The Constitutional Court hearing the presidential election petition case on Tuesday resumed proceedings after a 10-day break with the validity of evidence by UTM Party’s key witness being questioned by a Malawi Electoral Commission (MEC) lawyer.
Mirriam Gwalidi, a key witness for UTM Party presidential candidate and first petitioner in the case Saulos Chilima, continued being cross-examined by MEC lawyer Tamando Chokotho, who turned to the evidence collected from the inspection of MEC warehouses by all parties in the case following the disputed elections.
The main bone of contention in the afternoon turned out to be notes which Gwalidi and other UTM Party officials collected during the inspections.
In his line of cross-examination, the MEC lawyer sought to solicit a confession from Gwalidi that any evidence collected during the exercise was inadequate to cast doubt on the validity of the election results.
Furthermore, Chokotho, who was the second to cross-examine Gwalidi after Attorney General (AG) Kalekeni Kaphale, further challenged aspects of the evidence to have been hearsay, pointing out that some of the notes taken during the inspection were not taken by others, not Gwalidi—citing “alien” handwriting.
He also challenged the use of notes taken during the inspection as light evidence and less legitimate compared to photocopies of log books and result sheets which UTM Party legal team did not bring to the court.
But Gwalidi was quick to dismiss the school of thought, explaining that circumstances could have made the ideal not possible. She also notified the court that other log books have been submitted to the court as evidence.
She conceded that some of the notes were taken by others but explained that the records were still representative of valid evidence as she was representing the UTM Party team.
That point opened a fresh can of worms with Chokotho praying to the panel of five judges—Redson Kapindu, Healey Potani, Dingiswayo Madise, Ivy Kamanga and Mike Tembo—to remove the hearsay evidence from the record while Chilima’s lawyer Bright Theu argued that the witness was in most cases submitting evidence of others.
Said Theu: “The inspection was ordered by the court, supervised by the registrar of the court and it was a court-centred action. The design of the process, which included access to the material, recording the findings and those findings being certified was meant to be used by this court. As Justice Kapindu observed, the idea that these notes were taken for personal use was debunked by the purpose for which these notes were taken.”
The court went on a 30-minute break for the judges to decide on the matter.
Delivering a ruling on behalf of the panel, Potani declared the notes taken by other UTM Party officials other than Gwalidi hearsay, but would allow the notes to be admitted in the case for cross-examination and re-examination for the time being.
Earlier, the court ruled against Theu’s attempt to stop Chokhotho from cross-examining Gwalidi on questions that Theu said appeared to be evaluating the evidence.
However, the day was punctuated by objections and while Chokhotho stated in an interview the MEC legal team was happy with the progress, UTM Party legal team spokesperson Khumbo Soko said the slow pace of the case was a setback.
Chokhotho hinted that MEC team would wind up cross-examining Gwalidi today (Wednesday).
Chokotho further disclosed that MEC will cross-examine all 38 witnesses for Chilima, the first petitioner, as well as 16 witnesses for Malawi Congress Party (MCP) candidate Lazarus Chakwera, who is the second petitioner.
Chakwera and Chilima, who came second and third with about 35 percent and 20 percent of the presidential votes, respectively, are challenging the re-election of President Peter Mutharika who won the elections with 38 percent of the vote.