Court convicts 2 PSs, jobs at risk

The High Court has convicted two principal secretaries (PSs) for failing to comply with a court order to issue public apologies for a flawed procurement and disposal of tractors bought with borrowed funds.

Delivering his ruling in Lilongwe yesterday, presiding judge Charles Mkandawire said he found PS for Agriculture, Irrigation and Water Development Grey Nyandule Phiri and Secretary to the Treasury Cliff Chiunda guilty for disrespecting a Malawi Supreme Court of Appeal order in relation to the procurement and disposal of farm equipment bought with a $50 million (about K37 billion) loan from India in 2011.

The judge, who has since convicted the two, has set August 5 2019 for sentencing the duo.

Mkandawire said: “It was incumbent upon the second applicant [PS for Agriculture] to respect the court order to come to court on the 12th of July 2019. That said, even if it was brought to my attention, it did not change things because the second applicant had not fully complied with the court’s order.

“This [the published apology] was just a mockery of justice, unfortunately one cannot trick justice.

“I find it as a fact and I am satisfied to the requisite standard that the order of the Malawi Supreme Court of Appeal given on 11th of

February 2019 has indeed been disobeyed by the first [Secretary to the Treasury] and second applicants. I find both the first and second applicants guilty of contempt of court and are both convicted.”

Reacting to the judgement, Ombudsman Martha Chizuma said she was satisfied.

She said the adoption of the 1994 Constitution meant that Malawi made a decisive break from abuse of power and position which was institutionalised in the single-party era.

Chizuma said accountability, transparency and rule of law are now part the constitutional framework; hence, any person, especially public officers who ignore these principles, do so at their own risk.

He said: “The Office of the Ombudsman is one accountability institution that is established by the Constitution to help the citizens of this country to hold the government accountable. Ignoring the Ombudsman is unconstitutional.

“But it is even dangerous to ignore the highest court of the land that directed full compliance of Ombudsman directives. If, as a nation, we can allow Supreme Court orders to be disobeyed then where is the hope for justice?”

Attorney General Kalekeni Kaphale said he was abroad and yet to get a copy of the judgement.

But Malawi Law Society (MLS) honorary secretary Martha Kaukonde said implications of the public officers are that the two can be sentenced to prison, made to pay a fine or given a suspended sentence depending on the mitigating factors.

However, private practice lawyer Justin Dzonzi said the ruling could have various implications, including a fine, jail term or loss of their jobs.

He said: “When one is convicted of contempt of court in the criminal case, then it automatically follows that criminal sanctions will have to come. In this case, one could be fined or imprisoned and obviously that conviction alone is a criminal record and under the Public Service Act, that might be a ground for disciplinary action.

“But when the conviction leads to a civil case, then you might require perhaps restitution and punishment by way of ordering them to pay damages and telling them to do certain things. But again, in my view, this could also be ground for further sanctions such as dismissal.”

The case followed the Ombudsman’s application in the wake of a Malawi Supreme Court of Appeal ruling of February 11 2019 for the two public officers to issue a public “apology for buying equipment that was archaic and sitting idle and deteriorating, thus, unnecessarily indebting Malawians and for the illegal selling of the tractors”.

While Nyandule-Phiri published a public apology once on July 12 2019 “for buying equipment that was archaic and sitting idle and

deteriorating, thus unnecessarily indebting Malawians and for the illegal selling of the tractors”, Chiunda did not.

The Ombudsman’s directive, upheld by the Supreme Court, was for the apology to run for 21 consecutive days in both daily newspapers and also had to run for 21 consecutive days during prime time on one public and one private radio and television.

Besides the demand for a public apology, in her 48-page report titled The Present Toiling, The Future Overburdened, the Ombudsman also recommended prosecution of the members of the internal procurement committee (IPC) and “those who presided over the sale of the farm machinery and benefited from the sale should be prosecuted in accordance with the Procurement Act”.

In 2017, the High Court favoured the Attorney General whose office, as chief legal adviser to the government, successfully challenged the report and its findings on the basis that the Office of the Ombudsman had overstepped its mandate by ordering government officials to apologise for flawed procurement of tractors and their subsequent sale.

The Attorney General further challenged the authority of the Ombudsman to demand the said apology, describing the same as “unreasonable”. The Attorney General also faulted the Ombudsman for allegedly dictating the course of action on how Parliament should conduct its legislative business after Chizuma recommended that the National Assembly should exercise caution when dealing with similar loan authorisation bills.

But the Ombudsman, through their appointed legal counsel, Modecai Msisha, appealed against the ruling in the Supreme Court of Appeal in 2017.

The farm equipment was purchased using part of the $50 million line of credit from Export-Import Bank of India with the intention to mechanise agriculture in the country.

The farm machinery in question included 100 tractors and 144 maize shellers. In total, 177 tractors were bought for distribution to agriculture development divisions (ADDs) to enable poor smallholder farmers graduate to mechanisation by hiring the equipment. However, only 77 tractors were distributed to ADDs while 100 were sold.