Malawi: Ben Phiri's Testimony a Distortion of Facts, Says Lawyer Msisha

25 November 2019

Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera's lawyer Mordecai Msisha - senior counsel - has said President Peter Mutharika's first and key witness Ben Phiri's testimony was full of distortion.

Ben Phiri: Enters re-examination

Msisha made the remarks in an interview after he finished cross-examining Phiri, who was Democratic Progressive Party (DPP) director of election during May 21 polls.

Phiri, who is also Minister of Local Government and Rural Development, is one of the two witnesses of Mutharika, the first respondent in the ongoing presidential election petition case in the Constitutional Court sitting in Lilongwe.

"I am okay with the issues that we raised because we have an objective to show that the witness may not have been basing matters that were put in his statement that are made under oath. The statements were not based on factual issues but based on his understanding in what Malawi Electoral Commission (MEC) position was, in so far that understanding suited the first respondent (president Mutharika)," said Msisha.

He added that, "so I think there was a measure of distortion of positions in order to fit the whole evidence into something supportive of the conclusion that he keeps on to assert that there was nothing wrong in the process."

Soon after cross-examination, Mutharika's lawyer Frank Mbeta commenced re-examination tackling issues on irregularities such as the use of 'fake' or duplicate tally sheets against the originals.

Phiri stood firm that originals were used although not more than 500 duplicates were used in some instances.

In the morning, Msisha started his cross examination by enquiring if Phiri discussed anything to do on various irregularities that occured during the tallying of the votes in the May 21 elections and if the two had any interaction on the indipentend auditors report.

Phiri told the panel of five judges hearing the case that he discussed with Mutharika on the irregularities but did not discuss about the auditors report.

Although he indicated that he talked Mutharika on the use of reserve tally sheets, he said he did not tell him about security features on the said tally sheets.

On the use of tippex, Phiri said he understood that it was used to correct mistakes by presiding officers which were committed because they could not understand some terminologies on the tally sheets.

"In relation to use of tippex, did you inform [President Mutharika] that tally sheets had tippex on them," asked Msisha to which Phiri answer was positive.

Phiri told the court he told Mutharika that there was misunderstanding of various terminology by MEC Presiding Officers hence mistakes were made and needed to be corrected with tippex mainly in the reconciliation part.

"Did you discuss with him where this tippex came from?" Msisha asked

"No," Phiri answered.

However, he could not say that it was the best way of correcting mistakes as the Malawi Electoral Commission (MEC) did not officially communicate to parties on how these mistakes would be corrected.

In his sworn statement, Phiri indicated that all duplicate results sheet used were dully signed by all parties monitors, a point which was contradicted during cross examination.

Msisha shown Phiri some duplicate results sheets which were used during the elections before asking the witness to confirm if all monitors for elections signed the documents,which he responded with a negative.

"Do you maintain that all monitors signed duplicate results sheets that were used?" asked Msisha.

"No with an explaination," he answered.

Mbeta is expected to finish the re-examination on Tuesday morning.

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