The Malawi Supreme Court of Appeal says the Principal Secretaries (PSs) for Finance, Agriculture and legislatlators conducted themselves in a fashion that fell below the standards expected of reasonably competent public servants in the way they dealt with the US$50 million Parliament-approved loan that was used to procure 177 tractors and other farm implements from India.
“While appreciating that the project concept that gave rise to the credit line would have greatly benefited the Malawian citizenry. However, the procurement was poorly implemented.
“And when officials realised that that the equipment procured was not fit for purposes of the project, they… devised a scheme to mitigate wastage and costs of the project. However, even this process too was poorly managed,” the Court pointed out.
In a 28-page landmark judgement, the Court faulted the way the respondents treated the Ombudsman’s Tractorgate report, saying they had issues with it from the start.
On February 11 2019 a panel of Supreme Court justices—Edward Twea, Anthony Kamanga and Lovemore Chikopa— finally ruled in favour of the Ombudsman by stating that the public protector has jurisdiction over the matter and the directives made in the report were binding.
The tractorgate saga details the manner in which the Malawi government sold some tractors and other farm machinery to public officers and other farmers in total disregard of the country’s laws.
The scam was allegedly disguised as a routine public auction of government equipment.
“We are of the considered view that except as set out … there are no cases or institutions which are beyond the Ombudsman’s jurisdiction. In practice it will of course be up to the Ombudsman to decide, for good cause, which cases and or institutions to go after. Or not,” the Court said.
The Justices also faulted the PSs for Finance and Agriculture for trying to hide behind technicalities in the Ombudsman’s report instead of trying to right the wrongs pointed in that report.
The National Assembly also got the rebuke for trying to abdicate its own rules and procedures.
“Where they do not want to they should in our view be reminded and brought onto the narrow path. It should not matter, and they should not be be allowed to so argue, like they clearly sought to in this matter…
“That the reminder came from the Ombudsman whom they want to accuse of interfering in their internal affairs. For, like we think everyone else, the Ombudsman is interested in ensuring that the National Assembly abides by the law,” they noted.
The Tractorgate scandal revolves around the IPC’s decision in 2014 to sell off 177 tractors and 144 maize shellers – intended as drought relief for small farmers – to civil servants for a song.
Government obtained a $50 million loan (K36.7 billion) from the Export and Import Bank of India for the procurement of the machinery.
The tractors, purchased at MK38 million each, were sold for MK5.2 million each, raising a paltry MK624 million.
Titled “The Present, The Future Overburdened”, theOmbudsman’s report cites nine instances of gross maladministration by government officials.
These include the fact that the members of the IPC were conflicted.
No details are provided, but the clear implication is that they were beneficiaries of the sell-off.
Other government failures listed in the report are:
- The manner in which the Loan Authorisation Bill needed to raise money for the tractor purchase was rushed through parliament. Former finance minister Ken Kandodo told Parliament in 2010 that the loan would be repaid over 20 years;
- The fact that civil servants took verbal orders from the Presidency;
- Archaic financial record-keeping at the ministry of finance; and
- The procurement of obsolete and archaic equipment, described as “maladministration of the highest order”.
But when the report was released the Attorney General by way of Judicial review challenged the report and its findings stating that the ombudsman had no jurisdiction and also that some of the directives were unreasonable.
The High Court agreed with the Attorney General and ruled that the Ombudsman had no jurisdiction over the matter.
However, the Ombudsman, through their appointed legal counsel, Modecai Msisha, filed 10 grounds of appeal to the Supreme Court of Appeal seeking to overturn the whole ruling by the High Court which made the office and its operations redundant. Supreme Court allowed the appeal to succeed.
The Ombudsman’s report also specifically called for the prosecution of the officials who were members of the internal procurement committee (IPC) and “presided over the sale of the farm machinery and benefitted from the sale should be prosecuted in accordance with the Public Procurement Act”.Follow and Subscribe Nyasa TV :