Chilima and Chakwera

With this sudden proliferation of “lawyers” on Malawian social media, those truly inquisitive people who genuinely want to understand what is happening in the constitutional court on the elections case are getting confounded and confused.


“Legal opinions on the case are predictably divided along party lines. Some social media “lawyers”, sympathetic to the Democratic Progressive Party (DPP), have already concluded, based on the few days of testimony by Dr Chilima and the questioning theme of Malawi Electoral Commission (MEC) lawyer Kalekeni Kaphale, that Chilima has bottled it and that his claim to have the election results nullified will be unsuccessful. Their main objective is to demoralize those supporting Chilima (SKC).


The opposing view, though, is also quite prominent. It is that of the people in support of the Chilima/Chakwera petition and in their brilliant “legal” opinions, Kaphale’s cross-examination of Chilima reveals a lawyer bankrupt of ideas and clutching at straws. As far as they are concerned, their brilliant SKC is beating him at every turn with his answers and there’s no way SKC can lose the case.


In my view, both sides are desperately wrong, and the opposing and confusing narratives and opinions flooding the social media on this issue reveal nothing but the severe need for some basic civil education on the justice system in Malawi.


The truth of the matter is that it is quite simply too early for anyone to tell at this stage which side of the dispute has a strong case. Come on now! Not even a single piece of evidence has been tendered yet!


Essentially, in every case of this nature, the respondent (in this case MEC) is given an opportunity to cross-examine a petitioner on the sworn statement that the petitioner filed with their petition. In doing this, the respondent tries to tear apart the claims made by the petitioner and position their side of the case as seeing no merit in whatever was claimed in the sworn statement. This is that the Senior Counsel has been doing so far. It is not up to anyone except the judges to determine whether he has done a good job or not.


Having cross examined the first petitioner, the respondent will also be given an opportunity to go through exactly the same paces with the second petitioner, Dr Chakwera.


Up to the completion of this exercise, it is futile and somewhat ridiculous for any commentator to claim that the responses by the witnesses are so good that the cross-examining lawyers have already lost their case, or vice versa.


After both petitioners have been cross-examined by the respondents, there will come the turn of the petitioners first to re-examine their own witnesses, and then, later, to also cross-examine the witnesses of the respondents on their sworn statements which they filed to defend themselves. It is during these two scenarios- the re-examination and the cross-examinations of respondent’s witnesses- that much of the evidence regarding how the election was conducted will be tendered, including any fake documents, tipp-exed results, and all other evidence that the petitioners claim to have.


Again, the only opinion that matters as to whether any of the parties at that stage has made a convincing case is that of the judges.


Those that are following the case therefore need to follow it with calmness and peace of mind. There is no cause yet for alarm on the part of those hoping that the Petitioners will succeed, or any cause yet for celebration on the part of those cheering for MEC and Mutharika in the case.


It is simply too early and there is yet a long way to go to a decision one way or the other.