By Collins Mtika
The Malawi’s Supreme court has given the Malawi government 60 days to implement directives contained in a 48-page investigation report by the Ombudsman on the infamous “tractor gate” saga.
The tractor gate saga details the manner in which the Malawi Government sold some tractors and other farm machinery to public officers and other farmers in total disregard of the country’s laws.
The scam was allegedly disguised as a routine public auction of government equipment.
In the report, Malawi’s Ombud Martha Chimuza-Mwangonde formally asked the country’s prosecuting authorities to crack down on state procurement chiefs implicated in the multibillion-kwacha “Tractor gate” scandal.
Many of the Tractorgate beneficiaries are also powerful individuals.
The Ombud’s report implicates 68 alleged beneficiaries, including the the then foreign affairs minister and ruling Democratic Progressive Party (DPP) spin doctor Frances Kasaila; the family of former president Bingu wa Mutharika; the Speaker of Parliament, Richard Msowoya; and President Peter Mutharika’s chief of staff, Peter Mukhito.
Also alleged to have benefited is Mulli Brothers, a controversial Malawian company with mutually beneficial ties to the DPP.
The scandal revolves around the IPC’s decision in 2014 to sell off 177 tractors and 144 maize shellers – intended as drought relief for small farmers – to civil servants for a song.
The tractors, purchased at MK38 million each, were sold for MK5.2 million each, raising a paltry MK624 million.
Titled “The Present, The Future Overburdened”, the report cites nine instances of gross maladministration by government officials.
These include the fact that the members of the IPC were conflicted.
No details are provided, but the clear implication is that they were beneficiaries of the sell-off.
Other government failures listed in the report are:
• The manner in which the Loan Authorisation Bill needed to raise money for the tractor purchase was rushed through parliament. Former finance minister Ken Kandodo told Parliament in 2010 that the loan would be repaid over 20 years;
• The fact that civil servants took verbal orders from the Presidency;
• Archaic financial record-keeping at the ministry of finance; and
• The procurement of obsolete and archaic equipment, described as “maladministration of the highest order”.
But when the report was released the Attorney General by way of Judicial review challenged the report and its findings stating that the ombudsman had no jurisdiction and also that some of the directives were unreasonable.
The High Court agreed with the Attorney General and ruled that the Ombudsman had no jurisdiction over the matter.
However, the Ombudsman filed 10 grounds of appeal to the Supreme Court of Appeal seeking to overturn the whole ruling by the High Court which made the office and its operations redundant.
According to the notice of appeal, copies seen by the Centre for Investigative Journalism Malawi (CIJM), the Ombuds argued that the High Court judgement deliberately ignored the weight of evidence presented in both the report and the court.
“The High Court erred in law by failing to appreciate the distinctive mandate of the Office of the Ombudsman which is to investigate and inquire as compared to the adjudicative mandate of the courts.
“As a consequence, the Court failed to appreciate the nature of the remedial action in the context of the totality of the report,” reads part of the notice filed private Lawyers Nyirenda and Msisha on behalf of the Ombudsman.
But on Monday 11th February, 2019, Supreme Justices of appeal Twea, SC, JA, Kamanga, SC, JA, and Chikopa SC, JA finally ruled in favour of the Ombudsman by stating that the Ombudsman has jurisdiction over the matter and the directives made in the report were binding.
“This is a landmark judgement in that it clarifies the Jurisdiction of the Ombudsman and also entrenches the roles of the office in as far as accountability of public resources is concerned,” the Office of the Ombudsman said in a statement released on the same day.
State procurement chiefs are unlikely to face any music, despite being implicated in Ombud report
In addition, it is understood that the government stonewalled her request for the names of those who attended the meeting.
The only known participant is the IPC chairman, Rashid Khama Mtelela, from the Office of the President and the Cabinet.
The IPC’s members are known to have been senior civil servants drawn mainly from the president’s office and the agriculture ministry.
The Ombud concludes: “The officials who were members of IPC presided over the sale of the farm machinery and benefited from the sale should be prosecuted in accordance with the Procurement Act.
“I will write the Director of Public of Prosecutions in accordance with section 126 (c) of the constitution of the Republic of Malawi.”
Section 19 of the Procurement Act stipulates that any person “who sits on an IPC and acquires an interest in a matter that is to be determined, needs to declare their interests and recuse themselves and are not to take part in the deliberations”.
If convicted, the public servants would presumably lose their jobs. But the criminal sanctions are weak: a $60 fine and or two years in jail.
