AG speaks on legal opinions

Attorney General (AG) Thabo Chakaka-Nyirenda says his office would not be cowed to disclose to third parties legal opinions it presents to government ministries, departments and agencies (MDAs).

He said in an interview yesterday that his office’s legal opinions, as the chief legal adviser to government, are given out under strict lawyer-client confidentiality terms and always written and founded on a point of law, with legal authorities cited in some cases.

Nyirenda said, thus, he would not stop his clients, the MDAs, from sharing legal opinions with the public, but implored that in an event his clients decide to share the same, it must be done in a manner that does not distort any legal opinion in question.

He was reacting directly to news that his office gave a “go ahead” to the controversial K128 billion fertiliser deal that the Ministry of Agriculture signed with a Romanian company, East Bridge Estate, to supply 600 000 metric tonnes (MT).

Nyirenda said: “At no point will I disown any of my legal opinions. These legal opinions are formulated after a thorough legal researches and are based on legal principles. In some situations we go as far as citing case authorities and even making reference to court judgements.

“I have been made aware of the summoning of a principal secretary responsible for technical services in the Ministry of Agriculture [Medrina Mloza Banda] before the Parliamentary Committee on Agriculture last Wednesday where the tag phrase coming out is that I approved the deal.”

He said it is common knowledge that the Ministry of Agriculture was dealing with politicians at that meeting and politics being what it is and for political expedience, the likelihood is high that the politicians that form that committee would ask questions aiming at getting responses their ears would want to hear.

Nyirenda said: “To get a true meaning of a legal opinion, it must be read in its entirety. It is not as simplistic as the Parliamentary Committee on Agriculture would question how I approved the contract”

Meanwhile, Ministry of Agriculture officials are set to appear before the Parliamentary Committee on Agriculture today to provide more information on the deal.

Committee chairperson Sameer Suleman said in an interview yesterday that the ministry officials were not prepared during an earlier meeting and were requested to come again on Friday.

He said: “We demanded a report, but what we observed was they did not come prepared. We know the importance and urgency of the issue. We know Malawians are going to pay for this fertiliser.

“We want to know how this deal was done, how was it identified and who are local representatives of this firm. They are calling it barter trade, but why is government giving them sovereign guarantees? What are these clauses for that. If we fail to supply the produce government is going to pay? It does not make sense.”

Suleman said he was aware that AG’s legal opinion remains a legal advice and, as a client, the Ministry of Agriculture was at liberty to follow it or opt otherwise.

Contract documents indicated that government, through the Ministry of Agriculture, offered East Bridge Estate to supply the fertiliser worth $124.5 million. According to the documents, the ministry had been discussing with East Bridge East since late last year and the deal was concluded last month.

The Romanian company is expected to supply 300 000 MT of Urea and 300 000 MT of NPK under a commodity exchange/barter agreement in a contract that will run until July 24 2024.

The ministry and the Romanian company signed a Sale and Purchase Agreement on December 14 2022 and then a Commodity Exchange Agreement on March 23 2023 before issuing an addendum on May 18 2023.

However, it later transpired that in September 2022, Smallholder Farmers Fertiliser Revolving Fund of Malawi (SFFRFM) signed another contract with a foreign company dealing in oil and fish products to supply fertiliser, compelling the Parliamentary Committee on Agriculture to summon the ministry.

The contract, worth $150 million (about K156 billion), was signed on September 7 2022 between government, acting through SFFRFM, and Nendongo Commercial Group, a Namibian registered firm.