From the wall of Ayuba: Ben Phiri of ‘Jerusalem Bible College’ condemned as liar to shoot the truth in Malawi poll case

November 16, 2019 Silvester Ayuba James 51 Comments

Back to the Constitutional Court on Friday, few interesting things happened. They are noteworthy…

Ben Phiri: Biblical philosophy

Firstly, any competent lawyer as well as any ordinary reasonable person will agree that, in a court of law, there is more to what goes into the mind of a judge to sway him or her this way or that, than just the material before them.

This is more so in borderline cases where the evidence of the parties appear to run neck to neck such that it would not be so easy for any tribunal to pick a side and go to bed with it. But fortunately, this case is not like that… The case at the Constitutional court in Lilongwe, in my view, is a clear whitewash against the Respondents. Nonetheless, the psychological factors that transcend the materials of evidence in impressing a judge will still matter and are worth-commenting on.

Now, yesterday, the Petitioners started cross-examining the first witness of the Respondents, one Ben Phiri. From yesterday’s proceedings, one can easily tell the parties’ difference in their levels of confidence in their cases as reflected through their attitude towards each other’s witnesses.

On that front, while Kaphale and Mbeta were very rude and hostile towards the Petitioners’ witnesses, sometimes appearing to be intending to embarrass the witness and thereby drain his/her confidence, Dr. Chikosa Silungwe was very respectful and calm towards Ben Phiri. Could this be just because they were both PhD holders, since Dr. Phiri is the first PhD witness to testify in this case? Maybe yes… But, beyond that what some of us can read from that is the level of confidence by the Petitioners in their story.

The way Kaphale and Mbeta behaved towards Suleiman, Bendulo, Gwalidi and others simply underlined the extent and height of their desperation. To them, being harsh and disrespectful to the witness would mean intimidating the witness and draining his confidence thereby sending him off-balance so they could take advantage of that to overwrite their story.

If the witness lost his or her confidence and started making undue concessions, then they would grab that opportunity by its horns to forcibly push their story down the throat of the witness. This was a clear agenda that any intelligent person could see from the Respondents.

Elsewhere, this is called ‘litigation by bullying’ and it’s an approach only adopted by lawyers who have no good case but are desperate for a result. Unfortunately for the Petitioners, because the witnesses came with the truth, and truth has the natural tendency of raising your confidence, all the Petitioners’ key witnesses were too hard to crack.

Dr. Silungwe’s demeanour towards Ben Phiri, on the other hand, is clear demonstration that he was not desperate to get certain desired answers by hook or crook. He was at peace with his time and very natural in his approach. He never made the witness feel intimidated or bullied but still managed to draw from him all the right answers any prudent lawyer would be looking for.

Again, one could notice that, unlike the Respondents’ attorneys, Dr. Silungwe did not unduly require the witness to say ‘yes’ or ‘no’ for a question that was amenable to an open answer. He gave the witness all the latitude to explain his story without being trammelled in scope.

More often than not, what this implies at the bar is that the lawyer has nothing to fear in the story of a witness because the lawyer knows that the witness’s story has no potential to damage the lawyer’s case. And it also leaves the witness with nothing so significant to explain away during re-examination thereby rendering the re-examination a mere academic exercise aimed at hoodwinking your client that you put up a good fight, albeit the loss.

Kaphale and Mbeta could not do this. Most likely, therefore, the Judges would retire with a clear impression of who is desperate to suppress the truth and who is helping them uncover it. And this demarcation plays at a very deep level of the psychology of the bench, which could determine the way the Judges interpret very important facts before them. To me, thus, the rudeness and harshness in Kaphale and Mbeta towards the Petitioners’ witnesses as contrasted with the politiness of Dr. Silungwe is not just a matter of their characters as human beings. It is statement of their heightened desperation to hide the truth. It simply amplifies their lack of peace of mind.

The phrasing of questions is also one difference one would see between the lawyers of the two sides. You will remember that most of the questions by Mbeta and Kaphale were ‘If I put it to you that…’, ‘Confirm to the Court that…’ or ‘You will agree with me that…’ As I earlier noted in one of my analyses, such questions are not just a matter of fashion or design. They are intimately associated with lawyers who have created a false story and want to feed it to the bench through the mouth of the witness. Such lawyers, unlike Dr. Silungwe yesterday, do not ask direct questions. They fear the witness will detonate and the bomb of evidence will explode. It is only the lawyer who is so confident in the truthfulness of his story who will ask direct questions. And Dr. Silungwe was just an embodiment of that, yesterday.

But beyond that, one also has to see the biggest highlights in the performance of Dr. Silungwe in terms of what everyone could easily hear and see. It is not surprising that, after his brief appearance in the witness box, and levered as he is as their ‘field marshall’ in the blue camp, the Facebook cadets went hiding into their cocoons without bringing out the hype and noise that we all expected.

The direct play into his zone by Chikosa Silungwe forced Ben Phiri to head into his own net, at least three times. In summary, Ben admitted that duplicates were used instead of original tally sheets; that Tipp-Ex was used to erase figures and write new ones; and, most importantly, that results rejected by auditors were forced into the system by MEC.

