The Constitutional Court sitting in Lilongwe will on Monday rule on two applications in the ongoing elections petition case.
In his application, the second petitioner Lazarus Chakwera is asking the court to allow two of his witnesses to insert documents reportedly omitted and make some alterations to their sworn statements.
The other ruling of the court will be on an application by first respondent President Peter Mutharika, whose lawyers want to cross-examine one of Chakwera’s witnesses, Richard Chapweteka, on a document in possession of second respondent, Malawi Electoral Commission (MEC) which he referred to.
The five-judge panel heard the applications yesterday morning and chair, Justice Healey Potani, announced before the court adjourned at noon that the rulings would be delivered on Monday.
Both respondents—Mutharika and MEC—are objecting to the application by Chakwera to allow his two witnesses insert the documents and make some alterations in their sworn statements, arguing that, that would be equal to bringing new evidence in the case.
On the other hand, the first petitioner UTM presidential hopeful Saulos Chilima also opposed to the application by Mutharika’s lawyers to allow them cross-examine Chapweteka on the document in possession of MEC, being a checklist of electoral materials printed in Dubai, United Arab Emirates.
On the document in question, Chakwera’s legal team took a soft stance, with lawyer Modecai Msisha confirming what one of the lawyers representing the President, Frank Mbeta, said, to the effect that they had no problems to have them refer to the document and cross-examine their witness on that.
MEC also allowed Mutharika’s legal team to refer to the document, but vigorously argued, through lead lawyer Tamando Chokotho, against Chakwera’s application to have his two witnesses—Peter Lackson and Anthony Bendulo—insert some documents in their sworn statements and make some changes in the statements.
After presentations of arguments and counter arguments, the court adjourned for next week, to focus on the applications made and arguments provided in reference to the law, and come Monday, October 7, the court has to deliver its rulings.
But who will carry the day?
It is an undisputable fact that any ruling within trial/hearing, if it goes in one’s favour, helps to build confidence to the winning party and it becomes a setback to the losing party as it means certain wishes are rejected and may in one way or the other affect the game-plan.
Mbeta, lead lawyer for Mutharika, briefed the court earlier yesterday that Chakwera had no problems to have his team refer to the document in possession of MEC, to which Msisha confirmed.
However, lawyer Marshall Chilenga, representing Chilima, said the document that was being sought was subject for disclosure as goods received by MEC.
“We dealt with this matter on 27th June , and that time, the document was not there. This request failed that time,” he said.
Chilenga said entertaining the issue now would mean going back to what was dealt with when the document in question was not there.
But Mbeta argued that the document would help to show the ballot papers that were received, their safety as they were being transported from Dubai to Malawi and if boxes were sealed.
Mbeta argued the document would not prejudice the first petitioner’s case as none of Chilima’s witnesses made reference to that document, except Chapweteka.
But Chilenga argued they indeed did not talk about this document up until the time they closed their case because it was not there, insisting bringing it now would prejudice their case.
On their application to allow insertion of some documents and alterations of sworn statements, Titus Mvalo, one of the lawyers for Chakwera, argued that the law allows a party to alter statements and insert documents if the request is intended to provide to court better facts.
“These documents being requested are not bringing new evidence…these are documents that are already in court, but just making some additions. And we just want to correct what was not there,” he said, making reference to some pieces of the law.
He said a party has a right to reconstruct statements in the manner they want to present their case in court.
Mvalo said it was up to the court to consider how evidence is presented, not to banish them.
Pempho Likongwe, another lawyer for Chakwera, said the application is meant to include what was omitted, but the narration remains the same.
But Mada Mmeta, another lawyer for Mutharika, argued that any change in the statements would mean changing evidence.
In reference to some pieces of the law, he said a sworn statement can be amended through another sworn statement, which did not happen in the current matter.
Mmeta said allowing insertion of some document would mean allowing the party to amplify its evidence, which the court disallowed in its September 18 2019 ruling.
Chokotho agreed with Mmeta that the accepted procedure for correcting errors is by filing fresh sworn statements, setting facts correctly. He urged the court not to allow the amendment.
Chakwera and Chilima claim that results for the May 21 2019 presidential election were marred with irregularities and fraud and want them nullified. The two are also seeking a court’s order for a re-run.
MEC declared Mutharika as winner. The electoral petition case started on August 8 2019.