- Claim Chilima, Chakwera failed to prove case
President Peter Mutharika and Malawi Electoral Commission (MEC) have denied suggestions that the presidential election results in the May 21 Tripartite Elections were marred by serious irregularities or rigged in favour of Mutharika.
In their separate final written submissions to the High Court of Malawi sitting as the Constitutional Court, Mutharika as the first respondent and MEC as the second respondent say the petitioners—UTM Party president Saulos Chilima and Malawi Congress Party (MCP) president Lazarus Chakwera—failed to substantiate the claims outlined in their petitions which Chief Justice Andrew Nyirenda conjoined into a single case.
The respondents argue that the evidence tendered by Chilima and Chakwera was based on either hearsay or opinions of witnesses. Besides, the respondents submit that the purported irregularities did not affect the final results of the elections.
Mutharika, a 78-year-old former law professor, through his lawyer Frank Mbeta, argues in the 332-paged submission, the longest in the case, that the election results reflect the will of the people and that he legitimately won.
On its part, MEC, whose legal team is led by Attorney General (AG) Kalekeni Kaphale in his capacity as the chief legal adviser to the government, argues that the petitioners have failed to substantiate any of their claims.
Kaphale quashed all but one claim in Chilima’s petition. The AG submits that there is no evidence to back allegations of intimidation and bribery of presiding officers, arrest of persons at polling centres, failure to deliver ballot papers. He pleads with the court to dismiss them after witnesses, who swore statements alleging the same, were withdrawn.
Submits Kaphale: “In the final analysis, therefore, our submission is that there were no irregularities or other factors that beset the election and that even if any were there, they did not affect the result of the election. We, therefore, humbly pray for the dismissal of the petitions, with costs.”
He also dismisses allegations by the petitioners that MEC did not deal with their complaints lodged prior to the announcement of the official results, arguing that even “their own evidence, however, tells a different story”. Here, he cited the evidence tendered by, among others, Mirriam Gwalidi for Chilima and Eisenhower Mkaka for Chakwera.
On use of fake tally sheets or duplicates, MEC says MCP was invited to bring monitor tally sheets to contradict the results that the electoral body had on the duplicates altered or ‘fake’ tally sheets, but the party never reverted with the monitor results and “have not brought those even in this litigation”.
Said Kaphale: “It cannot, therefore, be correct to allege that complaints were not addressed. The complaints lacked evidentiary material to support redress action. It will also be noted that even those complaints that received a response have made it into this litigation. Issues like duplicates, alterations, counterfeits were all subject to responded to complaints.”
On behalf of Mutharika, Mbeta also draws a similar conclusion, saying: “From the foregoing, the first respondent submits that the petitions are without merit and prays that the same should be dismissed with costs.”
Kaphale argues that there could have been a few irregularities in the process, but the court should focus on how such irregularities affected the overall results of the elections.
In a presentation split into two, one with 174 pages and another with 18 pages, the AG submits: “Our position and our submission is that there must be presented before the court, evidence pointing towards the existence of a sham election which is a substantial departure from the law on how an election must be conducted, only then should an election result be nullified.
“That is how sanctified the vote or election result is when conducted in a manner that does not resemble a departure from constitutional or statutory mandates. Our further submission is that there is no such evidence.”
On the presentation by Daud Suleman, the MCP information technology expert whose testimony, including a simulation of the MEC Result Management System (RMS) alleged that the results were rigged with an aid of a hacker, Kaphale said the testimony was a “paradox”.
He said the testimony did not indicate at any point that the results transferred in the RMS were inaccurate.
Argues Kaphale: “The witness confirmed in court that he did not exhibit a single result that was not transmitted accurately or any result that was relayed and arrived with data changed was given at all. One can only allege a failure where there are negative consequences and none have been proven.”
Mbeta argues that both Chilima and Chakwera failed to bring any expert witness, adding that their witnesses brought to court “unprecedented level of hearsay evidence in the feeble attempt to overturn the presidential election”.
He said: “The evidence of witnesses like Daud Suleman, Anthony Bendulo and Peter Lackson be viewed with a lot of circumspection and caution because these witnesses brought before the court their personal opinions yet they did not come to court to testify as expert witnesses.
“They [the witnesses] did not attend any polling centre or constituency tally centre activities yet their testimony was full of conclusions as to what must have happened at those places.”
Mbeta also argues that the lack of evidence from party monitors weakens the petitioners’ case.
Further, he recounts that during cross-examination on the issue of monitors, Chilima himself stated that he was aware that the monitors had the right to complain about any mishaps at the polling station as per the requirements of Section 89 of the Presidential and Parliamentary Elections Act (PPEA) “or the freedom to swear a statement and present it to court”.
In a written response to a questionnaire on his views on the respondents’ submissions yesterday, University of Cape Town law professor Danwood Chirwa described the strategy taken by MEC as interesting, but noted that it avoided, in most instances, responding to the direct evidence of the petitioners.
He also observed that the respondents ignored the implications of the admitted evidence.
“It is as if the evidence was so disputed. The critical facts were not. It might be a good strategy to obfuscate through convoluted submissions, given the strength of the petitioners’ case on key facts. But burying more important aspects of the case in haze is certainly not effective advocacy,” Chirwa said.
He said, in his opinion, following the submission of the final arguments, he believes the judges “have already made up their minds, almost 95 percent” and that the hearing of the oral submissions would serve as a mere formality.
Chirwa also observed that much of the submissions deal with the interpretation of the evidence and its implication and suggested that from a legal point of view the case “is very straightforward”.
He said: “The issues of burden of proof, presumption of regularity [which is of no consequence in a constitutional context where any Act of government can be declared unconstitutional] and standard of proof aren’t of serious applications given the significant amount of facts admitted or evidence laid by the petitioners and MEC’s own witnesses, the court could add more to the staple of these facts depending on who it chooses to take as credible witnesses.”
Chirwa also said the court will ultimately decide on the question whether there were electoral irregularities and their gravity.
On Saturday, our sister newspaper Weekend Nation published the final submissions by lawyers representing Chilima and Chakwera.
In their submissions widely seen as complementing each other, Chilima and Chakwera detailed how MEC officials and others allegedly manipulated the elections in direct contravention of the law.
In the case, Chilima and Mutharika are seeking nullification of the presidential elections results based on irregularities, especially in the results management system.