Chilima admits legally Ansah can’t act alone: Malawi election case analysis

At 2.12pm on Thursday August 8 2019 the Constitutional Court once again rebuffed Attorney General Kalekeni Kaphale and his predecessor Charles Mhango’s oral applications to have the much awaited petitions to nullify presidential results in the May 21 Tripartite Elections adjourned again. The country’s immediate past vice-president, Saulos Chilima was seen smiling and winked at his legal team.

It would be shortest smile in Chilima’s great career as a politician and petitioner in presidential results dispute matter. Within an hour after cross-examination had started, Chilima had already agreed with all the legal positions that Kaphale threw at him.

Kaphale made him agree there was no fraud. Votes only validated matter. We had an interesting day 1. Lets hope Day 2 will see Chilima make a  come back.

By 5pm, with two short breaks the UTM leader had agreed with the Electoral Commission lead lawyer save for two occasions he tried to explain.

His legal team, which was seen religiously scribing his answers though they were standard “True, agreed, understanding and expectation”, tried to stop Kaphale from asking the legal provisions and if Chilima understood them.

His lead laywer Marshall Chilenga argued that it was wrong to ask Chilima to interpret the law, which Kaphale rebutted that he needed to see if he understood the law in the context to his petition to the court. The Court gave the AG space to expound his questioning.

Chilima who tried to clever out of simple question if he knew the process of appointing Electoral Commissioners, opened a can of worms, allowing Kaphale to take him to agree that the Commission is comprised of all parties that got 10%, that Jane Ansah the Chairperson everyone accuses of messing elections actually has no powers to act alone but through a majority of a multiparty constituted commission.

Civil Society have used Ansah as a rallying point, legally she seems not to be liable for all the happenings at the Electoral Commission, they might really need to rethink their positions, as Chilima conceded the Commission is legally independent, comprised of all parties who got 10% of national vote and more importantly their appointments involve Parliament, Political Parties and the President.

Did we seek legal advice before we embarked in senseless demonstrations when it would be easy for her to go using Parliament or any other avenue?

Legally, Kaphale was trapping Chilima to disown his own affidavit. Out of the 148 questions he was asked, he agreed to the following items which his legal team has to work hard to counter when they come back:

1. Party monitors are agents of the party- free to complain, refuse to sign and challenge any results. The UTM petition does not include any affidavit or contrary forms from its monitors who were at the polling centres. Chilima agreed there were no forms or affidavits from these people- it should be something they might need to work on urgently, otherwise their whole case is hanging.
2. The complaints mechanisms, did UTM exhaust it? He agreed monitors were rightly placed to argue than someone at tally centre. Their case would learn from MEC strategy, collect affidavits where their monitors don’t have forms to prove malpractice.
3. Finally, on MEC, I am praying in his affidavit he did not dwell on independence of MEC. Too many records of his speeches and now his agreement that legally MEC is independent.

First day of the 2019 elections case went to Kaphale, he laid a strong ground to school the public using Chilima its poster boy of protest how elections are conducted, results decided, rights of parties and more importantly that political party agents hold power to decide the results not only Jane Ansah.

Kaphale 1 Chilenga 0. Lets wait for day two!

My advice, seek an adjournment like Kaphale, get affidavits from monitors in areas you are using as evidence of rigging. It will be a better idea to fight Kaphale and company on the premise of electoral process the first petitioner agreed to 100 percent on the first day of court!

Otherwise, the foundation is shaky and any honest lawyer knows- proving rigging means to prove the process was not free and fair, not one component which your own monitors did not query!

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