who felt that their fundamental rights had been infringed by the procurement and subsequent sale of the farm machinery.

Itimu’s stance prompted Justice Kamanga to seek clarification.

“If the recommendations by the Ombudsman cover a number of areas and one of them is that the public officers should apologise, what is the problem with that?” queried Kamanga.

He added: “Suppose all those issues—that there should be improved record-keeping, instructions to PSs being in writing are correct—what’s wrong with public officers saying we are sorry?”

But Itimu insisted that the “Constitution is very clear as to what recommendations the Ombudsman can issue and an apology is not one of them”.

The court is yet to set a date for the judgment.

Government obtained a $50 million loan from the Export and Import Bank of India for the procurement of the machinery under contention. n