His admissions on these three points were very unequivocal and simply nailing. Perhaps one thing that I found even more surprising from his explanation, if I got him right, is that when the auditors had rejected the results he got a communication from MEC that the results should be entered anyway. Did this communication go to all the parties interested in the election, and were the reasons for making this decision furnished to the parties? Why is it that DPP only knew about this?

And, in appreciating all these events, one thing that needs to be born in the background of the mind is that one central question that the court is seized, at least impliedly, with is whether the elections were free and fair. The fairness in that construction has a very simple ordinary test which, among others, includes transparency of the processes to all the interested parties…

Anyway…

One question that has also drawn comments from some quarters is whether it was proper for Dr. Silungwe to dwell on the academic qualifications of the witness. Some have argued that this was not proper because the witness, unlike Suleman, did not come as an expert witnesses.

I hold a contrary view and I have a reason. Perhaps a good one.

You will all remember the play of an audio recording of the MEC Chairperson by the cross-examiners in court as part of their evidence. The significance of that audio was, or still is, to contradict important aspects of the evidence of Ben Phiri who sought to impress upon the court that certain shady things done in the election were officially authorised by MEC as a matter of administrative arrangements meant to respond to the exigencies of the moment.

Thus, the play of the audio clearly unmasked the witness and exposed him to the Court as nobody but a condemned liar from the kingdom of hell who had descended upon the earth to shoot truth in the head. This picture of a witness as an untruthful person goes a long way in discrediting his testimony in the eyes and minds of the bench. Thus, in order to paint this in conspicuous colours, it was more than just necessary for the cross-examiner to demonstrate to the Court that the witness even lied to the whole world about his academic qualifications and the institutions from which he bought them.

Remember, this is a witness who is caught in one video telling a journalist that he obtained his PhD from Cypress University, and today he is on record telling the nation, before the Five Judges, that he did his PhD from Jerusalem Bible College, an institution that cannot be located anywhere on earth, not even just in papers.

One would, therefore, be wondering: is there anything capable of believing from this person? And the importance of raising this question in the minds of the judges cannot be overemphasised, hence, I will argue, it was a matter of prudence and good lawyering for Dr. Silungwe to pin down the witness on his academic background.

In any event, the moral integrity of the witness as attached to his testimony matters so much in creating the disposition and perspective from which the court would view his or her testimony. And so the damage caused yesterday is there for everyone to see for themselves…

In concluding, it is my sincere view that the appearance of Ben Phiri in Court yesterday is nothing more than a grammatical punctuation in the statement of re-run and, going forward, I am not sure what remains of him and his testimony requiring the cross-examination of Modercai Msisha, SC.

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51 replies on “From the wall of Ayuba: Ben Phiri of ‘Jerusalem Bible College’ condemned as liar to shoot the truth in Malawi poll case”

  1. I can read this article again and again. I like it coz it contains only the truth, the whole truth and nothing but the truth.
    Let’s take care of our fore fingers coz pompano tikaviikanso mu ink wa MEC.

  3. Nysasatimes editors, I recall in 2015 you had an article related to this Ben Phiri bogus papers It was from Patseni Mauka. It was well-detailed and is it possible to re-post it today so that some have a contextual background to it? Thanks in advance

  7. Ali ndi makutu anamva bwino lomwe kwa bwana phiri muumboni wawo…..zokuba ndi zokuba basi and imakwana nthawi zimabwela poyela zokha,ai tione kuti ndalama sizigwila ntchito kumapeto kwa mulandu uwu??? koma kunena zoona mmmmm ai oweluza aonapo kale zoyenela kuchita.MORE FIRE!!!!!!! Chilichonse chimakhala ndi nthawi osamaiwala ai…..

  8. BEN PHIRI ndamukonda chifukwa wanena zoona zonkhazonkha for your own information the Tippex thing was used by MEC Not DPP, dublicates its MEC not DPP, even rejected results by auditors was not used by DPP but MEC so mr B phiri is very true and the only person to EXPLAIN THIS BETTER IS MEC if a DPP tifuseni kuti Munawina the Answer is yes as announced by MEC

  9. DPP is full of crooks. Do you know kutiso even Bingu bought a PhD. Believe me. Pomwe amati Pali sukulu yomwe inampasa PhD ndi pamunda chabe. Alomwe afunika kumawawona bwino.

