Supreme Court of Malawi gives govt 60-day ultimatum on K36.7bn Tractorgate

The Malawi’s Supreme Court of Appeal  has given government 60-days ultimatum to implement directives contained in a 48-page investigation report by the office of the Ombudsman on the infamous “tractorgate” saga on how the law was broken in the sale of some 177 tractors government had initially procured through a loan from India in 2012.

Majority of those tractors ended up in the hands of politicians, senior government officials and businesspersons and in a 48-page report, the Ombudsman Martha Chizuma Mwangonde only suggested disciplinary action against officers who approved the deals and and apology from the Ministry of Agriculture (MoA).

In the report, Chizuma-Mwangonde  stated the sale of the tractors was illegal, formally asked the country’s prosecuting authorities to crack down on state procurement chiefs implicated in the K36.7bn “Tractorgate” scandal.

The Ombudsman  report implicates 68 alleged beneficiaries, including Cabinet minister and ruling Democratic Progressive Party (DPP) official  Frances Kasaila; the family of former president Bingu wa Mutharika,  Malawi Investment and Trade Centre (Mitc) chief executive officer Clement Kumbemba  and  the Speaker of Parliament Richard Msowoya who bought a tractor at around K5 million.

Also alleged to have benefited is Mulli Brothers, a controversial Malawian company with mutually beneficial ties to the DPP.

The 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.

Ben Botolo, one of the PSs named in the report is on record to have indicated that he was unlikely to return the tractor he procured, saying the sales had all hallmarks of a normal government tender.

“I bought the tractors after reading the tender invitation in newspapers. I believed those responsible had done all the due diligence,” said Botolo indicated he procured a truck and other equipment worth K12 million.

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”, the 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 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.

According to the notice of appeal, copies seen by Nyasa Times and the Centre for Investigative Journalism Malawi (CIJM), the Ombudsman argued that the High Court judgement deliberately ignored the weight of evidence presented in both the report and the court.

“The High Court erred in law by failing to appreciate the distinctive mandate of the Office of the Ombudsman which is to investigate and inquire as compared to the adjudicative mandate of the courts.

“As a consequence, the Court failed to appreciate the nature of the remedial action in the context of the totality of the report,” reads part of the notice filed private lawyers Nyirenda and Msisha on behalf of the Ombudsman.

But on Monday February 11 2019, a panel of Supreme Court justices—Edward Twea, Anthony Kamanga and Lovemore Chikopa—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.

“This is a landmark judgement in that it clarifies the Jurisdiction of the Ombudsman and also entrenches the roles of the office in as far as accountability of public resources is concerned,” the Office of the Ombudsman said in a statement released on the same day.

State procurement chiefs are unlikely to face any music, despite being implicated in Ombudsman report

“It is not very clear if the procurement process was done [correctly] because [the finance ministry] could not provide the minutes of the IPC and other tender documents,” she noted.

In addition, it is understood that the government stonewalled her request for the names of those who attended the meeting.

The only known participant is the IPC chairman, Rashid Khama Mtelela, from the Office of the President and the Cabinet.

The IPC’s members are known to have been senior civil servants drawn mainly from the president’s office and the agriculture ministry.

The Ombudsman concludes: “The officials who were members of IPC presided over the sale of the farm machinery and benefited from the sale should be prosecuted in accordance with the Procurement Act.

“I will write the Director of Public of Prosecutions in accordance with section 126 (c) of the constitution of the Republic of Malawi.”

Section 19 of the Procurement Act stipulates that any person “who sits on an IPC and acquires an interest in a matter that is to be determined, needs to declare their interests and recuse themselves and are not to take part in the deliberations”.

If convicted, the public servants would presumably lose their jobs. But the criminal sanctions are weak: a $60 fine and or two years in jail.

Out the 177 tractors, only 77 were distributed to Agriculture Development Divisions and 100 were sold.

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