BY PROF DANWOOD M CHIRWA
Continued: on the first two days attorney general Kalekeni Kaphale concentrated on the process of elections and the constitution of the electoral commission. Regarding the first, he wanted to get Chilima to explain his understanding of what the presidential electoral process involves and what roles various stakeholders play in it. His aim was to get the court hear that the essential core of the electoral process was the polling centre which is the source of the results and where all parties have monitors who sign on to the results. He also wanted to highlight the significance of political parties and their monitors to the credibility of elections.
From his questioning he tried to establish two fundamental facts. One that none of the parties involved in the petition did the nation and the electoral process any good: they failed to maintain their own tally centers and to collate evidence from polling stations that could help to either confirm or disconfirm the overall electoral result. He also established that if one challenges the presidential electoral result, the challenge must be based on the testimony of the people on the ground – the monitors. Effectively he was putting a distance between Chilima and the facts. These were huge scores for KK’s case.
On both points he would also have pleased political scientists who have repeatedly pointed out the weak structures of Malawian political parties and that an electoral process reflects the state of governance in a given country. If political parties cannot effectively monitor an election or their structures are prone to corruption we should not expect the electoral body to perform any better. The electoral commission relies on a huge complement of temporary staff it cannot fully control. If a nation is broken forget any possibility of a credible election. This bit excites the academics but KK’s cross was not entirely about proving this all the way for it would be an own goal.
This is why for the last three days he’s assiduously sought to go through the entire batch of results sheets that UTM challenges to test the testimony of Chilima.
There was a skirmish about how quickly he had to do this. The petitioners thought he was wasting the court’s time and that he could easily have gone through the whole set of result sheets and ask his four specific questions at once. KK stood his ground and managed to make minor concessions to quicken the process.
This has proven to be a huge score. He had already established that Chilima was challenging not the registration process, not the campaign process, not the voting process, not the counting but only the results sheets of 0.5 centers. The case could as well stop here and proceed to argument about whether this is enough to overturn the presidential election. But he’s not stopped here.
He has gone through each of the contested polling results. There are a few which were presented on duplicate results sheets, and others which were altered with or without tippex.
Now the petitions seem to have alleged without more that the use of duplicate copies, tippex or alterations impinges on the credibility of the electoral result. KK has managed to triangulate the problematic results sheets from the problematic polling centers and won huge concessions from Chilima that (a) the alterations were necessary to correct errors, (b) that the duplicate sheets were approved and signed by monitors from the relevant parties (c) that UTM monitors have not challenged the authenticity of those results sheets (d) that Chilima did not bother to speak with his monitors or his lawyers to collect sworn testimonies from the monitors challenging the authenticity of those results (e) that UTM does not have alternative results sheets complied from its own tally Centre. During submissions we should expect argument about what constitutes a valid results sheet at a polling Centre.
What’s been most remarkable is the audacity KK has shown to painstakingly compel Chilima to confront his own documents he’s relying on. Either KK is so sure of the evidence in his possession or he is too careless. Normally a lawyer does not ask questions on cross to which they don’t know the answer. So far his audacity has not incurred adverse results for his case.
The other positive consequence for his methodical approach to confront the contested forms directly is that he has been asking the same questions for each form over and over. This appears to be unnecessary to the lay person and irritating to the petitioners but the strategy has significant psychological benefits. Judges are human. In a case like this, which is likely to take long, they can forget some parts of the evidence and remember only some parts. This repetitive questioning of Chilima on the specific result forms he’s contesting and in respect of which KK has been getting the responses he wants will remain in the minds of the judges.
We are now not just talking about 0.5 centers whose results are being challenged. KK has gotten Chilima to concede that most of these were necessary alterations, that the duplicates had results which were legitimate and endorsed by party monitors and that no alternative results have been produced by the first and second petitioners. If there are any remaining dubious or questionable results sheets their number must be even more insignificant.
On the second issue, KK wanted to establish whether Chilima knew that the electoral commission was inclusive and had party representatives. He hasn’t taken this much further in the last three days. I guess what he wanted to achieve here was to establish that none of the electoral commissioners had disowned the results or questioned them.
One of the objectives of a cross examiner is to build their case using the opponent’s witnesses. So far KK has done this in the best possible way.
He’s going to do the same with Chakwera. If the two gentlemen fail to build the foundation, the petitioners will have to do the hard job of building their case from the individual monitors who have sworn affidavits. What’s perhaps of concern is that it appears that both parties haven’t obtained enough affidavits from their respective monitors. The electoral commission went on an affidavit collection campaign like a katemera campaign. This might turn out to be a critical moment in the case.
It could be that the petitioners are banking their case on MEC’s own data.
There’s is so much that remains to come in the case … it’s just early days. Keep listening.
To be continued.