The High Court in Lilongwe has handed a nine-month suspended sentence to Principal Secretary for Agriculture Gray Nyandule Phiri and Secretary to Treasury Cliff Chiunda, over snubbing a Malawi Supreme Court of Appeal order to publicly apologise for a flawed procurement and disposal of tractors bought with borrowed funds.
The suspended sentence means that the offender does not go to prison immediately, but is given the chance to stay out of trouble. If the offender is convicted of another offence during the suspension period, they are likely to serve the original custodial term in addition to the sentence they get for the new offence.
Judge Charles Mkandawire spared the two—Grey Nyandule Phiri of Agriculture, Irrigation and Water Development and Treasury’s Cliff Chiunda — from custodial sentence when he passed his sentence on Friday.
Mkandawire, 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.
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.”
The judgement was delivered in sequential phases after it was found that previous cases of similar nature were handled haphazardly.
Justice Mkandawire said it was important to look at the maximum sentence, starting of the sentence, punishment imposed in similar cases, mitigating and aggravating factors, meaningful punishment and whether the sentence should be suspended.
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.
But in 2017, the Attorney General (AG), government chief legal adviser, successfully challenged the report and its findings in court on the basis the Office of the Ombudsman overstepped its mandate by ordering government officials to apologise.
But the Ombudsman’s office, through its legal counsel Modecai Msisha, appealed against the ruling in the Malawi Supreme Court of Appeal which later upheld the directive for an apology to run for 21 consecutive days in both local daily newspapers and 21 consecutive days during prime time on one public and one private radio and television stations.
While Nyandule-Phiri published a public apology once on July 12 2019, Chiunda did not, compelling the Ombudsman to file a court application to open a case against the two PSs for failing to comply with the court order.Follow and Subscribe Nyasa TV :