11 February 2019

Malawi: Supreme Court Rules in Favour of Ombudsman On Tractorgate - Politicians to Face the Rap

A landmark judgement delivered Monday has upheld the entire infamous controversial loan procurement of tractors from India and their subsequent resale to mostly influential politicians and government official in favour of the Ombudsman.

The Ombudman's Office released her investigation findings on the complaint that her office received over the manner in which the Malawi Government sold some tractors and other farm machinery to public officers and other farmers.

In a 48-paged report by the Ombudsman Martha Chizuma Mwangonde specifically called for prosecution of the officials who were members of 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 Procurement Act," plus an apology by three principal secretaries responsible for the ministries involved.

But 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.

Attorney General also faulted Ombudsman for dictating the course of action on how it conducts its legislative business after she recommended that Parliament exercise caution when dealing with loan authorisation bills after observing that Parliament's own Standing Orders were being abused by government to fast track poorly scrutinised laws.

The High Court agreed with the Attorney General and ruled that the Ombudsman had no jurisdiction over the matter. The Ombudsman appealed against the High Court decision to the Supreme Court with the assistance of renowned lawyer Modecai Msiska, SC.

On Monday, A panel of Supreme Court justices--Edward Twea, Anthony Kamanga and Lovemore Chikopa--have 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 Supreme Court has given the Malawi Government 60days within which to comply with the directives of the Ombudsman. 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 Supreme Court has promised to provide the full judgement by Thursday 14 February 2019.

Government obtained a $50 million loan from the Export and Import Bank of India for the procurement of the machinery under contention.

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