Top Malawi officials face jail after contempt of court finding

1 August 2019 · Carmel Rickard

Two top government officials will be sentenced on 5 August 2019 for disobeying an order of Malawi’s Supreme Court. They had been told by the highest court to apologise to the nation for their role in the ‘Tractorgate’ scandal that has gripped the country – but they failed to do so. Now the high court has called this a ‘mockery of justice’ and found them guilty of contempt of court.

Read the judgment

It seemed such a small thing that the court had ordered. And yet the court's order was not obeyed. In the wake of one of Malawi’s most contentious corruption cases, the Supreme Court of Appeal ordered two of those said to be at the heart of the matter to issue ‘an apology’ to the people of the country for their actions.

While debate raged over whether this was enough and whether it would be followed up by more serious punishment, the two officials concerned - Principal Secretary for Finance, Cliff Chiunda, and the Principal Secretary for Agriculture, Grey Nyandule-Phiri - did nothing. They just ignored the order of the Supreme Court of Appeal. And when the Ombud, who had investigated the whole scandal, went to court for a contempt order, the two officials simply stayed away.

That, however, has not helped them: the high court heard the matter anyway and ruled against them. Now, with a contempt of court conviction hanging over them, the two will hear their sentence on 5 August, 2019.

During the hearing, Malawi’s Ombud, Martha Chizuma, told the court that her office had released a report in October 2016 dealing with allegations of maladministration in relation to the purchase of farm machinery for USD50m.

In terms of her report into what Malawi has dubbed ‘Tractorgate’, the Ministry of Finance was supposed to apologise to the people of the country for having bought tractors with what the ministry alleged was 'archaic technology', thus wasting taxpayers’ money. The Ministry of Agriculture was also to apologise because it had been behind the sale of the tractors to ‘top government officials’ and others, at a cost that was way below the purchase price.

The ministries challenged the Ombud's report, initially with some success in the high court. But the Supreme Court of Appeal then upheld the entire report and ordered that the officials should comply with the remedies proposed by the Ombud. They were to do so by 10 May 2019, but even though they were reminded of their duty, they did not obey. When the Ombud wrote to the AG a few days after the deadline expired, saying she would ask for a contempt order against them, neither the ministries nor the AG responded.

In her application, the Ombud asked the high court to order that the two Principal Secretaries should be sent to prison for their ‘blatant and contemptuous disregard’ of the highest court’s order. Ordinary Malawians, angry about the waste and the corruption involved, are keenly waiting for next week to see if they will be jailed.

Judge Charles Mkandawire, who heard the court in the High Court, Lilongwe, did not hesitate. He said the facts of the application were ‘so straight forward’ that they needed no further elaboration. Both Principal Secretaries were ‘fully aware’ that the Supreme Court of Appeal had ordered them to publish an apology by 10 May. The Ombud had even gone a step further by reminding the AG, their legal advisor, of what had to be done. ‘This did not work.’

‘I even wonder what advice the AG had given them’ because the due date came and went and no apology was published, said Judge Mkandawire.

He put it on record that counsel had informally pointed out to the court that she had seen an apology by the Principal Secretary for agriculture in a daily paper that morning. But the judge was not moved. ‘Unfortunately, (the Principal Secretary) was not in court to explain the status of that apology as it was outside the ordered period.’

Judge Mkandawire said he refused to get involved in matters not properly before him, or to ‘delve in any speculations’. It was ‘incumbent’ on the Principal Secretary to respect the court order and to come to court on the day the matter was heard. Nothing had changed, said the judge, since the officials had not complied with the court’s order.

‘This was just a mockery of justice. Unfortunately one cannot trick justice,’ said the court.

He found ‘as a fact’ that the order of the Malawi Supreme Court of appeal had indeed by disobeyed by both the officials. He thus found both of them guilty of contempt of court.

Meanwhile, calls for those responsible to be prosecuted is growing. In her report the Ombud had also recommended further steps, and that members of the internal procurement committee should be prosecuted, along with ‘those who presided over the sale of the farm machinery’.

The Ombud reported receiving death threats when she began her investigation. The Nation newspaper, whose journalists claim they uncovered the scam, said they had a number of demands for what should be done next.

They said the AG should be prosecuted for obstruction of justice and abetting corruption. The AG’s office had ‘fought hard’ against any admission of mistakes by the government. They urged that those who described the tractors as ‘archaic’, but who still bought them, should be prosecuted for lying under oath. The journalists said these people had lied about the tractors’ technology with the intention of getting these same tractors virtually for free.

Finally, they want all those who bought tractors at knock-down prices to be compelled to pay the full cost including duty and other taxes. If they did not, there would be protests, with farmers mobilized to march to parliament, they said.

Carmel Rickard

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