Malawi: Court Upholds Chilima Lawyers Objection to Opinion Evidence in Malawi Poll Case - Kaphale Reprimanded for 'Demeaning Laugh'

12 August 2019

Malawi's Constitutional Court on Monday adjourned early in the day three of the ongoing presidential election case after lawyers for country's immediate past vice-president and UTM leader Saulos Chilima queried Attorney General (AG) Kalekeni Kaphale for soliciting opinion evidence amd after an hour judges came back to rule that they have upheld the objections that opinion evidence is inadmissible.

awyers confer and share notes during a break Chilima and Chakwera share a lighter moment during a break

After a weekend recess, Attorney General who is representing Malawi Electoral Commission (MEC) in the matter, continued cross-examining Chilima, the first petitioner, who was tallied third in the disputed results.

Kaphale's line of questioning focused on the percentage of polling centres affected by the intimidation of monitors as claimed by UTM leader.

He calculated that the percentage of polling centres presented is 0.0022%.

Kaphale then asked Chilima in the witness boss to state if he were a member of MEC, would he have acted based on such percentage.

His question prompted lawyers for Chilima to object with counsel Marshal Chilenga arguing that the Attorney General's question is asking for an opinion from Chilima instead of facts.

"He should solicit facts not opinion," said Chilenga.

Kaphale asked Chilenga to cite legal precedents on the matter.

Another lawyer for Chilima, Bright Theu, stood to cite court authorities including a local case involving 'Bauleni and 16 others in Prime Insurance case'.

Kaphale said he has taught on that legal subject and differed with the petitioners on the law on opinion evidence.

Lawyers for the first respondent President Peter Mutharika supported MEC lawyers on the matter.

While Malawi Law Society (MLS) and Women in Law Association (WLA), which are friends of the court, state that general opinion evidence is not admissible.

They argued that a witness may only speak of facts that he personally perceived, not of inferences drawn from those facts.

However, they argued that there is exceptions such as an appropriately qualified expert may state his or her opinion on a matter calling for the expertise that one possesses or opinions of a layman of events that don't require an expert view.

Judge Healy Potani said the court anticipates a number of issues that may come through the same line of questioning and they needed to make a determination on that.

"We have heard a lot of arguments from counsel that have been teaching the same subject. An authority by one of us has been cited so we need more time to decide," said Potani on behalf of the he five-judge panel which includes Ivy Kamanga, Mike Tembo, Dingiswayo Madise and Redson Kpaindu.

After adjourning for an hour for judges to deliberate to make a determination, the court resumes an hour later.

Reading the ruling, judge Potani cited among other legal precedence the ruling of Justice Dunstain Mwuangulu and quoted: "Opinion are not facts except for opinion of experts and the court never takes opinion from witnesses."

The judges also noted that before adjournement lawyer Theu complained that the Attorney General was laughing at the legal team for Chilima demeaningly.

The judge reprimanded Kaphale.

"In the conduct of these proceedings we need to act with the decorum. We are all professionals ... " said Potani.

Kaphale who continue with cross-examining Chilima said the respondents will be bound to the court stand on opinion evidence.

Malawi Congress Party (MCP) president Lazarus Chakwera and UTM's Chilima are challenging the outcome of the May 21 polls in which President Peter Mutharika was declared winner thereby securing another five-year term for his Democratic Progressive Party (DPP.

The case is being broadcast live on radio and is happening amid a huge political impasse following the disputed elections.

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