The Supreme Court of Appeal has set June 2017 without specific dates in that month for hearings billed to either to dismantle or give more teeth to office of the Ombudsman in Malawi.
Documents seen by Nyasa Times and corroborated by sources at the Supreme Court of Appeal confirm this development.
The office of the Ombudsman’s appeal follows a High Court ruling in February this year which made the office and its operations redundant following a controversial unpalatable ‘Tractorgate’ scandal report which the office produced and tried to enforce as per its constitutional mandate.
The Ombudsman report titled “The Present Toiling, The Future Overburdened”, which cited nine instances of gross maladministration by government officials, among other key recommendations, called for the crackdown on state procurement chiefs implicated in the scandal .
The infamous ‘Tractorgate’ scandal revolves around the government’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.
The tractors, purchased for R740 000 each, were sold for R100 000 each, raising a paltry R12-million. The scam was allegedly disguised as a routine public auction of government equipment.
But Judge Fiona Mwale of the Lilongwe Registry declared as and null and void the Ombudsman report on the infamous “Tractorgate” scandal consequently sending a chorus of murmurs of jubilation by state procurement chiefs at Capital Hill, the seat of the Malawi government.
The Ombudsman argued a notice of appeal filed at the Supreme Court that the High Court judgement deliberately ignored the weight of evidence presented in both the report and in court hearings.
“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.
“The High Court erred in failing to find and uphold the determination of the Ombudsman that there was in fact no other remedy reasonably available to the complainants as demonstrated by contents of the report.
“It also erred in holding that the question of adequacy or sufficiency of remedy was not to be debated in the Ombudsman’s determining whether or not there was a remedy reasonably available, and whether or not to undertake an investigation,” the Ombudsman notice reads.
The Ombudsman report released in October 2016, sent seismic waves in the corridors of government, promoting the government to move with haste to file for a stay order to stop the implementation of key recommendations and pushed for a judicial review, which was largely seen as a desperate attempt to shield the named culprits.
Mwale said the Ombudsman had no jurisdiction on the matter arguing that the complainants should have gone to Courts.
The Tractorgate investigation was carried out in response to two complaints lodged between April and May 2016. The first complainant was MP Juliana Lunguzi and the second was a smallholder farmer.
The MP complained about processes on acquisition and disposal of the farm machinery. The farmer complained about accessibility of the farm machinery.
“The High Court erred in holding that the Ombudsman had no jurisdiction to undertake the investigation and in quashing the remedial orders and actions on that basis. It also erred in adopting a construction of section 123 of the Constitution which renders the office of the Ombudsman redundant.
The High Court erred in construing section 123 of the Constitution by failing to recognize and uphold the discretion of the Ombudsman to determine whether there is a “remedy reasonably available” to a complaint in deciding if an investigation should be undertaken,” the office said.
Judge Mwale’s verdict meant state procurement chiefs who were implicated in the country’s multibillion-kwacha scandal and faced prosecutions and job losses heaved sighs of relief.
The tractors and shellers were part of a $50-million (R695-million) development scheme known as the Green Belt Initiative, which was set up to buffer millions of peasant farmers from drought.
Funded by a loan from the Export-Import Bank of India (Exim Bank), the scheme sought to put about a million hectares of farmland under irrigation and improve food security for peasant farmers, who make up 70% of Malawi’s population.
- The Centre for Investigative Journalism Malawi (CIJM) supported this story – http://www.investigative-malawi.com