By LordDenning QB
The Malawi Law Society (MLS) on Thursday had oral and written submissions to Constitutional Court in the ongoing Presidential Election Case, therefore I will proceed to its contents head by head with necessary considerations as follows:
ON BURDEN OF PROOF
The MLS has averred that the burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting. This is an invention of a new state of affairs, which falls afoul with the known position of the law.
The position of the law on this issue is non-bending. It states that once a prima facie case has been established (i.e the claimant has supported his claim with valid evidence), the burden shifts to the defending side. Thereon, the burden keeps shifting to and fro between the two sides on all incidental claims.
In fact, the burden keeps on shifting to the party that stands to lose on a determination if the Court was to make a determination at that point. Therefore, it is up to that party to take this burden seriously or suffer loss. It is that simple. The MLS position on this point therefore, is untruthful and entirely strange.
ON STANDARD OF PROOF
The MLS has admitted that is is a civil matter and that the standard of proof is on a balance of probabilities. This assertion cannot be successfully contested.
However, the MLS has purported to suggest to the Court that processing the allegations and the evidence thereto, the standard of proof should keep on oscillating (changing) between balance of probability and a standard higher than it.
The argument is that serious allegations should be accorded higher standard proof and less serious allegations should be apportioned the civil proof regardless within the same case. I, RESPECTIFULLY, DO NOT AGREE WITH THIS. The reason is as below:
A case that comes before the Court is specifically classified either as a criminal matter or as a civil matter. The standard of proof is clearly two-fold: Beyond reasonable doubt – where criminal matter is in issue AND on balance of probability – where civil matter is in issue. All parties including the amici have admitted it that this is a civil matter. The exercise of trying to invent new requirement of standard of proof, therefore, is not only in bad faith but also an attempt to disrespect the path that the Supreme Court of Appeal in Malawi has constructed over the years.
ON ADMISSIBILITY OF HEARSAY EVIDENCE
The MLS has been shy to state its own position. Instead, it has ended its input on the same by highlighting what the Supreme Court of Appeal stated in Malawi Savings Bank Limited -vs- Malidade Mkandawire (trading as) Malangowe Investments. The short and length of it in this case on the issue is that hearsay evidence is admissible in Court where relevance falls. As to what constitutes this relevance, the MLS did not extend its duty to its explanation. Well, as long as it is admitted that the same is admissible, let us put our mind to holiday on the issue.
ON EFFECTS OF (NOT) BRINGING WITNESSES TO COURT
The MLS has made its opinion on this issue through the aid of a 2009 case of “BP Malawi Limited -vs- NBS Bank Limited” AS WELL AS a 1991 case of Maonga and others -vs- Blantyre Print and Publishing Company Limited.
The position so formed is that a party who does not bring a material witness to Court when such material witness is alive and capable of coming to testify risks the Court holding that reason such material witness was not brought to Court is because the witness would have given testimony adverse to the case of the party. I MAY AGREE WITH THE MLS on this point.
In the on-going proceedings, the Electoral Commission and the DPP failed to bring their key witnesses. For example, in the case of MEC, none of its Commissioners (though central to the case) came forth as witnesses. In the case of DPP, the Respondent himself (APM) did not appear to testify on anything at all.
ON NON COMPLIANCE TO DISCLOSURE
The position of MLS on this issue is that a party who fails to disclose documents after being directed to do so by the Court exposes itself to adverse inferences on the subject matter. I AGREE WITH THE MLS on this point and proceed to add that apart from this exposure to adverse inferences, the non compliant party essentially limits own right to validly defend itself against any such adverse inferences. The 2014 case of R -vs- Oswald Lutepo ex-parte Joyce Banda assists both the MLS and Myself on this point.
ON EXPERT WITNESSES
The MLS has asserted that both the 2nd Petitioner and the 2nd Respondent paraded ICT expert witnesses. The MLS has therefore bemoaned the fact that the Court did not invoke, for following, Order 17, Rules 17-21 of the Civil Procedure Rules, which they contend that must be invoked and followed. I, will, for purposes of relative brevity, avoid importing the statements of this Order.
Regardless of the said Order and Rules thereto, it in my contention that neither Daudi Suleman nor Muhabi Chisi appeared as Expert Witness in the sense of who an Expert Witness is. It is on that very basis that the Court overlooked the said Order in the CPR.
Expert Witness appearing before the court should be, and should be seen to be, the independent glossator of technical knowledge incidental to the trial and must not be uninfluenced as to form or content by the exigencies of litigation (my own opinion and word). It is in that contemplation that an Expert Witness is not supposed to be a “hired gun” for firing the other party.
Both Suleman and Chisi were hired guns for the MCP and MEC respectively. None of them came with the inclination to be impartial cryptographers of technical issues regardless the fact that the Court remained assisted by their testimonies. But that assistance falls in the same category of all testimonies that were heard in the proceedings. Their uniqueness being that they bore a privileged knowledge on the incidental issues.
Even if we are to consider both Suleman and Chisi as expert witnesses, although they were not, discretion is upon the Court on how to make use of them.
CONCLUSION
The length and breadth of the 1st Amicus Curiae (the MLS) has been a picture of that of a gun hired by DPP and MEC (the Respondents). The claim that the MLS has embarked on its Brief exclusively in aid of the Court and not in support of any of the parties to the litigation is but a proud exhibit of a blatant lie. I hereby trash the said claim in its entirety.
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