Prominent Blantyre-based private practice lawyer Modecai Msisha yesterday pressed the first witness for President Peter Mutharika in the ongoing presidential elections nullification petition and submitted the witness failed to substantiate claims in his sworn statements.
Ben Phiri, who is Minister of Local Government and Rural Development and governing Democratic Progressive Party (DPP) director of elections, resumed his position in the witness box in the High Court of Malawi sitting as the Constitutional Court in Lilongwe after a week’s recesss.
The naturally calm and collected Msisha, who is lead counsel for second petitioner and Malawi Congress Party (MCP) president Lazarus Chakwera, took his turn to cross-examine Phiri. He started from where Chikosa Silungwe, lawyer for the first petitioner and UTM Party president Saulos Chilima, had stopped when the court adjourned on November 15.
Msisha posed questions to Phiri dwelling, among other things, on whether DPP’s election team was concerned about the absence of an audit report MEC was expected to release after the elections to validate the results.
Further, Msisha asked the witness whether he had discussed with Mutharika the absence of the report and what their party made of the electoral body’s failure to release the report. He also asked the witness to clarify on his assertion in the sworn statements submitted to the courts that at polling stations where MEC allowed use of duplicate result sheets, party monitors signed for the result sheets.
To illustrate his point, Msisha beamed on a big screen in the courtroom result sheets from a number of centres where duplicates were used and no signatures of party monitors were used.
The grey-haired Msisha asked: “Do you still maintain that statement?”
In response, the former Mutharika aide said: “My lady, my lord, I maintain part B of my explanation.”
But Msisha probed further, asking Phiri to confirm that the forms beamed on the screen had no signatures. Here, the witness admitted that his earlier assertion was wrong.
The seasoned lawyer also asked the witness whether DPP, as a party, followed up with MEC to find out why the electoral body provided customised ballot papers and result sheets to wrong polling centres whose electoral materials were allegedly missing and figures from some polling centres indicated the number of voters was higher than the registered voters.
In response, Phiri said his party was satisfied with MEC’s explanation on both points.
On bloated numbers of voters at some centres, the witness attributed the scenario to MEC’s eleventh hour decision to allow students to vote at their nearest centres despite not having registered there.
After a grueling four-hour cross-examination, Msisha handed over Phiri to Mutharika’s lawyer Frank Mbeta for re-examination.
Mbeta swiftly moved in to lead Phiri in ironing out some statements from his cross-examination, especially where the witness appeared to have admitted that the elections had several irregularities.
Briefing journalists outside the courtroom, Msisha dismissed Phiri’s evidence as an attempt to defend MEC, the second respondent, by Mutharika’s team.
He said: “The statements were made under oath but not on actual issues, but rather [based on] his understanding of what his position of MEC was in so far as that position suited the position of the first respondent. They were distortions in order to fit evidence in so far as to fit the assertion that there was nothing wrong with the process.”
But Mbeta said the Mutharika witness had demonstrated that the petitioners’ claims of irregularities was not backed by evidence.
Re-examination will continue this morning.
The five-judge panel comprising Ivy Kamanga, Healey Potani, Redson Kapindu, Mike Tembo and Dingiswayo Madise indicated it would conclude hearing the matter on December 6 and thereafter have about 40 days to deliver its verdict.
Chilima—who contested in the May 21 Tripartite Elections presidential race wearing the jacket of the country’s vice-president after being voted to the office as a pair with Mutharika in 2014—and Chakwera are seeking nullification of the elections on the basis of irregularities in the results management system.