In the on-going high profile elections case, the Malawi Electoral Commission (MEC) suffered yet another defeat following a refusal by the Constitutional Court on the use of original tally sheets during re-examination of its principal witness Sam Alfandika.
Delivering a ruling on behalf of the five panel judges, justice Dingiswayo Madise described as “wholly unfair and tantamount to trial ambush” the decision by MEC lawyers to use the original sheets, which it failed to bring to the court earlier, as demanded by the petitioners.
The judge indicated that despite an obligation made on the need to submit originals to court, the direction fell on deaf ears on counsel for the second respondent.
He observed MEC’s intention to introduce documents at this stage of the trial as an attempt to seal holes in the evidence of its principal witness Alfandika.
However, Madise directed the Commission to bring the original tally sheets to the court before submission of lawyers on Friday, this week.
An objection was first raised by UTM lawyer Marshall Chilenga who said the second respondent never at any point used originals but photocopies and scanned documents hence it was unfair for the court to allow the documents.
Malawi Congress Party lawyer Modecai Msisha shared the sentiments arguing that the originals were never produced during cross-examination.
MEC lawyer Tamando Chokhotho justified the production of the documents including carbon copies which were with party monitors and brought to the court following allegations by the petitioners that the reserve sheets are fake.
Earlier on during cross examination with Msisha, Judge Mike Tembo cautioned Alfandika that the court is not there to play around.
It followed a tendency by the Commission’s witness to skirt around when responding to some of the questions by Lazarus Chakwera's lawyer.
When quizzed on why some pages in the Auditor’s report are missing, he stated that the electoral body did not deliberate on the missing pages, but just focused on the content.
“Mr. Alfandika just answer the question straight we're not here to play, warned judge Kapindu.
According to him, despite complaints raised by opposition parties prior to the announcement of the results, the Commission went ahead to declare the winner because the parties did not provide contrally results.
The witness justified the use of reserved tally sheets in the polls as they contained four security features which included MEC text, logo, invisible image and threads which could not be seen by naked eyes but by using special gadgets.
During re-examination, the electoral body’s boss told the court the alterations which were made to correct the mistakes on results sheets, did not affect candidate’s votes.
Alfandika also backed the corrections made in the absence of party monitors as the paper trail used could trace if any changes were made to disadvantage other candidates.
Earlier on, the witness contradicted his chairperson on the source of correction fluid that it was taken from Teachers Development Centres (TDC)’s in constituency tally centres.
In the video clip brought by Msisha and played in court, Jane Ansah told ZBS that she was not aware of the source of the tippex.
Pressed on how the fluid was also found in constituency tally centres which were not TDC’s, he was forced to withdraw his position.
Before adjournment, Judge Ivy Kamanga expressed concern over the public gallery’s becoming part of the bar of the bench evidenced by the murmurings.
“You do not have that pleasure in this place. Next time there is murmuring, you’ll be told to go out,” cautioned Kamanga.