The Office of the Ombudsman has faulted the Legal Affairs Committee of Parliament, accusing it of flouting the law on procedures when dealing with reports submitted to it.
The bone of contention is the report titled Malawi’s Unhealed Wounds which the Ombudsman submitted to the committee as mandated by the Constitution, but the office alleges that the committee started tampering with it to the extent of crafting new recommendations.
The report emanated from a year-long investigation which alleged maladministration involving the operationalisation and closure of the National Compensation Tribunal (NCT), leaving 24 000 claimants of the atrocities of the one-party State under Malawi Congress Party (MCP) not compensated despite their complaints being declared legitimate.
After the Ombudsman submitted the report to Legal Affairs Committee last year, the Attorney General (AG) did not act on the recommendations that the AG’s office negotiates settlement with the claimants’ representatives in the presence of a mutually agreed upon mediator.
However, it was not the Ombudsman’s order to reconvene the NCT which was repealed in 2004.
But the Ombudsman gave a time-frame for an agreement to be reached between the two parties and that a report on the same be submitted to the office by March 31 this year.
However, according to a letter dated December 7 2018 addressed to Legal Affairs Committee chairperson Maxwell Thyolera, Ombudsman Martha Chizuma said the AG and officers from the Ombudsman’s Office were summoned on September 20 2018 to explain on the recommendation.
She said the committee acted outside its mandate and the approach taken by the committee was illegal.
Said Chizuma: “At a more broader level is that the committee’s failure to frown at the deliberate non-compliance of the law by the Attorney General effectively makes the office of the Ombudsman irrelevant and undignifies the Constitution which is the supreme law of Malawi.”
She said she was reliably informed that instead of inquiring from the AG on his failure to comply with the report, the committee went ahead and started looking at the merits and demerits of the recommendations in the report and even went further to craft own recommendations which was against the law.
Writes the Ombudsman: “It is neither the committee’s nor the respondent’s place to discuss the merits or demerits of the directives or recommendations made as this is the function of the High Court. You are only supposed to enforce.”
The Ombudsman said legally, her office’s directives and recommendations were binding and compelling and could only be reviewed by the High Court if the respondents were not satisfied.
The AG has previously challenged a report of the Ombudsman, Tractorgate Report which had recommended that those who bought tractors for a song when they were procured with a government loan should give them back.
Chizuma said the committee should have found out why government was paying former Malawi Young Pioneers (MYPs), who were allegedly agents of terror, and not the victims in the Malawi’s Unhealed Wounds report as this gave a wrong impression that government cared more for perpetrators than victims.
In an interview yesterday, Thyolera confirmed having received a verbal complaint from the Ombudsman on the conduct of the committee when the Attorney General was summoned.
“I would like to see the letter first before I respond to the request [to recall the Attorney General],” he said.
The returnees and ex-detainees have petitioned the Speaker to compel the AG to act on the Ombudsman’s recommendations.
While the Attorney General Kalekeni Kaphale and Minister of Justice and Constitutional Affairs Samuel Tembenu could not be reached for comment yesterday, the Ombudsman’s report indicates that a legal opinion was issued, categorically stating that the tribunal could not be reconstituted and those aggrieved by the decisions should seek judicial review.