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Saturday, 21 December 2019 12:42

AG throws punches into petitioners' cases

Written by  Morton Sibale

Lilongwe, December 21, 2019: Attorney General Kalekeni Kaphale on Friday told the Constitutional Court hearing the presidential election case that the petitioners have failed to bring forward enough evidence to warrant nullification of results.

Kaphale, who is lead lawyer for the Malawi Electoral Commission (MEC) which is the Second Respondent in the case, said since the burden of proof in any case lies on the one who alleges, the petitioners have failed to bring before the court enough evidence to move it to nullify the results.

Kaphale further stated that even if the court was to consider the standard of proof that had been suggested by the petitioners, the evidence of the petitioners has even failed to reach the threshold for establishing a prima facie (accepted as correct until proven otherwise), to justify a switch of the burden from the petitioners to the respondents.

The AG also tore into the evidence of Daudi Suleman who was key witness for the Second Petitioner, Malawi Congress Party's Lazarus Chakwera.

Kaphale said to prove his allegations that the results were not approved in the election Results Management System (RMS), the petitioners should have presented to court the manual tally sheets that their monitors had in possession.

In a direct response to Chakwera's lawyer, Senior Counsel Modecai Msisha who argued in his submission that the commissioners breached the Constitution by delegating employees of the commission to testify in court, Kaphale said the commissioners were within their legal power, citing Section 76 (1) of the Constitution.

"The commissioners could not possibly be at all the 5002 polling stations and the 11 000 plus streams to monitor the results so they had to delegate some of their duties," Kaphale was quoted as saying.

After the hearing, Kaphale told the media that he was impressed and satisfied with their submission and their defence, while reiterating that the petitioners did not have a strong case to warrant nullification.

"The petitioners have come to court looking for the truth but they neglected their own monitors and the results verification system that was readily available to them.

“As such, we feel like they do not have a strong case, that's why we have asked the court to throw away the petitions," Kaphale said.
On his side, lead lawyer for Chakwera, Msisha said that his side had managed to show to the court who is mandated by the Constitution to manage the elections.

"Proper management of the results is not the responsibility of the monitors. It is the [Electoral] Commission, and it’s the commission that had all the data that is needed to authenticate the process," Msisha said.

The Constitutional Court has since finished hearing the case and the five-judge panel will now proceed to prepare its ruling.

UTM candidate Saulos Chilima and Malawi Congress Party candidate Lazarus Chakwera petitioned the court to nullify the election results in which Democratic Progressive Party candidate and incumbent President Arthur Peter Mutharika was declared the winner by the Malawi Electoral Commission.