A presidential election petition challenging the re-election earlier of President Peter Mutharika in May was always going to be a politically charged occasion and indeed on Thursday when a five-judge panel of the High Court sitting as the Constitutional Court started hearing the case, it was heated.
UTM Party president Saulos Chilima as the first petitioner and Malawi Congress Party (MCP) president Lazarus Chakwera as the second petitioner are asking the court to nullify presidential results in the May 21 Tripartite Elections.
The start was mixed with surprises as the court initially threw out the Attorney General’s application to adjourn the matter, citing the late service of documents in the matter.
Meanwhile, Chilima, the country’s immediate past vice-president, has started giving evidence and is being cross-examined by the respondents in the matter.
President Peter Mutharika of Democratic Progressive Party (DPP), in his capacity as the declared winner, is the first respondent with Malawi Electoral Commission (MEC) as the second petitioner.
Attorney General Kalekeni Kaphale, a Senior Counsel (SC), coming into the case for MEC as government’s chief legal adviser, bombarded Chilima with questions about activities of the polling day and roles of various players on the elections including the Candidates, and MEC.
Chilima, answering questions from Kaphale, told the court that there was no fraud during the elections and that his monitors signed for the correct results.
“In your petition you only cited irregularities and not the word fraud. Can you confirm that you did not use this word and that your counsel is on the wrong path?” Kaphale asked Chilima.
“No use of that word,” said Chilima in his answer.
When quizzed as to who is better placed to challenge the election results between himself and his monitors, Chilima told the court that it is his monitors who are better placed to challenge the results from the polling stations, and that none of his monitors has so far come up to challenge any of the results.
“I can confirm that none of my monitors has challenged the results,” said Chilima in reply to a question to the Attorney General.
Kaphale had earlier made Chilima to read specific provisions in the law and specifically drawn Chilima to section 72 (1) of the Presidential and Parliamentary Elections Act which discusses the role and rights of the party monitors during elections.
“You would agree with me Sir, that these elections were monitored from stream level upward?’’ Kaphale asked.
Chilima replied: “That’s the correct expectation.”
The exchanges between the two continued with Attorney General asking: “Are you saying there were no streams?”
In his reply, Chilima said: “There were people in the streams.”
Kaphale then moved his questioning on results management. He asked: “Would you agree that the final results were an aggregation of all the results in all the streams in the Country?”
Chilima said: “That’s the expectation.”
Attorney General further put it to Chilima that the primary data record is the stream results in the disputed election in which he said “that’s correct.”
Quizzed on how many streams had no monitors, in terms of percentage, Chilima said he had no figure on that.
Chilima was also asked to confirm to the court that UTM party was advised to strictly check the counting of the votes.
“My Lord, my Lady, I confirm the instruction,” said Chilima.
Kaphale then said to Chilima: “Because valid votes are the ones that determine the winner. It’s remarkable that no monitor has told the court that the votes were marred with irregularities.”
In which the UTM president replied: “My lady, my Lord. That’s true in some cases.”
Cross-examination by Attorney General will continues on Friday starting at 9 am and then on the MEC side, Tamanda Chokotho, another serious litigator hired by MEC from private practice as lead lawyer who was mentored by Kaphale himself will have his go on Chilima.
Frank Mbeta, a private practice lawyer representing Mutharika, is also set to cross-examine Chilima.
When MEC and Mutharika lawyers are done with Chilima, other friends of court who joined the matter would also cross-examine the first petitioner if they find it fit.
From there, Chilima’s lawyers would take the floor for re-examination, a process where lawyers try to make their client explain certain things they feel were discredited during the cross-examination which is usually unfriendly.
Judge Healy Potani said the court is happy the proceedings have started and expressed hope the proceedings will continue smoothly.
The case is being broadcast live on radio and TV stations but only audio options are available, not live visuals.
The proceedings are also in both English and Chichewa – the national lingua franca. The presiding judge noted that this is to allow every Malawian to follow the case and not be left behind.
Chilima and Chakwera are challenging results of the presidential election which MEC chairperson Jane Ansah declared was won by Mutharika. The results indicated that Chakwera was second and Chilima third.
Chakwera contends that Mutharika “won a fraudulent election” fraught with irregularities, including alleged stuffing of ballot papers with pre-marked ballots, tampering with election results sheets through correction fluid and being found in possession of result sheets at home.
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.