Lawyers for UTM Party and Malawi Congress Party (MCP) presidential candidates have queried the Constitutional Court in the ongoing presidential election court petition case over the alleged partisan role played by Attorney General (AG) Kalekeni Kaphale and the slow pace of the case.
Kaphale’s role first came into question after the AG, who is representing Malawi Electoral Commission (MEC), stood to address the court on a debate about cross-examination while lawyer Frank Mbeta was addressing the court.
Mbeta is one of the lawyers for President Peter Mutharika—who is the first respondent as governing Democratic Progressive Party (DPP) presidential candidate in the May 21 Tripartite Elections.
Mbeta was cross-examining Chilima on evidence from ballot sheets, and his move to support allegations of pre-marked ballot sheets in Mzimba and inflated number of voters in Rumphi.
One of Chilima’s lawyers Chikosa Silungwe told the court Kaphale’s role and conduct is raising questions over his impartiality and the impartiality of MEC, offices Silungwe said are supposed to act independent of partisan interests. He argued that the AG and MEC have colluded with the DPP candidate in the court case.
Silungwe said Kaphale “is conflicted” as he is supposed to be “custodian of the Constitution” and act as a “referee” in such matters and consequently regularly delaying proceedings in the matter.
Veteran lead lawyer for MCP presidential candidate Modecai Msisha concurred with Silungwe and took further aim at the court, criticising it of failing to adhere to its own directions which are aimed at speeding up the trial.
He said: “It appears counsel for MEC is acting in collusion with counsel for Presidential candidate. The second issue is time. The court is not exercising its obligation to manage this to ensure that the case is expedited. You have to look at the law. At the rate we are going, we will be having a decision in 2025, with all due respect.”
But Justice Healey Potani, who forms part of the five-judge panel hearing the case, chided Msisha for the suggestion that the case could prolong to 2025, saying the assertion may send a “wrong signal to the public”.
“We are still reviewing the issues but we feel that we should not expedite the case at the expense of justice but what you have said will be at the back of the mind. I am not happy with what you have said about the case ending up in 2025, it may send a very wrong signal to people listening outside,” he said.
Msisha apologised for any “overreach” in his comments but maintained his stance on both the delays and role of the AG.
Mbeta defended the AG’s role in the case, saying since DPP and MEC were both respondents in the case, they were entitled to conferring and sharing positions.
He said: “It’s rather surprising that the petitioners decided to drag the first respondent and second respondent in the same matter, but when it comes to responses, the issue is that we are colluding.”
The lawyer argued that the defence teams’ responses are based on “what we believe are facts”.
Said Mbeta: “If there are any similarities in our stories, the word of mouth which should come out should be collusion. I have noted that when petitioners speak the same language, it’s okay but when we respond in the same manner it’s a problem. I believe there should be a fair level playing field without attracting words like collusion.”
Mbeta further said the AG addressed the court on the matter as an officer of court, adding there was no conflict of interest in doing so.
The UTM Party and MCP legal teams have accused the DPP and MEC legal teams of employing tactics to delay the case, including repetitive questions.
Some 800 witnesses have sent sworn statements and possibly could be lined up to provide evidence, but the AG spent five days cross-examining Chilima alone.
The hearing in the Constitutional Court enters its eighth day today, with Chilima still expected to be in the witness stand to face lawyers representing Mutharika in cross-examination. This will be followed by Chilima’s witnesses to who will also take to the witness stand before the second petitioner, Chakwera, takes his turn in this historic election case the five-judge panel wants to be heard within 12 days.