Malawi Ombudsman faces legal suit for ‘inaction’

Mzimba based small scale miner has given Ombudsman Tujilane Chizumila 30 days in which to determine his 16 year old case in which he is seeking compensation from the Malawi government following the seizure of his mine in 1990.

Gregory O’Mally Fundi Phiri, through lawyer George Kadzipatike of Jivason and Company, wrote the Ombudsman, Malawi’s de facto public protector, on February 18th 2013, asking her office to expedite the matter and make a determination.

“Failure of which… we will seek a judicial review of your offices inaction and an order for mandamus compelling your office to conclude the matter within a specific period,” Kadzipatike wrote.

Phiri lodged his first complaint in September 1998 but in 2003 the Ombudsman closed his case mistakenly claiming that the matter was statute-barred.

Justice Tujilane Chizumila : Malawi’s Ombundsman
Justice Tujilane Chizumila : Malawi’s Ombundsman

Kadzipatike said Phiri’s file was re-opened in or about 2008 “but up to now, no determination has been done on the matter”

Phiri is seeking millions of Malawi Kwacha for loss of income.

The Office of the Ombudsman’s Civic Education and Public Relations Officer Patrick Maulidi said in response to a Nyasa Times questionnaire that the Ombudsman cannot be taken to court to force her expedite a determination.

“If one is not satisfied with Ombudsman’s services, a complainant is free to withdraw his/her case and present it to other case handling bodies like a court of law,” Maulidi said.

In affidavits seen by  Nyasa Times, Phiri said he lodged an official complaint with the Ombudsman against the Ministry of Mines and the then Malawi Development Corporation (MDC) for forcefully taking his precious mine at Watereka in Mzimba district.

Phiri said in 1989 the Ministry of Mines grated him a prospective licence covering Rumphi and Mzimba pursuant to the provisions of the Mines and Minerals Act.

“In October 1989 my Mine was registered and later in November of that year I applied for and was granted consent by the Traditional Authority of the area to carry out mining activities.

“In December 1989, I then got permission from the Commissioner of Mines allowing me to peg or demarcate the area. The following month I engaged a Land Husbandry Officer who pegged the claim in the presence of traditional leaders as required by law,” explained.

But heavily armed Police in Mzimba accompanied by their seniors from the northern region police headquarters in Mzuzu arrested Phiri in February 1990 for illegal mining.

Phiri was released in April 1990 but in September of the same year heavily armed Police once again stormed his mine, this time accompanied by officials from MDC.

“The Commissioner of Mines then told our client that an inquiry would be instituted but when our client went back to the Mine he found that MDC was operating the said Mine. Later he then got a letter from the Mines Commissioner informing him that MDC was the rightful owner of the Mine and that his ownership was frozen,” Kadzipatike said.

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