By Lord Denning SC 

Contrary to what the Democratic Progressive Party (DPP) Cadets and other like-minded people have made themselves to believe that the Attorney General scored a withering  (or is it weathering) cross-examination to the witness, I find his performance off the hook and, therefore, missed the target.

In essence, cross-examination offers a probative value that ought to subsist in establishing or discrediting the admissibility of the sworn evidence recorded by the witness.

In the present case, the Attorney General litigated the first applicant in a duty to discredit the sworn statements that the first applicant recorded in filing the case.

Basically, these sworn statements of the Petitioners form part (if not whole as long as they are held in conjunction with the other consolidated petitioners) of the basis of the case.

The end benefit of discrediting the basis upon which the case is filed is to persuade the court to establish that there is no case for the defendants to answer.

It is, therefore, expected of the defendants’ lawyers to ask questions that are meant to make the Court believe that there is no case for the defendant to answer.

However, it is my opinion that in the present case, the Attorney General failed to achieve that and I will explain below:

I heard the Attorney General telling the witness that his questions will not be based on the affidavits (the sworn statements) which the witness had made and told him that “you may put that file away” (meaning the file which contained his sworn statements).

That, to me, indicates that the Attorney General had no contrary material with which to discredit the affidavits of the first petitioner which basically formed the case and therefore avoided dwelling on them.

Indeed, living to his word, the Attorney General dwelled (or is it dwelt) much on asserting and asking the availability of laws governing the elections process and auxiliary elements such as formation of the electoral body.

But there is undesirable fate to that: Asking about the existence of law has zero probative value on the cause of the case. Existence of law (and perhaps a regulated procedure) does not guarantee non offence.

If it were so, no Court on earth would exist in any country as long as each country has laws. But we all know that is not the case.

Offences are committed right in the midst of the laws and actually it is the laws that establishes offences. Cross examining on the existence of the laws that governed the electoral process, therefore, was unprofitable exercise that the Attorney General undertook. It was basically much ado about nothing.

Well, the trial procedure invests reciprocal rights in litigants to re-examin their own witness(es) as well as cross-examining the opposing witnesses.

This basically mean that the lawyers representing the Petitioners will also have a chance to re-examine their own witness who was cross-examined by the defendants and also cross-examine the witnesses that are relied upon by the defendants in their defence.

The re-examination of their own witness (who was cross-examined by the defendants) will serve basically serve the purpose of persuading the Court to believe that there is, actually, a case for the defendant to answer.

If the Attorney General has managed to discredit the sworn statements of the witness (which he did not), the re-examination would be to primarily restore the credit by asking questions that would negate the impression that would have been created by the cross-examination.

In this case, therefore, the lawyers representing the petitioners will (if they choose to re-examine their own witness) do so with a mission calculated at strengthening or validating the sworn statements which the petitioners have recorded in filing their case.

Remember I have indicated that actually it is the existence of the laws that brings about offences when such laws are disobeyed. In the re-examination by the petitioners, therefore, it is expected of them to also point to the law that has being disobeyed by the elements indicated in the affidavits so as to have brought about the action in cause.

When it is the turn for the lawyers representing the petitioners, therefore, and if they choose to do so, we expect them to ask their client, questions that will persuade the Court to get to a conclusion that there is, indeed, a case for the defendants to answer.

Once the Court makes such a determination that there is a case for the defendants to answer, it shall mean, therefore, that the Attorney General and his crew will have suffered yet another preliminary defeat.

Am I loud enough?

DisclaimerViews expressed in this article are not necessarily the views of the Publisher or the Editor of Maravi Post

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