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Ombudsman appeals Tractorgate verdict

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The Office of the Ombudsman has appealed against a High Court verdict that pronounced that the office had exceeded its mandate when it recommended that some officials who were involved in the procurement and subsequent sale of tractors from India should apologise to Malawians.

Using a Parliament approved loan, government procured 177 tractors and 144 maize shellers in 2014, but the equipment was sold to politicians, civil servants and other private sector gurus for a song even though it was initially meant for smallholder farmers.

After receiving complaints on the transaction, Ombudsman Mar t h a Chizuma-Mwangonde instituted an investigation which, among others, recommended that Secretary to Treasury should apologise for overburdening Malawians with a loan that did not benefit them.

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However, Attorney General Kalekeni Kaphale obtained an injunction against the Ombudsman’s recommendations and applied for a judicial review which resulted in Judge Fiona Mwale ruling that the Ombudsman had no jurisdiction to make such a determination.

The High Court ruling has prompted the Ombudsman to file 10 grounds of appeal including that the court 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 that the Ombudsman had no jurisdiction to undertake the investigation of the complaints presented to and investigated by her. The judgement of the High Court was against the weight of evidence,” reads part of the appeal filed by Nyirenda and Msisha.

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It adds that 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,” says the appeal.

In an interview yesterday, Kaphale said the Ombudsman has an “undoubted” right to appeal.

“I have seen the appeal and I must say there is nothing wrong with the Ombudsman exercising her right to appeal. We will just have to prepare our arguments for the time in court. It is an issue of the law and at the end, this law has to be upheld,” said Kaphale.

The Ombudsman’s report titled ‘The Present Toiling, The Future Overburdened’ cited several instances of maladministration by government officials and went ahead to order that procurement officers implicated in the scandal should be prosecuted.

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