UTM Party lead lawyer in the ongoing landmark in the presidential elections nullification petition case has raised questions over the absence of the Malawi Electoral Commissioner (MEC) and other commissioners as witnesses in the case when first petitioner Saulos Chilima on Thursday outlined his final oral submission to the court through his legal team.
Lawyer Dr Chikosa Silungwe made the questions on Thursday afternoon when he was presenting his final submissions to the court.
Silungwe said the Attorney General Kalekeni Kaphale, who is representing MEC (the second respondent) in his capacity as government’s chief legal adviser, questioned the absence of poll monitors by petitioners as witnesses to the case but has failed to provide an explanation why MEC commissioners were absent.
He said Ansah and the other commissioners had specific constitutional duties.
Silungwe said there is no law which forces election monitors to give evidence during an election case.
Apparently, Silungwe’s reference to the Commissioners, has been fully backed by the Malawi Law Society (MLS) which in submission indicated that a party that fails to bring its key witness to court when that witness is alive must be taken to account because its exclusion is out of fear that “such a witness might have given testimony adverse to the case of the party.”
Asked by the president judge Healy Potani if the Commissioners were material witnesses, Silungwe said that this should be the case considering most of the issues kept on refering to the commissioners but none came forward.
On the AG’s accusation that monitors never brought a case or complaints, Silungwe said there is no law that says elections are run by monitors, hence, they don’t have legal rights to bring election disputes to courts. The same line was advanced by Women Lawyers Association.
Silungwe also contended that “there is no law that says that in an election dispute, the only evidence that must be believed is that of a monitor.”
In concluding his submission, Silungwe said the monitors were not the Commission and that Monitors were not public servants.
“The majority of evidence in this court is Form 66 C as produced by second respondent (MEC) which is the public institution.
“Where is chairperson Ansah, this is pertinent question because Section 75 establishing the Electoral Commission will lead us to find human beings embodied in that commission which includes chairperson Ansah and other commissioners. They haven’t testified in this court,” said Silungwe.
“MEC is a constitutional body and the stakes are high in the expectation on the citizenry in relation to the public institution and its discharge to the constitutional duty,” he added.
Silungwe reiterated that the petitioner prays for the nullification of the May 21, 2019 elections basing on the massive irregularities that have been proven throughout the trial.
Commenting on the contentious burden of proof, Silungwe said he agrees with Women Lawyers Association that the burden of proof is dual once the petitioner outlines a prima facie of the case to the court. Silungwe said, “Sadly the Malawi Law Society is oblivious to that fact.”
He said the first petitioner has throughout the case managed to prove his case through various witnesses highlighting the irregularities that second petitioner, the Malawi Electoral Commission committed when administrating the elections.
At the time of posting this news online, lawyers for the second petitioner MCP president Lazarus Chakwera had started their final oral submission before the respondents take their turn on Friday, which marks last day of the whole hearing journey.
The court is then expected to give ruling 45 days after December 21 with sources in the Judiciary indicating that the judges hearing the case; Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo have given themselves not beyond January 25.
In the case being heard by the High Court of Malawi sitting as the Constitutional Court, the petitioners want the court to nullify the presidential election results in the May 21 Tripartite Elections over alleged irregularities, especially in the results management system.
President Peter Mutharika of Democratic Progressive Party (DPP), by virtue of being the declared winner of the presidential race, is the first respondent.Follow and Subscribe Nyasa TV :