Mutharika of the governing Democratic Party (DPP), who was declared by MEC as winner in the presidential race, is the first respondent and the electoral body is the second respondent.
Attorney General (AG) Kalekeni Kaphale who is representing Malawi Electoral Commission (MEC) in an election petition case at the Constitutional Court in which two opposition parties are disputing the presidential election results, was on Wednesday blocked by lawyers for Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera from using a document not filed with the court to cross-examine the second petitioner’s third witness.
Kaphale presented a result sheet document for Rumphi Magistrate Court’s polling station as a reference material. The Attorney General wanted to use the new document in addition to the filed document fro cross-examining Peter Lackson Chimangeni.
But lead attorney for Chakwera, Modecai Msisha SC, questioned the rational of using documents not filed with the courts, saying that was not acceptable in the interest of justice.
Kaphale counter-argued that using an additional document for reference not filed as reference was permissible.
Msiska quashed Kaphale on that, saying the document would confuse the witness because it easy not referenced in the file for him to prepare in advance.
“Using the document that is not in court for cross examination is not allowed. If the court has to allow strange documents, it can ambush the witness,” said Msisha.
“Even if the documents are not disputed, the court should still say it is not in the sworn statement. In any event, the whole idea about the rules of procedure that are in place now is to give maximum disclosure of what each party’s case is,” he said.
“If the documents are not common to all of us, it does create a potentially dangerous situation because cases are about preparation.”
Kaphale conceded and the five-judge panel sustained Msisha‘s objection which led to the Attorney General to proceed with cross-examination without sneaking in the new document.
During cross examination Peter Lackson challenged the Attorney General that he has evidence in his sworn statements to display how votes were being reduced from those of Chakwera and asked if he could do so, but Kaphale systematically avoided that.
At some point, witness Lackson tried to insist to display his facts but Kaphale kept avoiding until judge Mark Tembo had to encourage the witness not to worry because the evidence is with the court already and should not bother trying to prove a point, as their judgement is not based on their interaction in the cross-examination.
Lackson told the court that majority of results on duplicate forms were different from results recorded on Form 66Cs.
He also told the court that log books will show massive tempering of results. And prayed for the log books to be is played in the court.
The court also learnt theta there were irregularities in a number of centres such as Livingstonia polling centre in Rumphi where Chakwera’s votes had been deducted by 98.
Kaphale has concluded his cross-examination of Lackson and said in an interview that he was satisfied.
“Just like any other cross-examination, you have a plan, a theory and push the theory to realise it and we have just done that,” he said.
Now President Peter Mutharika lawyer Frank Mbeta will cross examine him from two and half days as scheduled by the court.
Kaphale is representing MEC against a petition by UTM Party leader Saulos Chilima and his MC) counterpart Lazarus Chakwera, who applied to the court for the nullification of the 2019 presidential elections results, citing massive irregularities.