The Constitutional Court sitting in Lilongwe Friday cautioned Attorney General (AG) Kalekeni Kaphale over the way he cross-examined UTM president Saulos Chilima arguing the questions touched on technicalities which could best be addressed by lawyers.
One of the judges in the trial, Justice Ivy Kamanga, observed that some of the technical issues raised by Kaphale could be well handled by his lawyers.
Among others, during the crossing-examination, Kaphale, who is representing Malawi Electoral Commission (Mec) – the second respondent in the presidential elections nullification petition case – asked Chilima to define some words based on electoral laws.
Kaphale asked Chilima if he were in agreement with each cited irregularity in the court disclosures and further asked him to identify the statutory provision that were breached by irregularities.
But lawyer representing Chilima, Marshall Chilenga, told the court that the matter is provided in skeleton arguments already submitted.
In his response, Kaphale insisted that what he was asking were factual issues based on the petition that Chilima made in his disclosures to the court.
Kaphale then accused Chilenga of over-protecting Chilima.
“My lords and my lady, this hedging by counsel representing the witness is not important because Section 100 [of Elections Act] deals with issues of irregularities, “Kaphale argued.
Meanwhile, the case is expected to attract about 800 witnesses.
One of the lawyers representing Chilima, Khumbo Soko, disclosed this to Malawi News in an interview on the sidelines of the court proceedings.
Kaphale has asked Chilima about nine things to bring as evidence.
Among others, Kaphale has demanded Chilima to bring evidence that some monitors in polling centres were being threatened and bribed by election officers as well as that he should show the court any submissions from monitors who complained about irregularities from the streams that were posted during the elections.
Earlier, the court sustained translation of the proceedings in English into Chichewa following a proposal by Chilenga to dispense with the process arguing poor quality of interpretation.
Lawyer representing Malawi Congress Party (MCP) president Lazarus Chakwera Modecai Msisha, Senior Counsel, also referred the court to how Parliament deliberates in one language despite having Chichewa as the country’s national language.
But responding to the matter, Justice Redson Kapindu shot down the application arguing the importance of the proceedings is not limited to the parties involved.
“The court has observed that the principle of open justice is generally applicable to court proceedings, same does not apply to parliamentary proceedings. The justice that is to dispense on this matter, unlike in many cases, is not limited to parties present, it extends to all those that participate in the elections on May 21 2019,” he said.
Chilenga also asked the court to cap time of cross-examination to expedite the proceedings.
Kapindu said the court shall not impose time for cross-examination.
“But the court shall still reserve the right to curtail where necessary. For all witnesses, the court will engage counsel and determine the time in which the parties are to be cross-examined,” he said.
But both Kaphale and President Peter Mutharika’s lawyer Charles Mhango shot down the proposal.
Kaphale’s cross-examination in the morning focused on roles of the monitors during the elections.
Among others, Kaphale wanted to know if it was reasonable for one to challenge results that monitors had authenticated.
He also questioned Chilima if lack of sworn statements from monitors de-authenticating the results is a sign that he does not agree with the vote count other than other issues.
Kaphale put it to Chilima that there are some forms that were not signed by monitors and anyone challenging the results on the form may have to show that their monitors did not monitor at a particular polling centre.
In his response, Chilima said there should be a reason for one to challenge the results even if monitors did no de-authenticate the results.
He also said the same applies to failure by some monitors to sign on the forms.
Since Mec declared Mutharika of Democratic Progressive Party winner of May 21 Tripartite Elections, tension has been hovering around the country, with some quarters disputing results of the elections.
Mec announced that Mutharika got 1,940,709 votes, representing 38.57 percent of votes cast, while Chakwera got 1,781,740 votes, representing 35.41 percent.
Chilima came third after getting 1,018,369 votes, translating into 20.24 percent of votes counted.
MCP and UTM are challenging the presidential election results in court, seeking nullification of the results.
The court started hearing of the long-awaited case Thursday.
Cross-examination continues Monday afternoon.