Barely days after government launched the 2017/18 Farm Input Subsidy Programme (Fisp), the High Court in Blantyre has halted any operations relating to the programme pending a judicial review.
The court’s decision follows an interim order for stay that Transglobe Produce Exports Limited obtained after it was dropped from participating in the programme.
Effectively, this could mean that the Ministry of Agriculture, Irrigation and Water Development and the Smallholder Farmers Fertiliser Revolving Fund of Malawi (SFFRFM) cannot continue to distribute coupons while suppliers may not sell the inputs under the programme.
According to the stay order, Judge Kenyatta Nyirenda has also directed the ministry and SFFRFM to “complete the public procurement process” under Fisp by allowing Transglobe to participate in it.
However, the court granted the stay on condition that the applicant (Transglobe) file an inter-partes application in respect of the stay order to be heard this Friday.
Through their lawyers, Ritz Attorneys at Law, Transglobe is, among others, seeking court relief to declare that the decision by the ministry and SFFRFM “refusing or ignoring or neglecting and/or otherwise failing” to award a contract to them contravenes or violates their right to economic activity without any legal justification and is, therefore, illegal.
Further, Transglobe wants the court to declare that the decision “ultra vires the applicant’s right” to legitimate expectations and must, therefore, be quashed.
The company’s argument is based on the premise that all key players (State agencies) in the programme gave them a go ahead to participate in the business.
The agencies include Office of the Director of Public Procurement (ODPP), the Anti-Corruption Bureau (ACB) and the Attorney General (AG).
In addition, the High Court, in judicial review case number 42 between Transglobe and the Speaker of the National Assembly, also declared there was nothing to stop the company from participating in Fisp.
A communication from ODPP dated October 6 2017 to SFFRFM chief executive officer Andy Kalinde, which The Nation has seen, confirmed the clearing of Transglobe, allowing it to participate in Fisp.
Government designated contract management for fertiliser suppliers to SFFRFM.
“As regards the matter relating to Transglobe Produce Exports Limited, we confirm that we have received clearance from relevant legal authorities… No objection has been granted for you to award the contract for supply to Transglobe as approved by your IPC [internal procurement committee],” reads part of the letter signed by director of public procurement Paul Taulo.
Minister of Agriculture , Irrigation and Water Development Joseph Mwanamvekha was not available yesterday to comment on the implications of the order on Fisp this season.
Attorney General Charles Mhango yesterday declined to comment on the matter when contacted, saying it was dangerous to do so as the issue was in court.
He said: “The matter is coming in court on Friday so I can’t comment on anything at this stage because whatever I say might influence the Judge.”
SFFRFM approved 14 companies out of the 32 that submitted their bids to supply fertiliser and seeds for the 2017/18 agricultural season, which will see about 900 000 farming families benefiting from the programme.
However, it allegedly excluded Transglobe despite being shortlisted after the Parliamentary Committee on Agriculture, Irrigation and Water development recommended that it be dropped from the list of suppliers because one of its directors is answering cases in court related to the controversial procurement of maize from Zambia.
The 2017/18 Fisp coupon distribution exercise was rolled out last week in Mchinji. Each beneficiary will get a coupon to access two bags of fertiliser and certified seed through selected agro-dealers nationwide.
Government will subside NPK and Urea fertilizers per 50 kg bag for K15 000 and K6 000 for a 5kg maize seed or sorghum while a two kilogrammes bag of legume seed will be sold at K2 050.
Transglobe was dragged to court by the State because of its alleged unlawful dealings with former Minister of Agriculture George Chaponda into the Zambia maize import last year.