Chakwera, AG in showdown

Malawi Congress Party (MCP) president Lazarus Chakwera and Attorney General (AG) Kalekeni Kaphale on Thursday tussled in court in a cross -examination punctuated by flashes of tempers.

Chakwera, the second petitioner in the presidential elections case being held by the Constitutional Court in Lilongwe, was appearing in court for the first time after first petitioner UTM Party leader Saulos Chilima completed his cross-examination last Thursday.

On several instances, the two-time MCP presidential candidate and the AG clashed on the evidence in the petition, Chakwera’s knowledge of the contents of the petition and familiarity with electoral processes.

Kaphale, who is representing Malawi Electoral Commission (MEC) as government’s chief legal adviser, attempted to portray Chakwera as lacking in knowledge. At one stage, he challenged Chakwera on whether he had read the files of the case before coming to court and further told the MCP leader that his responses reflected on his abilities as a leader.

“A leader wouldn’t know everything. Only God knows everything,” responded Chakwera to one of the questions.

Kaphale defended his stance, saying he was testing the knowledge of the witness.

Occasionally, tempers flared and on several occasions the bench reined the AG to adhere to earlier court directions on how to conduct the cross-examination, including on making statements about the conduct or character of witness and use of hearsay evidence.

At some point, Kaphale threatened to stop the cross-examination, saying Chakwera’s legal team was over protecting him in a way the AG has never witnessed.

The AG at one point also infuriated the bench while tussling with Chakwera’s lead lawyer Modecai Msisha when he suggested that the panel of judges was protecting the witness from cross-examination.

An irked member of the five-judge panel, Justice Dingiswayo Madise, reprimanded the AG for the remark and ordered him to withdraw it. Kaphale did.

“You are over protecting the witness. I have been given one day,” said Kaphale

Said Madise: “Are you alleging that ‘we’ who made the ruling on the one day are protecting the witness. Can you withdraw that part?”

Another judge, Justice Redson Kapindu also reprimanded the AG for making remarks that were deemed unprofessional which he quickly withdrew only to repeat them.

Kaphale apologised fully at the end of the proceedings for “one or two things” he said in the heat of cross-examination, blaming the actions on “stress due to cross examination”.

While the AG sought to portray Chakwera as an unreliable witness and a politician who participated in elections whose process he hardly understood, the MCP leader was steadfast in challenging that line of cross-examination, refusing on several instances to take the bait to give straightforward answers that would confirm Kaphale’s line of thought.

Kaphale further sought to portray Chakwera’s testimony as reliant on hearsay and not backed by evidence of party monitors, but Chakwera insisted that as party leader he could not be on the ground to checke polling and tallying of results; hence, he relied on monitors’ testimony.  

In response to why his party monitors appended their signatures to the ‘Tippexed’ forms, Chakwera refused to say the signatures mean the results were legitimate but that the court will now decide on the results.

He further said the party filed the petition for the court to find out why MEC used duplicates when it had original.

“My petition outlines the fact that if those papers that were supposed to be used were not used, where did they go and where did those that were used come from?” asked Chakwera.

Kaphale further sought to undermine the use of Tippex and in one instance surprised Chakwera by asking if he was aware that Tippex was used at a polling centre in his own constituency.

Earlier, Msisha in his 20 minutes opening statement, said the MCP candidate’s petition would focus on fundamental questions on whether MEC breached its duties under Section 76 of the Constitution and whether MEC injured the political rights of the country’s citizens.

The veteran lawyer further said the petition would demonstrate to the court fundamental human rights principles and provisions of the Constitution, including those stipulated in Section 12, were violated; how MEC failed to conduct an audit of the results as obliged and flouted the procedures of managing elections as stipulated in the election management manual throughout the process.

Msisha said the electoral body “renegaded” on the stipulated processes aimed at producing credible results and the petition will provide evidence to demonstrate that the election results were “undue returns”.

Added Msisha: “There was a result management system and any renegading of that system should be considered an irregularity. On the audit process, we will demonstrate that we still do not have an audit report. We will place a lot of attention on the fact that when you consider MEC as a constitutional and statutory body we will be showing that a marked unwillingness to be forthcoming to place before the petitioners and–when you consider Section 40–the nation, to explain this is what happened. There was clearly an attempt to suppress transparency.”

Chakwera will continue facing Kaphale in cross-examination today. The MCP leader and Chilima are challenging the re-election of President Peter Mutharika in the May election in what they have said was a flawed election process.