ConCourt rejects UTM lawyer’s application for one lawyer in cross examination

The Constitution Court  (ConCourt) sitting in Lilongwe has rejected a plea by UTM lawyer Marshall Chilenga for an improved case management during cross examination to have one senior lawyer for a particular respondent be given an opportunity to ask the witness questions.

Out of court: Attorney General (AG) Kalekeni Kaphale, who is representing MEC in the presidential election petition case.

UTM lawyer Marshall Chilenga made the application on Thursday soon after the court reconvened from lunch break.

“My Lords and Lady, during the break I came across two cases that can help us in case management especially on how a counsel can cross examine a witness in court. We would want to have one counsel to cross examine the witness when several counsels are representing one defendant in the same in a case,” said Chilenga who cited Chippendale vs Masson and Gapinski vs Gurati, 2017 Illinois appeal third circuit ruling cases which cement his argument.

However, judge president Heally Potani on behalf of the five-panel judges on  Friday morning rejected the plea even though the Attorney General Kalekeni Kaphale, who is representing MEC in the presidential election petition case,  did not respond to the plea saying it was a straight forward issue

“The court has considered the authority that counsel provided and we have noted that it was made outside the country. Though it is highly persuasive, it is not binding. A local authority could have been better and binding mainly if it was the Supreme Court of appeal,” said Potani in making a ruling.

“In any event, all along in the proceedings the first petitioner (Saulos Chilima of UTM)  has been insisting that there must be a clear demarcation between the two respondents having in mind that the first respondent (President Peter Mutharika of DPP) was a contender in the elections while the  second respondent was a referee and neutral,” said Potani.

He said in respect of multipal counsel for purposes of expedition court will limit cross examination to only two lawyers to each party to cross examine or re-examine the witness “on strict conditionality that there will be no repetition of question. This was also in court’s earlier direction.”

On Thursday, Chilenga told the court that cross examination should be done by a senior counsel among the  lawyers for the good conduct on the matter.

“My plea is for both the first and second respondents on this matter,” said Chilenga.

Chilenga’s plea came after the Attorney General earlier on in the morning indicated that after he is done questioning first petitioner’s second witness Mirriam Gwalidi, his colleague Tamando Chokhoto will come in to deal with the amended sworn statement.

However, Kaphale told the court that they were taken by surprise with the first petitioner’s plea.

Kaphale continued  croos-examination of Mirriam Gwalidi, who worked as UTM roving monitor but was stationed at the Main Tally Centre in Blantyre, before the case was adjourned to next month.

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Acalpulco
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Acalpulco

No wonder certain lawyers always recommend to settle out of court.

Acalpulco
Guest
Acalpulco

That’s the problem with foreign educated lawyers,,,they use foreign precedents kkkkkk. Izi ndizomwe kaphale laughs in court ma judge nkumamulesa kkkkkkk. I hope this means the judgement made in kenya has no binding here in Malawi

Sebbi
Guest
Sebbi

This court of Judges sitting in Lilongwe are indeed juniors and believe you me it has been noted by many lawyers outside court that the Judges and Kaphale convene a meeting in the evenings after court session.

Mbwiye
Guest
Mbwiye

Tiyenazoni. Izizi a mtambo ndi a trapece azimva or azikapatsidwa ma recordings. Apapa mwina akuganiza kuti mulandu watha. I bet ask trapece, thats his thinking. Mumva ndithu akukuwa.

Ignatius
Guest

Chilenga is an educated fool

Allahiminah
Guest
Allahiminah

Kaphale controls the Judges since all of them are his juniors

Destroyer of liars
Guest

Kaphale is not a judge. He is just the head of government lawyers. I am sure he is junior to judges. He can’t be above the chief justice who heads the judiciary. Does Kaphale head any arm of government?