2 convicted PSs to appeal: Office of Ombusman says sentence sets legal deterrent

Two principal secretaries, who have been given nine-month suspended sentence for contempt of court over Tractorgate scandal, say they will appeal against both the conviction and sentence.

Lawyer Chancy Gondwe ,who represented Principal Secretary for Agriculture Gray Nyandule Phiri and Secretary to Treasury Cliff Chiunda, has confirmed that he will soon be knocking on the doors of the Supreme Court of Appeal.

“There are some areas in the conviction we feel needs to be appealed, so too in the sentencing so yes, we will be appealing against both the conviction and the sentence,” said lawyer  Gondwe.

High Court judge Charles Mkandawire on Friday sentenced Chinunda and Nyandule Phiri to nine months in jail but suspended to two years for their failure to apologise to Malawians for a flawed procurement and disposal of tractors bought with borrowed funds.

Spokesperson for the office of the Ombudsman Arthur Semba said his office was happy with the sentencing.

“We are only agents of the law; we came here to seek legal redress. The laws of Malawi are here to protect Malawians. So, we stand to believe that justice has been delivered for the people,” he said.

He said his office would now work to ensure that all court orders in the case are implemented.

Lawyer for the respondents, Chancy Gondwe, welcomed the judgement but was quick to express dissatisfaction with some of the determinations.

On the prospect of Nyandule Phiri  and Chiunda losing their positions, Gondwe said the ruling has nothing on their status as principal secretaries.

He said: “This is not a criminal conviction but rather a civil complaint which resulted in a conviction. Hence, being civil contempt, this sentence has no bearing on their status.”

High Court in July last  year, found the two guilty for disrespecting the order in relation to the tractors’ deal bought in 2011 with a $50 million (about K37 billion) loan from Exim Bank of India.

Justice Mkandawire stated that the case demands a meaningful punishment because it is in violation of Section 12 which prescribes fundamental principles of the Constitution.

Section 12 (f) says, “All institutions and persons shall observe and uphold this Constitution and the rule of law and no institution or person shall stand above the law.”

After perusing through mitigating and aggravating factors, the court deduced that Nyandule and Chiunda committed a serious crime which puts the reputation of the court under threat.

The respondents were also found in breach of Section 12 when they expressed sheer arrogance and mockery to justice by remaining mum, not bothered to take any action, let alone acknowledge receipt of the letter addressed to them by the Ombudsman.

However, on the premises of being first offenders and compliance of the order albeit late, they were handed the custodial sentence of nine months imprisonment suspended to 24 months.

The court further established that the respondents have lost the moral compass to run such high positions. In this regard, it was recommended that the office of the President should seriously look into the matter.

The case followed investigations Ombudsman Martha Chizuma’s office instituted after a small-scale farmer in Rumphi and former member of Parliament for Dedza East, Juliana Lunguzi, lodged a complaint about the sale of farm equipment dubbed Tractorgate.

Revelations of faulty procurement and dubious disposal of the tractors and 144 maize shellers came to light in 2016. The equipment was part of Greenbelt Initiative to put about one million hectares under irrigation. However, only 77 tractors were put to use while 100 were sold.

After investigations, a report titled The Present Toiling, The Future Overburdened was issued in which the Ombudsman cited cases of gross maladministration and demanded an apology to Malawians and the prosecution of those involved in the deal.

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