Ministry of Agriculture, Irrigation and Water Development Principal Secretary (PS) Grey Nyandule Phiri and his Finance, Economic Planning and Development counterpart Cliff Chiunda on Monday faced Ombudsman Martha Chizuma in the Tractorgate court case hearing.
The three met for the first time in the High Court in Lilongwe where Justice Charles Mkandawire presided over the cross-examination and re-examination session of the case.
Mkandawire, in July last year, found the two PSs guilty of disrespecting a Malawi Supreme Court of Appeal order in relation to the tractors bought in 2011 using a $50 million (about K37 billion) loan from Exim Bank of India.
The judge adjourned the case last year for a full hearing after Attorney General (AG) KalekeniKaphale had filed an application seeking the court to consider giving the two PSs a chance to be heard before committing them to prison of contempt of court.
The higher court then ordered that the two PSs should make an apology in the media for 30 consecutive days, but the two defied the order, a development that led the court to convict them for contempt of court.
However, they were not sent to jail because of Kaphale’s application that sought court’s consideration that the case should be re-heard in their presence since they did not avail themselves for court sessions prior to the conviction.
On Monday, Chizuma was cross-examined as a witness to prove to court that Phiri and Chiunda had a case to answer for defying a court order since they did not make an apology as directed and that they did not state reasons for the delay in making the apology.
But the two PSs said they did not make the apology within the time-frame because government did not have money for publishing apologies in the print media and that they were not office-holders at the time the tractors were procured.
However, the Ombudsman’s lawyer Gloria KalebeNamondwe argued that the two were PSs at the time the court was making an order, as such, they should have complied with the order.
She said: “Laws are binding and the Ombudsman believes that they must be abided by. The two were in breach of the Constitution. They undermined the court order and put in question the existence of the office of the Ombudsman.”
But lawyer representing the two PSs, Chancy Gondwe argued that there was no contempt of court because orders could be complied with within or outside the timeframe given.
He clarified matters in an interview saying that both Chiunda and Phiri should not be considered as officials who defied court orders because government had to budget for apology publications to be carried in the media as advertisements.
He said: “The apologies were going to be carried in newspapers, and there were no immediate funds for such publications. That is why there were delays for making apologies.”
However, Ombudsman spokesperson Arthur Semba, who was also present during court proceeding and was assigned to handle media questions, brushed aside the PS’s arguments, saying: “From the perspective of the Ombudsman is that government positions are perpetual positions. So, the case is not against them as individuals, but the positions they are holding.”
Meanwhile, Mkandawire has ordered that the two sides should file submissions to court within seven days before he passes judgement on whether the two PSs should be imprisoned.
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 AG, government chief legal adviser, successfully challenged the report and its findings in court on the basis that the Office of the Ombudsman overstepped its mandate by ordering government officials to apologise.
But the Ombudsman’s office, through its legal counsel ModecaiMsisha, 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.