Democratic Progressive Party (DPP) supporters down with the ruling
LILONGWE-(MaraviPost)-The Malawi Constitutional Court (ConCourt) on Monday evening, February 3, 2020 nullified the May 21, 2019 polls over numerous irregularities that marred the elections.
The court has therefore ordered fresh elections within 150 days including weekends and holidays.
The court has therefore sustained Dr.Saulos Chilima of UTM as the country’s Vice President.
This means Everton Chimulirenji tenure ends as VIP.
Malawi Congress Party (MCP) Lazarus Chakwera needs however to go on drawing board on the next move whether to partner with Chilima ahead of fresh elections.
Delivering the judgment, the lead judge of the five judges, Justice Hiley Potani said the presidential elections results were full of numerous and systematic anomalies which can only be washed clean through fresh elections.
Commenting on the announcement, Dr Chikosa Silungwe, who was the lead counsel for the first petitioner in the case, Dr Saulos Chilima, said he was very contented with the outcome of the case.
Silungwe said: “I am very contented that the court asked us to answer three Constitutional questions and the court has based on our arguments. The Parliamentary and Presidential Elections Act defines an irregularity in very simple terms as noncompliance to the law. So, we cannot have a public institution operating without an enabling legislation.”
On his part, Chancellor College based political analyst, Dr Enerst Thindwa, said the pronouncement of the judgment on its own, in favour of the petitioners is a clear maturity of democracy.
“This simply shows that democracy has triumphed. And that shows that our democracy is maturing.
The court has pointed out the irregularities which were there and Malawians have also been satisfied with the judgment,” said Thindwa.
On 3rd February, 2020, a panel of five judges which comprised: Justices Hiley Potani, Ledson Kapindu, Dingiswayo Madise, Mike Tembo and Ivy Kamanga, delivered the long awaited judgment which took them 45 days to compile.
Chilima and Chakwera against Mutharika on Malawi’s presidential election case
LILONGWE-(MaraviPost)-The much awaited Malawi Presidential Election case ruling is set to be made on Monday, February 3, 2020.
This means that 14 days to go within which the Constitutional Court is expected to deliver its verdict on the matter.
Registrar of the High Court and Supreme Court of Appeal Agness Patemba has reiterated judgment will be delivered within 45 days according to the law.
This,essentially means that the judgement could be delivered any day between now and February 3,2020 which will be the 45th day.
There are, however, concerns to the effect that the verdict will not address the country’s ailing political situation.
Experts have therefore suggested political leaders must find a political solution to the crisis.
The opposition Malawi Congress Party (MCP) and UTM sought the court redress on May 21 2019 polls over numerous irregularities that witnessed incumbent President Peter Mutharika sworn in for the second term.
LILONGWE-(MaraviPost)-Malawians are using their hard earned taxes to pay lawyers for the Democratic Progressive Party (DPP) in the election nullification case despite the party being in the case a private entity not government.
All the lawyers both for Malawi President Peter Mutharika and DPP are being being paid by government through Kalekeni Kaphale in his capacity as Attorney General.
We can exclusively reveal that the following payments were fraudulently made from the Government coffers:
Through Chirchill, Norris & Foster, Tamando Chokotho got paid MK147,683,184.00 while through
Pious Attorneys, Christopher Masanje recieved K43,020,207.00.
Former Justice Minister Samuel Tembenu through Masumbu & Company was paid MK69,609,331.00 while Charles Mhango with his Mhango & Company smiled home with MK130,035,795.00 while Chancy Gondwe was paid MK132,000,000.00 by the Malawi tax payers.
This means that so far the tax payers paid the layers a whopping MK522,348,517.00
We can also reveal that there are other pending payments awaiting processing by the Attorney General, in excess of MK1.1 billion.
LILONGWE-(MaraviPost)-The day of judgment in the historic presidential elections case is not known—it may be within the next 45 days, or more, or less—but come what may, it will come after the Constitutional Court (ConCourt) on Friday heard the last of all arguments by all parties to the case.
Saulos Chilima and Lazarus Chakwera, the two petitioners and presidential candidates seeking the nullification of the May 21 presidential elections that re-elected President Peter Mutharika were once again in court—as they have done on most of the 61 days the court has sat in the capital.
In front of them, a team of now battle-scarred lawyers, silver haired senior counsels to young lawyers supporting their titanic battles and in front of all—a panel of five judges: Justice Healey Potani, Ivy Kamanga, Dingiswayo Madise, Redson Kapindu and Mike Tembo—who are now faced with making the most momentous decision any Malawian court has ever made.
If they nullify the petition as prayed for by the presidential candidates who finished third and second in the disputed official tally—they will only become the second court ever on the African continent—after Kenya’s, to cancel a presidential election.
But this is the first time an election referral has reached this stage in Malawi. And it has done so to the backdrop of a huge political crisis and gripped the attention of the whole country with the 17 million Malawians unprecedentedly able to follow all the court hearings via mass media.
At 7.39pm, Justice Potani, the head of the judges’ panel, drew the curtain to the hearings, firing his shot to the public—urging calm as the country now enters a period of deep suspense and anxiety.
