Two serving principal secretaries (PSs) risk serving three years in jail or paying a fine if convicted of contempt of court should the court grant the Office of the Ombudsman its wish.
Ombudsman Martha Chizuma wants the two PSs, one for Ministry of Finance, Economic Planning and Development and the other for Ministry of Agriculture, Irrigation and Water Development, jailed for not complying with a Malawi Supreme Court of Appeal order backing her office’s demand for an apology on the flawed procurement and disposal of farming equipment using a $50 million (about K37 billion) loan from the Government of India in 2012.
The court gave the affected government ministries 60 days to comply with its decision.
In a letter dated May 13 2019 addressed to Attorney General (AG) Kalekeni Kaphale, whose office is the chief legal adviser to the government, the Ombudsman said her efforts to remind the two ministries to comply with the order have not yielded results
Reads the letter in part: “As communicated in the said letters, the 60 days from 11 February 2019 when the judgement was made were lapsing on 10 May 2019. Despite this, I never received any response from the two principal secretaries nor were any directives complied with.
“This, therefore, means that as of this date, there is a contempt of court situation arisen in respect of this matter. By failing to comply with any of the directives in my report, the two officials have deprived the two complainants who initiated the investigation the fruits of their litigation.”
The letter adds that the concerned PSs have been informed of the wish of the Office of the Ombudsman to commence legal proceedings against them.
Yesterday, Chizuma could not be reached for comment while Kaphale acknowledged receipt of her letter.
The AG, however, hinted that the two controlling officers will issue a public apology to end the episode relating to what became known as Tractorgate.
He said: “We have received the letter and we are in process of apologising. I have been informed that there was just a delay in terms of writing the apologies.”
Kaphale said the apology would be issued immediately the two ministries furnish his office with drafts for vetting.
Initially, the chief government legal adviser had described the directive for a public apology as unreasonable and was favoured by the High Court of Malawi before the Ombudsman successfully appealed the decision in the Malawi Supreme Court.
The Ombudsman’s report, among others, said government procured archaic tractors from India and cautioned the National Assembly, which the report said was abused by government agencies that requested fast-tracking of debate on the loan, against authorising such loans without due-diligence.
Chizuma contended that her office acted within the law and defended the report.
She is on record as having said: “This was the first systematic investigative report we have conducted as the Office of the Ombudsman, so this is the first time we have seen a challenge on such a report by government through a judicial review.”
In February, the Malawi Supreme Court of Appeal ruled that the Office of the Ombudsman acted within its mandate by ordering the offices to comply with its order for a public apology on how they managed the procurement.
The tractors were later sold at below market value to well-connected individuals in government and politics, but Capital Hill and the Office of the Ombudsman have never looked eye-to-eye on implementing the ultimate recommendations of the report which included prosecution of officers following investigations and a public apology.
Besides the apology, the 48-paged report also specifically recommended prosecution of the members of Internal Procurement Committee (IPC) and those who “presided over the sale of the farm machinery and benefitted from the sale should be prosecuted in accordance with the Procurement Act”.
The report also detailed how the law was broken in the sale of some 177 tractors government had initially procured through a loan from India in 2012.
Prominent beneficiaries of the disposed equipment included former vice-president Khumbo Kachali, Speaker of Parliament Richard Msowoya, immediate past Minister of Industry, Trade and Tourism Francis Kasaila and incumbent director general of State Residence Peter Mukhito.
The tractors were intended for distribution to agriculture development divisions (ADDs) to enable poor smallholder farmers graduate to mechanisation by hiring the equipment . Out the 177 tractors, only 77 were distributed to ADDs while 100 were sold.