Hearing of the historic presidential elections nullification petition case started in earnest in Lilongwe yesterday with Attorney General (AG) Kalekeni Kaphale yesterday rounding up the country’s immediate past vice-president Saulos Chilima, the first petitioner, in cross-examination.
Turning up for Malawi Electoral Commission (MEC) in his capacity as government’s chief legal adviser, Kaphale and his team had no option but to proceed with the case after the panel of five High Court of Malawi judges sitting as the Constitutional Court dismissed his application for an adjournment.
During the session monitored on Zodiak Broadcasting Station (ZBS) radio, the AG sought an adjournment on the basis that a heap of documents from second petitioner, Malawi Congress Party (MCP) president Lazarus Chakwera, were served on them late. He submitted that the second petitioner introduced new issues.
Kaphale also had issues on Chilima’s sworn statements, but the five-judge panel unanimously dismissed his application.
Before Kaphale started cross-examining Chilima, one of the first petitioners’ lawyers, Chikosa Silungwe, presented Chilima’s case.
Silungwe informed the jam-packed courtroom that their client, who participated in the elections as a presidential candidate on UTM Party ticket and was ranked third as per results announced by MEC, is convinced the elections were marred by fraud and irregularities.
The lawyer said the elections were replete with a lot of irregularities and that the first petitioner would outline how MEC failed to conduct free and fair elections as Section 40 of the Constitution demands.
Chilima’s lead lawyer said MEC failed to discharge its duty and it is considered that no elections that could duly elect the President of Malawi under Presidential and Parliamentary Act (PPA) were conducted.
“The [May 21 2019] Tripartite Elections lacked credibility and must be declared null and void. Their sworn statements [by MEC] confirm irregularities that marred these elections,” Silungwe said.
He also pointed out MEC’s failure to produce an audit report as ordered by the court.
Silungwe said MEC may not rely on a document they failed to provide, arguing that President Peter Mutharika of the Democratic Progressive Party (DPP), who is the first respondent in the case, was not duly elected; hence, results should be declared null and void.
Following Silungwe’s presentation which took place in the afternoon, it was Chilima’s turn to take to the witness box for the cross-examination by Kaphale.
Chilima, who was first asked by Kaphale to state his academic qualifications, which include a PhD in Knowledge Management, agreed that truth and honesty were important before the court and committed to tell the truth.
The former vice-president further said that the basis of his petition begins from counting of the votes, auditing and transmission. He said all these are polling day events.
Taking further questions from Kaphale, a calm Chilima admitted that players in the electoral process include candidates, MEC, polling staff, voters, security officers, candidates’ representatives and independent observers.
In his cross-examination, Kaphale made Chilima admit that no word ‘fraud’ was used in his sworn statement, but ‘irregularity’.He told Chilima that his lawyer, Silungwe, used the word ‘fraud’ in his presentation of the case.
Chilima also agreed that monitors were supposed to be on high alert and instructions were given by his party to them to closely monitor.
The court adjourned to this morning for continued cross-examination of Chilima.
Earlier, chairperson of the panel, Judge Healey Potani said that Malawi Law Society (MLS) and Women Lawyers Association, who are friends of the court in the matter, did not file their documents because they were not served with documents by the parties in the matter.
Being heard by a panel of five judges, Potani, Mike Tembo, Dingiswayo Madise, Redson Kapindu and Ivy Kamanga, the case has Chilima as the first petitioner, Chakwera as the second petitioner. President Mutharika of DPP, in his capacity as the declared winner, is the first respondent with MEC as the second petitioner. The petitioners contends that Mutharika “won a fraudulent election” fraught with irregularities, including alleged stuffing of ballot papers with pre-marked ballots, tampering with election results sheets through correction fluid and being found in possession of result sheets at home.