  10. The English and composition of words is excellent, but I choose to differ with the writer on the assessment of the Lawyers, Kaphale and Mbeta have been described as were rude when they were assessing the so called computer experts. Bendulo and Suleman as they came in the dock priding themselves as computer experts , wizards and with their good command of English people took them to be Graduates from Chanco or any other reputable College. When questioning them about their qualifications, they had none of the required qualifications to warrant them to be called Computer experts. I listened to the case on Radio, the Govt and Mutharikas Lawyers were simply going through a check list of prepared list of questions, there was no mocking or degrading or rudeness on the so called experts. At one point I heard Kaphale respecting Suleman by addressing him as a learned man.
    On the issue of Ben Phiri, the Minister was very composed answering straight yes or no and without jitters, from the start Silungwe showed it that he had a demeaning approach against Ben Phiri, when it came to questioning the Minister about his qualification, the Lawyer showed that he was there to humiliate and put Ben Phiri to shame and Embarrassment by asking him the Colleges he attended, the thesis he wrote and saying that he had qualifications from Diploma Mills(fake qualifications). I dont think that was friendly remarks in a court to a Minister? Mind you Ben Phiri did not come in the Court as an Expert, but simply as a witness and now the focus has been shifted from the case at hand to Ben Phiri and because of what Ben Phiri said as a witness, plus his qualifications the analyst has concluded that a rerun is on the card(I question the wisdom behind this statement or its in one way a statement wanting to influence the outcome of the case). The writer has shown that he is a supporter of MCP/UTM, His write up is not balanced and even most of the comments on it are also coming from its supporters. Many times I have read articles by analysts trying to influence the outcome of the cases, unfortunately some are coming from our Learned guys sitting on the bench representing MCP and UTM. Yet there were blunders and misrepresentations displayed in Court by the Witnesses and the so calle.d experts from the bench of MCP/UTM. Therefore this writer is a compromised person representing MCP/UTM no matter how many millions are supporting this article let the truth of the matter come out ,not trying to influence the panel of Judges by our so called analysing of the
    case wrongly and with personal interests

    4. Cadet kudandaula tsopano kuti mayo ine ,ndizagwira mtengo wanji kkkk, Ayuba ndakunyadira kwambiri ,hope you are also a lawyer ,

    5. Saunders, how about Ben Phiri, who is parading himself as a Ph.D holder, what do you say? What a shame, and in fact, there are many politicians in Malawi, who call themselves doctors, when in fact they are just assholes, and crooks who have never sat in a university classroom. People like these should be publicly humiliated and even jailed for lying about their credentials. I guess you are just like Ben Phiri, suffering from credibility malaise

  11. Article yothyakuka. Paja osaphunzira ife matama. Wa nzeru watolapo apa. It doesn’t need kuti ukhale ndi degree to understand or discern the the intelectualities ya ma lawyer a pa Malawi.

  15. Ayuba, are you sure Ben Phiri is the first PhD witness in the on-going case in the Constitutional Court? How about Dr, Lazarus Chakwera and Dr. Saulosi Chilima? Please justify your point. If you meant the first witness from the respondent’s side, that would have made more sense.

    5. A petitioner is one who presents a petition to an authority for action, thus Dr Chilima and Dr Chakwera…while a witness is A witness is someone who has knowledge about a matter. In law a witness is someone who, either voluntarily or under compulsion,provides testimonial evidence, either oral or written, of what he or she knows or claims to know.
      Wikipedia

    6. Yes, Ben Phiri is the first pertitioner in this case. Dr Chakwera and Dr Chilima are petitioners themselves not necessarily witnesses

    7. Kapado, Dr Chilima and Dr Chakwera are petitioners and not witnesses, don`t mislead people or follow the concourt case carefully.

  16. Well-written article and so balanced. I enjoyed reading it. It’s one pf those rare excellent articles on Nyasatimes.

    Well done Ayuba!

  17. THIS ARTICLE IS JUST CEMENTING THE POSITION THAT THROUGH THE COURT PROCESSES A LOT OF UN PROCEDURAL, ROTTEN AND FRAUDULENT PRACTICES HAVE BEEN UNCOVERED YET JANE ANSAH IS STILL MEC CHAIR?

  18. Even APM knows that a rerun is coming….have you not noticed that he has already started campaigning. He is spending taxpayers money going around the country just to thank people for voting for him, do you believe that, in essence what he is doing is to say to these people that vote for me again when the rerun comes.

  19. The analysis is very brilliant at least in the context of someone whose opinion is based on being sympathetic to the petitioner (MCP/UTM)This story will be liked by those who support MCP/UTM as well balanced and written story and will be castigated by those in DPP.

    Fortunately, none of these opinions coming from all sorts corners by the so called experts, will not sway nor change the course of the case let alone the verdict. The best we can do is to seat, listen and watch drama till the final hour

  22. For the first time people have positively appreciated the write up. My simple question Kodi chilima Ali ND PhD? Your saying Been is first to testify with PhD. Or poti ndiyakuba?

  25. Wait a minute, auditors rejected some results then mec orderd them to process without following any procedure?? If judges thinks Dpp stand a chance then its only because of corruption. Ben came with the truth. Did mec consult all parties or told them about processing results which were rejected by auditors? Let’s put love of money aside and come clean. Why did mec process results which were rejected by auditors???

  27. This writing is just something that only those who have eyes and ears can understand it, Ayuba what you have said here is just nothing but the truth, I had the same question you have raised here about the confirmation of continuing to use duplicate tally sheet, was all parties given that information to allow MEC to go a head entering same in that data?I have not heard any witness from Petitioner speaking about this, and even in this witness of Ben, it is not showing that all parties were involved in this type of communication. And again it just seems it was only DPP that was in this type of communication why? If all parties were, what was their response to that? Thank you.

    1. A wounded buffalo usually has only a mile to cover before total annihilation befalls it. Sweeping statements are normally dangerous. Zili tele, n’kulinga utafikako!!

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