The High Court of Malawi sitting as the Constitutional Court in Lilongwe yesterday stopped Malawi Electoral Commission (MEC) lawyers from using the original result sheets to re-examine its key witness in the presidential elections nullification petition hearing.
Despite MEC, which is the second respondent in the case, failing to comply with an earlier court order to submit original result sheets for use during court proceedings, lawyer Tamando Chokotho brought the original result sheets yesterday for re-examining chief elections officer Sam Alfandika.
But Chokotho’s attempt was foiled by an objection from lawyers representing the petitioners who asked the court not to allow re-examination of the witness using the documents the electoral body failed to submit in court 21 days before hearing of the elections case began.
First to raise an objection was lawyer Marshall Chilenga, a member of the legal team for first petitioner and UTM Party president Saulos Chilima. He was supported by Mordecai Msisha, the lead counsel for the second petitioner and Malawi Congress Party (MCP) president Lazarus Chakwera, who reminded the court that MEC failed to submit the original result sheets in court.
Said Msisha: “Originals of result sheets were sought. But they were never disclosed. During the cross-examination the witness was asked to recall some features on the reserve result sheets. He said he could not recall the features and there was no questioning on that.
“This is a clear indication that they want to use the original sheets which have never been disclosed and this is coming because the issue of security features was raised.”
The objections raised controversy as lawyers from both sides argued their respective positions, a development that led the five-judge panel comprising Healey Potani, Ivy Kamanga, Redson Kapindu, Mike Tembo and Dingiswayo Madise to adjourn the court for 15 minutes to facilitate a consultative meeting.
Madise said the panel of judges considered arguments from the two sides and reached a consensus to sustain the objection as raised by petitioners.
He said: “We agree with the petitioners that the second respondent [MEC] failed to disclose original result sheets. But the court also directed that documents should be filed in court for use by all.
“Evidently, this directive has failed, but they have brought the original document. The court believes allowing this would be unfair and it is tantamount to trial ambush as they have brought the document to patch up evidence. Therefore, the use of the document is not allowed.”
But Madise ordered that the electoral body should bring the original tally sheets when making submissions.
Alfandika was in court yesterday for the third day to answer questions from Msisha and Chokotho on how the commission managed the disputed presidential election results in the May 21 2019 Tripartite Elections.
Some of the questions he answered from the second petitioner’s lawyer included how complaints, which MCP raised through a series of letters, were resolved.
Alfandika told the court that the commission did not respond to queries which MCP secretary general Eisenhower Mkaka raised, a response that contradicted MEC chairperson Jane Ansah’s assertion that all 147 complaints were addressed accordingly before announcing the results.
The afternoon hours seemed an easy moment for Alfandika who on Thursday and Friday last week faced tough questions from petitioners’ lawyers.
Chokotho made him to patch his evidence during re-examination session that is expected to end this morning.
Today, MEC director of elections Henzy Mnkhondiya will be in the witness box after Alfandika completes taking questions in a re-examination session. Munkhondiya will be followed by the electoral body’s IT director Muhabi Chisi who will simulate MEC data as part of telling the court how results were managed.
Tentatively, hearing of the case is scheduled to conclude on December 6 this year. Submissions will be made before December 20 to pave the way for judgement in 45 days’ time.