Malawi: Lawyer Msisha Objects to Character Evidence On Chakwera in Malawi Presidential Poll Case

17 September 2019

Lawyers of Malawi Congress Party (MCP) president Lazarus Chakwera in the Constitutional Court hearing on the disputed May 21 2019 Presidential Election on Tuesday addressed the court to object to Malawi Electoral Commission (MEC) and Democratic Progressive Party (DPP) lawyers to cross examine Chakwera and his witnesses on certain areas considered irrelevant such as character evidence on the second petitioner.

Senior counsel Mordecai Msisha told the court that the character of witnesses in the matter is not an issue hence no need for such in cross examination.

Msisha also questioned the rationale behind MEC and DPP lawyers wishing to cross-examine each other's witnesses when they essentially hold the same view in the matter before the court - that is objecting to the annulment of the presidential election results on the basis of mismanagement.

Lawyer Msisha, a constitutional law expert, also asked the court that MCP witnesses should be allowed to "amplify" their sworn statements submitted to court as evidence-in-chief.

Judge Ivy Kamanga asked Msisha to explain the intention to amplify the sworn statement.

He responded by saying that the intention is not to introduce anything new but expound to the court on what the witnesses have already presented to the court in witnesses statement.

Msisha said there is need for the access to correct evidence to be tendered in the court for the courts to make a sound decision.

He said the use of gadget to "amplify" the sworn statements is not introduction of new evidence.

DPP lawyer Madalitso Mmeta objected to the application, saying the rules of court control evidence by way of directions and thus the MCP application is in violation of clear court rules.

Mmeta argued that the MCP prayer to bring aboard 6 more logbooks in evidence cannot be said to be evidence omitted inadvertently but an attempt to tactfully change sworn-statements.

"There is no winner and no loser in the constitution matter. The Second petitioner should not stop respondents from cross examining their witnesses. There is a fundamental right to be heard and the Court should be slow in the constitutional matter to limit the right to cross examine witnesses of the respondent," Mmeta said.

Mmeta said no single question has been raised on the character of Chakwera

"But that does not stop us on cross examining [on his conduct] when it is necessary," he said.

"Cross examination is a tricky business you never know which part of character would be relevant.

"We do not want to shut the door in the event that becomes necessary. That's why am saying, cross examination can be tricky, you never know," said Mmeta.

MEC lawyer Tamanda Chokhotho, who also raised objections to the application by MCP, said "there is no reason to panic" on the part of Chakwera.

Character evidence plays an important role in almost all jurisdictions. The character of persons has been used in order to determine cases for centuries.

The character of a person is a summary of his past actions whether good or bad.

The Court has said it will make its ruling on the matter later and the matter was adjourned at 12:10pm.

The case is being heard by a panel of five High Court judges comprising Healey Potani, Mike Tembo, Dingiswayo Madise, Redson Kapindu and Ivy Kamanga.

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