The historic elections petition case at the Constitutional Court in Lilongwe took a dramatic turn yesterday with the immediate past vice-president Saulos Chilima withdrawing all his 34 remaining witnesses.
The decision, coming after only four out of 38 witnesses have been paraded for Chilima, who is the first petitioner in the case, has attracted different views, with one legal pundit Justin Dzonzi describing it as a double-edged sword which may have advantages or disadvantages.
But one of lawyers representing Chilima, Chikosa Silungwe, who made the announcement about the withdrawal of the witnesses, said in an interview later that their case was premised on two pillars; irregularities and fraud.
He said having assessed their case, they were convinced that they have proved that correction fluid Tippex was used, fake documents and duplicates were used and presiding officers, in some instances, did not sign result sheets and log books, which was contrary to the law.
“It was the wish of the court to have an expedited trial, and we did not see why we should continue parading witnesses who will come to court and repeat same things other witnesses have said.
“It will be up to the second respondent, [Malawi Electoral Commission-MEC], to show that they managed the elections according to the law,” Silungwe said, adding there is also Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera, the second petitioner, to come to court and tell his story.
Tamando Chokotho, hired by MEC as lead lawyer, dismissed demands by lawyers for the first petitioner that it would be up to the electoral body to prove that it conducted the elections according to the law, arguing the burden of proof lies in them.
He said: “For us, we will show that they did not manage to prove allegations they raised. From the witnesses we cross-examined, no witness proved allegations of bribery, intimidation, [among others].
“From our cross-examination, and for those that have followed the case, they would agree with us we managed to discredit their evidence. Let’s see what happens, our position is we don’t comment on ongoing court issues in the media, but this was to answer their claim that they have proved their case.”
But Dzonzi in an interview said there are many reasons a petitioner may withdraw witnesses, including case assessment that the value of the expected testimony was going to be minimal.
He said: “As lawyers, they may have a strategy, and if they believe the story told so far, and evidence tendered, is enough to prove their case, they may decide so and hope for the best.
“They may also realise that the respondents were taking time with witnesses, and as they wanted an expedited hearing, they may decide to sacrifice part of their evidence for quick results.
“Or they may have realised that based on evidence available, the witnesses may face cross-examination that may damage their case. So as I said, there are advantages and disadvantages in every decision we make.”
The withdrawal of the witnesses compelled lawyers representing President Peter Mutharika, the first respondent, and MEC to demand costs from Chilima, arguing they invested in research and prepared for the case based on sworn statements the withdrawn witnesses filed.
Parties involved, Frank Mbeta for Mutharika and Chokotho for MEC, on one side, and Silungwe on the other, submitted to the court on why their clients should be paid costs or why they should not be ordered to pay costs.
Chokotho, during the court session that lasted a few minutes, said the respondents spent money travelling across all regions, conducting interviews with the withdrawn witnesses and prepared their cross-examination based on their sworn statements.
He further said the issue of the expedited trial was on both petitioners, arguing lawyers for the first petitioner would have considered [much earlier] that the number of witnesses [they decided to have] would delay the case.
“Counsel for first respondent are not disputing that the respondents have spent, and further considering that the second petitioner [MEC] is a State entity, taxpayers may be made to foot [this bill], it is not right that [MEC] should bear the costs on this,” Chokotho argued.
But Silungwe, in court, argued that since the withdrawal of the witness was made in the interest of saving time, which is also backed by Civil Procedures, costs be in the cause, meaning the issue of costs be decided at a later stage, be it along the way or at end of the case.
But Mbeta argued that since the sworn statements are being withdrawn, everything ended there and it was only appropriate at that stage for the court to order that the first petitioner be made to foot the costs.
“Everything ends now, and it is not proper that costs be in the cause. These statements will not be there when this case ends. We had to travel all over the country to rebut allegations those statements withdrawn made,” he said.
Chair of the five-judge panel, Healey Potani, before he adjourned the case to Tuesday next week, announced the court would make its ruling on the issue of costs at a later stage.
The court was ready to start hearing the second petitioner’s testimony, Chakwera, but the parties, with endorsement of the court, collectively agreed that the case be adjourned to Tuesday to give them ample time to prepare.
As the case was set to begin yesterday morning, Silungwe said they were ready to proceed, but on further review of the sworn statements of witnesses, the first petitioner had taken a position not to call them.
This meant closure of Chilima’s case, having paraded only four witnesses, of whom his UTM Party deputy director of elections Bright Kawaga was the last witness to testify on Wednesday.
Silungwe made the formal announcement of the withdrawal in the open court after the issue was already discussed in chamber.
Potani said the sworn statements of the withdrawn witnesses would not be used in court and were no longer part of the court record.
The petitioners contend that Mutharika “won a fraudulent May 21 2019 Presidential Election” fraught with irregularities, including alleged tampering with election results sheets with Tippex and want the court to nullify the results and order a re-run.