It was a sweaty cross-examination session for Malawi Electoral Commission (MEC) chief elections officer Sam Alfandika yesterday in the ongoing presidential elections nullification petition hearing.
During cross-examination of Alfandika as the first witness for MEC, which is the second respondent in the case being heard by a five-judge panel of the High Court of Malawi sitting as the Constitutional Court in Lilongwe, lawyer Bright Theu representing first petitioner and UTM Party president Saulos Chilima noted that the witness was sweating profusely.
The lawyer digressed from his question sheet and asked the witness if he needed time off to cool down.
Said Theu: “Mr. Alfandika, I want to be fair with you. I see that you are sweating. Are you feeling hot?”
In response, Alfandika downplayed the concerns, saying he would wait for the formal break as scheduled by the court.
He said: “My lady, my lords, I don’t have a handkerchief… We can carry on until the break time.”
But Judge Mike Tembo, a member of the five-judge panel that also includes Healey Potani, Dingiswayo Madise, Ivy Kamanga and Redson Kapindu, shared Theu’s sentiments and called for a quarter hour break.
He said: “I also saw you sweating and I was concerned as well. Are you sure you are okay? I think we should go for a brief break so that you can freshen up.”
Temperatures in Lilongwe were mild at the time the court was adjourned to allow Alfandika freshen up. Then it rained an hour later.
Before digressing, Theu, who had taken over from another Chilima lawyer Marshal Chilenga, was asking Alfandika on the procedure surrounding election results management system and whether the witness had knowledge of how results were reconciled using forms 66C and the log book.
During a cross-examination that at times got tense but the witness looked calm and composed, especially during the morning session, MEC lead lawyer Tamando Chokotho and Attorney General Kalekeni Kaphale had to intervene to save Alfandika, whom Theu described as MEC’s corporate secretary.
Kaphale and Chokotho objected that their witness was being cross-examined on issues of results that were not reflected in the petition Chilima filed to the court.
Said Chokotho: “I am wondering which part of the petition raises the issue about results… The counsel [Theu] is not relating the matter to the petition.”
But the judges overruled the objection after Chilenga justified his line of questioning, saying it was based on the sections of the Presidential and Parliamentary Elections (PPE) Act clause the witness quoted in his sworn statement.
Chilima’s lawyers also took turns to pin down Alfandika on the result sheets without monitors’ signatures or were altered with correctional fluid Tippex and procedures followed in managing the disputed presidential election results in the May 21 Tripartite Elections by MEC chairperson Jane Ansah.
The witness testified that MEC used unsigned and “typpexed” results sheets in determining the winner.
He also said Ansah, a judge of the Malawi Supreme Court of Appeal, wrote audit firm BDO to approve unsigned result sheets after the company’s official had earlier rejected the same.
Further, Alfandika told the court that alterations of some results were made in the absence of party monitors. This was in sharp contrast to assertions by lawyers representing President Peter Mutharika (first petitioner) and MEC during the hearing that monitors were involved at all levels.
Today, lawyers Modecai Msisha, who is leading the legal team for second petitioner and Malawi Congress Party (MCP) president Lazarus Chakwera, will take over the cross-examination of Alfandika. Chilima and Chakwera are seeking nullification of the presidential election results on the basis that there were irregularities, especially the results management system, that they believed compromised the outcome.