Malawi: Concourt Gives Revised Directions in Malawi Polls Case - Mutharika's Lawyer Mbeta Starts Quizzing Chilima

President Peter Mutharika, Vice President Saulos Chilima and Lazarous Chakwera of the main opposition Malawi Congress Party.
16 August 2019

The Constitutional Court (ConCourt) hearing the presidential election case from UTM Party presidential candidate Saulos Chilima and his Malawi Congress Party (MCP) counterpart, Lazarus Chakwera, has given revised directions on cross-examination of witnesses and objections from the lawyers to ensure expedited trial.

Mbeta: Cross-examining Chilima

Judge Healey Potani, chair of the five-judge panel of Dingiswayo Madise, Redson Kapindu, Mike Tembo and Ivy Kamanga, sitting as the Constitutional Court in Lilongwe, on Friday provided directions on how the matter should proceed, saying on cross-examination, lawyers should only be focussing on matters that are under dispute.

He said parties have been directed to file supplementary checklist by Wednesday 4pm to indicate facts that are not in dispute.

The ConCourt further directs that cross-examination will only be done by notice and parties interested to conduct cross-examination should also indicate specific areas of cross-examination.

"This will serve two useful purposes, one that witness will come prepared, second cross examination will be more focused," said Justice Potani.

The ConCourt also directed that a subsequent cross examining party will not be allowed to repeat the same question that has been previously tackled by the first or initial preceding cross examination.

"The other aspect we wish to give direction on is the objection on cross examination; we are very mindful that parties are entitled to raise objection, yes when rules have been flouted. However, there will be instances where objections are clearly [nefarious] and in those instance the courts will not hesitate to summarily overrule the objection."

But he said where the objections will be well founded, the court will give attention.

Attorney General Kalekeni Kaphale, who is representing Malawi Electoral Commission (MEC) the second respondent, as government chief legal advisor, contributed to the housekeeping issues and asked the ConCourt about the record of the proceedings.

Laywer Charles Mhango, representing President Peter Mutharika, asked the court to allow each party to the case to be allowed to ask the same questions to a witness in relation to how their client is involved.

After the housekeeping issue, first petitioner Chilima returned to the witness stand for further cross-examination by Mutharika's lawyers.

Lawyer Frank Mbeta started asking questions to Chilima to confirm that he did not contest as MP or Councillor in the May Tripartite Elections and to confirm that his UTM party only won four seats in Parliament.

Mbeta further asked Chilima to confirm that the party's losing Parliamentary candidates and the four that won are not a party to the electoral case.

Chilima confirmed all the facts, saying he is only seeking to nullify the presidential elections.

Then Mbeta further asked about the wording of his court petition by including the term tripartite elections which Chilima said he need the legal team to look into that.

But Chilima lawyers raised an objection when Mbeta asked about party monitors with Dr Chikosa Silungwe saying the court had just directed the hearing to avoid repetitive questions.

"In any event asking the witness the rationale in the involvement of monitors in an election is not only interperative of the law but also evaluating of the evidence so I object that question," said Silungwe.

ConCourt directed Mbeta to ask other questions as the role of monitors was already asked and exhausted by Attorney General who had five days of cross-examining Chilima.

When Mbeta asked another question about role of monitors, Justice Kamanga intervened to remind him the question was also previously asked by the Attorney General.

Continuing with the cross-examination, Mbeta asked Chilima about assertion that DPP cadets had been involved in dispatching of ballot papers and whether Chilima has evidence of that allegation.

Chilima said in response: "On record, no."

He showed Chilima pictures of some gadgets and asked about use of unusual gadgets by UTM monitors who were arrested by police during the election period.

This prompted another objection from Silungwe who asked the ConCourt to remove the question, saying the picture circulated is not on court record and Chilima has been ambushed with the pictures.

Silungwe said the use of suspicious gadgets was introduced to justify the arrest of some UTM monitors during the elections.

Mbeta, however, explained that the question had risen from claims by Chilima in his petition that some UTM monitors were arrested during elections without any reason.

The ConCourt ruled that Chilima should answer the questions.

The MCP and UTM Party presidential candidates claim the presidential elections were rigged in favour of Mutharika who was declared winner with 38 percent of the votes trailed by Chakwera with 35 percent and Chilima with 20 percent.

The electoral case started in earnest last week before but the proceedings were adjourned on Thursday to give room to the Supreme Court to rule on an appeal President Peter Mutharika and Electoral Commission had filed to throw out the presidential election petition case for being filed "irregularly" and "illegally".

A panel of seven Malawi Supreme Court of Appeal judges led by Chief Justice Andrew Nyirenda flanked by Justices Rezine Mzikamanda, Anthony Kamanga, Edward Twea, Dunstain Mwaungulu, Lovemore Chikopa and Edgar Kapanda, dismissed the appeal with costs .

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