“The court has the evidence and submissions from the lawyers and also submissions from Friends of the Court. From the submissions, one gets the impression there are lot of grey areas in the application and interpretation of the various laws.
“It’s now in the hands of the court to carefully look at the evidence, evaluate it and make its final determination based on the evidence. All things being equal, the determination shall be made within the period stipulated by the law,” said Potani.
He then turned to the parties to the case and reminded them that the determination may go either way and that they will have an opportunity to appeal to the Supreme Court.
The lead Judge, however, warned that the court will be forced to act if the parties react to the ruling in a manner that will undermine rule of law.
Potani specifically urged the parties to the case to ensure that their supporters react to the ruling peacefully.
After the judges left the room, Chakwera and Chilima, who had watched the proceedings motionlessly, often stone-faced, plus their party functionaries, jumped to their feet—hugging each other and their lawyers.
Chilima, the former vice-president to Mutharika, his face beaming, went to “congratulate” the rival lawyers after ‘high-fiving’ his legal team and Chakwera’s legal team.
As dusk gave way to evening darkness, Potani adjourned the proceedings “to a date to be announced later.”
Attorney General Kalekeni Kaphale, who was representing the Electoral Commission in the case, said in an interview, the decision may be “within 60 days”, but he was not sure of the precise constitutionally stipulated period.
Senior Counsel Modecai Msisha told journalists elections cases are decided 14 days after end of hearing but in the Constitutional case, “and bearing in mind the large volumes of evidence,” the court may deliver its judgment within a stipulated period of 45 days.
Earlier, the court witnessed the final stages of a dramatic hearing with the Attorney General and lawyer representing Mutharika, Frank Mbeta, on one side, against the wit of Msisha and Chikosa Silungwe, the lead counsel for Chilima.
The Attorney General summarised his defence of the elections, telling the court: “I would submit that there hasn’t been any demonstration of any breach of Section 76 or Section 77 of the Constitution.
“Most importantly, I would submit that even where the section of the Constitution has been breached, it must be demonstrated that it affected the results of the elections. If 10 people have been stopped from voting, that is breach of the Constitution, but has it affected the results?” argued Kaphale as quoted in the Weekend Nation Newspaper.
Earlier in the day, the High Court in Blantyre had nullified the parliamentary seat for Mangochi West Constituency and Silungwe asked the court to follow suit.
Both Mbeta—who was supported by former Justice Minister Samuel Tembenu— and Kaphale, focused extensively on challenging the evidence by Daud Suleman, one of the key witnesses for Chakwera.
Suleman, the IT guru demonstrated during the hearing how the Electoral Commission’s result management system (RMS) was allegedly compromised and manipulated to rig the elections in favour of Mutharika.
Kaphale and Mbeta, separately argued that Suleman’s testimony to the court did not at any point demonstrate that the results which were produced in the RMS were incorrect or different to the results which the parties registered at the polling centres.
But when Msisha had a chance to reply, he told the court that Suleman testified to the processes of the RMS and how there have been departures from the processes and how that departure must cast doubt to the results.
“He provided evidence that demonstrated that the RMS had been interfered with; hence, there were missing triggers in the data base. There is some misrepresentation of the evidence by Mr Suleman but the deletion of data and deletion of triggers are adequate testimony,” Msisha told the paper.
Kaphale and Mbeta, also argued, separately, that the opposition case was weaker because they allegedly failed to deliver in court the monitors who witnessed the results. Kaphale added that MCP which had its own parallel tally centre also failed to produce in court the results that its centre recorded.
Kaphale said incidents of various irregularities were evenly distributed throughout the country and did not benefit Mutharika alone, arguing that evidence in the court had also shown that even the petitioners benefited at some point.
“These were random events,” said Kaphale, adding that MEC asked the parties during the result management period to bring the results from their monitors but the parties asked for a recount (second petitioner).
But Msisha and Silungwe separately shot back, arguing that the law places management of elections in the hands of the commissioners.
In some instances, Silungwe cited the public administration laws, which clearly spell out MEC’s duties, but argued that the electoral body had neglected those duties.
Msisha told the court that evidence tendered in the court had demonstrated that most of the tempering with the votes had occurred when the results had been transferred from the polling centres to constituency tally centres while Silungwe noted that presiding officers had in most incidents already given sworn statements on the results and there was no need for monitors to testify in court.
“There is nowhere in the law that says monitors shall deliver results to the national tally centre to ensure that the results are delivered without being altered. It’s clear from the evidence that the alterations were done in the absence of monitors. The evidence is clear that the law says there should be an inquiry before accepting such results and it was not done; the evidence is clear that the alterations were not correcting mathematical mistakes,” argued Msisha.
While the judges have mostly watched the hearings with minimal interventions, during the final submissions, Justices Kamanga and Kapindu took turns firing questions to both petitioners.
When the Attorney General argued that invalidating the results because presiding officers did not sign for the results would encourage the presiding officers to use that as a way to invalidate results, Justice Tembo asked if any of the presiding officers have been arrested for failing to sign for the result sheets.
