On at least two occasions yesterday, lawyers representing first petitioner Saulos Chilima in the historic presidential election petition case came to his rescue as Attorney General (AG) Kalekeni Kaphale wound up the lengthy cross-examination on the immediate past vice-president.
The grueling cross-examination that started last Thursday entered its fifth day yesterday. Through the cross-examination, the AG made Chilima consistently admit that no UTM Party monitor has submitted to court a sworn statement to challenge results Malawi Electoral Commission (MEC) relied on to declare a winner in the May 21 2019 Tripartite Elections.
At one point, Kaphale pressed Chilima to explain if his witnesses Darlington Ndasauka and Miriam Gwalidi, UTM Party’s electoral officers, ever used the word fraud in their sworn statements submitted to the court, Chilima responded that they never.
After Chilima conceded that the word fraud was not used, the AG further asked him if he wanted to withdraw it.
Kaphale explained that he made the demand to have the word “fraud” withdrawn because in his (Chilima’s) petition to the court, he did not use it.
But one of Chilima’s lawyers, Chikosa Silungwe, objected to the AG’s question, arguing fraud is a concept and touches on law and it would be up to his [Chilima’s lawyers] to demonstrate if the elections were marred with fraud.
Kaphale, however, argued that as serious as fraud is, the issue needed to be tackled thoroughly with the witness, but after the five-judge panel of the High Court, sitting as the Constitutional Court, discussed the issue, it came announced its position through one of the judges, Dingiswayo Madise.
“That’s a legal argument, the objection is upheld,” Madise ruled.
The AG, representing MEC, said he would take it as a pleading point when making their submissions and he proceeded with his cross-examination.
According to the court proceedings, Chilima never used the word “fraud” in his primary petition but it appeared later in his supplementary sworn statement, hoping to back it up by sworn statements from Ndasauka and Gwalidi.
As the AG continued with his cross-examination, citing MEC forms submitted by Chilima’s witnesses, he asked the first petitioner procedures followed if one was to lodge an electoral complaint which he said begins with a complaint to MEC and if not satisfied or unresolved, to the High Court.
But even when Chilima had responded that was the correct procedure in lodging the electoral complaint, one of his lawyers Marshal Chilenga stood up and objected to the question, arguing it was touching of point on law.
Kaphale did not want to pick an argument on that or let the court hear a submission on that to come up with a ruling. Instead, he moved to another question.
Going deeper into the sworn statement of Ndasauka, who was based at the national tally centre in Blantyre, the AG asked Chilima if he knew the difference in votes between Peter Mutharika, who was declared winner in the presidential race, and runners-up, MCP’s Lazarus Chakwera.
Chilima responded the difference was 158 000 between Mutharika and Chakwera, and Kaphale asked him if he thought the 198 votes from three particular centres warehoused by MEC, which Ndasauka in his sworn statement claimed he had problems with, would have affected the results, to which Chilima said they would not.
Chilima further admitted that there was no sworn statement in court to confirm that MEC chairperson Jane Ansah, whom he asked to resign, made any decision in the electoral process on her own.
The AG asked Chilima if he knew that national results are an aggregation of polling centre results, which is an aggregation of stream results, to which he said that was correct.
He further asked Chilima if he could agree it was possible to select results that had challenges, to which Chilima said ideally it was possible.
Kaphale also asked the first petitioner if it was possible for his monitors to bring alternative results and challenge the MEC official results, to which he again said it was possible, further admitting that no monitors submitted sworn statements to challenge the vote validation.
The AG concluded amid some booing from the public gallery after he said people did not believe that he was concluding, compelling chair of the five-judge panel Healey Potani, to warn trouble-makers may not be allowed next time as the court proceedings have a decorum that needed to be respected. This was the judge’s second warning to the public gallery.
This was the last day Kaphale was having Chilima in cross-examination, and before the matter was adjourned, Potani announced that the court would not sit today and would only resume on Friday because today, the Malawi Supreme Court of Appeal is sitting to hear the same electoral matter and some lawyers involved in the elections petition case are the same in the matter before the Supreme Court.
President Mutharika, who was declared by MEC as winner in the May 21 2019 presidential race, is the first respondent and the electoral body is the second respondent. Mutharika, following a notification submitted in court by second petitioner, Malawi Congress Party leader, Lazarus Chakwera, is expected to appear in court to take some questions.