Back to the Constitutional Court on Friday, few interesting things happened. They are noteworthy…
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…
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.Follow and Subscribe Nyasa TV :