Justice Madise also, at one point, asked Kaphale if incidents of ballot papers missing should be a reason for concern unlike his insistence that the court should only focus on ballots cast.
Kaphale insisted, if the cast ballots are accounted properly, “that is what elections are all about”, arguing “ballots can miss, but votes cannot miss.”
Justice Kapindu asked the Attorney General in another exchange: “What about a case where there is an excess of ballots? Because you have given a possibility that people can take ballots and walk away without casting their votes, which can create a shortage in terms of votes cast?
Justice Kamanga asked Kaphale whether he thought all the challenges with alterations could have been avoided if the RMS was not used. To the question, Kaphale for the first time, appeared to struggle to answer, signalled to the bar, the answer couldn’t come from him alone.
Soon after, the court went on a short break on Kaphale’s request. When it reconvened it concluded business hearing whether the elections were indeed marred by serious irregularities or blatantly rigged or not.
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.
…………….Views expressed in this article are not necessarily the views of the Publisher or the Editor of Maravi Post.
Women Lawyers Association (WLA) lawyer, Bernadette Malunga
LILONGWE-(MaraviPost)-The Women Lawyers Association (WLA) lawyer, Bernadette Malunga told the constitutional court under way in the capital Lilongwe this morning that that every voter’s vote is important and is equal.
Malunga therefore told the Concourt must look into that when determining the matter.
She says, the duty of the court in this case to assess whether the May polls were free and fair.
Malunga therefore observed that any breach of a single law by Malawi Electoral Commission (MEC) in May 21 polls meant that the candidate who won was not duly elected.
The court continues hearing oral submissions from all concerned parties.
LILONGWE-(MaraviPost)-The Women Lawyers Association (WLA) on Thursday morning finished its submission this morning.
The group, the friends of the court has also asked the court that when making its ruling, it should make a few recommendations on law reforms in its final judgement.
Among the recommendations, the WLA says it wants a change in the electoral law to the effect that presidential election disputes, should be resolved before the President – elect is sworn in.
Additionally, on burden of proof, WLA says there should be ammendments in the existing law to make it clear that the burden of proof should be both to petitioners and MEC.
Justice Kapindu is engaging WLA representative, Bernadette Malunga, on the proposals they want the court to include in its judgement.
Kapindu had inquired whether it would be correct for the court to make such proposals in light of separation of powers provisions under the constitution.
The constitutional court continues hearing oral submissions from both parties; UTM, Malawi Congress Party (MCP), President Peter Mutharika and Malawi Electoral Commission (MEC).
MCP witness Suleman exposes MEC May 21 polls fraud
By LordDenning SC
Lord Denning SC, one of Maravi Post contributors exposes how Law Professor Danwood Chirwa contradicts himself on the ongoing Malawi Presidential Election Case.
The contributor presents two pieces in which Chirwa seems to speak differently from what he highlighted early days of the case until Friday, When key Malawi Congress Party (MCP) witness Daud Suleman exposed rigging tactics Malawi Electoral Commission (MEC) favored President Peter Mutharika as the winner for May 21 polls.
Here are two pieces the Law professor has been found into:
After MCP Suleman exposed MEC
____________________________ “After a long time, I got to listen to a small fraction of the elections case this afternoon. It’s clear The case has made a lot of progress.
A significant amount of evidence has been led, and now the technical aspects of the evidence are been dealt with.
That the courts have managed to unlock bottlenecks to getting all the relevant evidence on record is highly commendable.
Elections cases are won and lost by the degree to which the courts open their eyes to all the relevant evidence.
This case is unlike any other that has been conducted and argued on the continent. While I do not like the fact that it’s taken too long, the careful manner in which the evidence has been led and tested bodes well for the final outcome.
So let’s see what the experts say. Their evidence might be the tipping point in the case. If the petitioners expert can show that the IT system by which the final outcome was decided was manipulable or manipulated, the commission will have a lot to explain and justify. After all, it bears the primary responsibility to deliver free and fair elections.
Looking further forward I wonder whether the decision not to depose the Chair of the Commission was a wise one.
Only she can tell the court how the commission reached the final outcome and resolved issues around erasures, monitors not signing results sheets, the use of duplicates etc.”
___________________________ SOMEWHERE ON OR AROUND 22ND JUNE THE ESTEEMED PROFESSOR OPINED AND POSTED WHAT I CALLED A MISGUIDED OPINION
He alleged that the Petitioners had no case whatsoever by stating that their evidence is not only weak but also founded on mere Facebook hearsay.
I challenged his opinion. Before long, he was proven wrong by the Court which sustained the petitions and endorsed that there was a case to be heard.
The revered professor went into hibernation on the matter only to re-emerge today with the above opinion.
Essentially, he has now discarded his earlier opinion and allowed reality to sink in through his mental profile.
But wait a minute, soon after remembering his earlier post, he has either deleted or hidden the today’s post as many have testified that they can’t see it.
Welcome professor to the reality of the matter. You can sit down and we will serve you cold bottles to make you chill.
Stay happy.
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