As Human Rights Defenders Coalition (HRDC) braces to resume nationwide demonstrations this week, the Attorney General (AG)’s office has insisted that the protests are premature. However, but legal experts have said the rights body is free to protest.

In a telephone interview yesterday one of the lawyers for the AG’s office Neverson Chisiza faulted HRDC for planning to hold fresh demonstrations before the two sides submitted their resolutions to the Malawi Supreme Court of Appeal.

HRDC has been holding demonstrations to force Malawi Electoral Commission chairperson Jane Ansah to resign for allegedly presiding over flawed May 21 presidential elections, but a 14-day moratorium issued on August 27 by Justice Lovemore Chikopa of the Malawi Supreme Court of Appeal suspended the protests pending discussions on ensuring violence-free protests.

Chisiza said yesterday the 14 days expired while Chikopa was outside the country; hence, HRDC should have waited until they reported back to the court for a consent order.

He said: “Our understanding is that the 14 days expired while the judge presiding over the case was outside the country. As such, we expected that we should first submit the points that we agreed to the court and probably get a consent order.

“We understood that the spirit of the order was that we should have proper safeguards before holding any demonstrations. But our colleagues rushed to announce the dates for demonstrations even before we reported back to the court. There was miscommunication, the judge only arrives today and this was communicated even to HRDC lawyers [yesterday].”

However, last week AG Kalekeni Kaphale was quoted as having said the judge had returned to office on Tuesday last week.

However, some lawyers have said HRDC is free to hold public demonstrations even before the resolutions are submitted to the court.

Lawyers Alfred Majamanda and John Gift Mwakhwawa said HRDC was at liberty to organise what it calls Jane Ansah Must Fall demonstrations after the expiry of the 14-day moratorium.

Majamanda said if the court did not order that the report should be submitted before the resumption of demonstrations, HRDC was not treading on a wrong path.

He said: “It all depends on what the order said. If it specifically set the submission of the resolutions of the meeting between the AG and HRDC as a condition precedent, then demonstrations cannot be held. But if it did not put the resolutions as a pre-condition for the resumption of demonstrations, then there is nothing wrong in what HRDC is doing.”

The order in part reads: “During the said time [14 days], the parties hereto shall hold negotiations to determine a manner in which the ‘Respondents’ [HRDC] exercise of their rights in Section 38 of the Constitution can be had without undue incidents of violence and crime…”

Majamanda’s view was echoed by Mwakhwawa, who said the order was for the two parties to discuss means of holding peaceful demonstrations.

“As I understand it, there are no more leagl impediments for HRDC to organise demonstrations. After the moratorium expired, there should no longer be any impediment to stop them from going ahead. Even the argument that some issues were not agreed upon should hold no water because the court do not have powers to force people to agree on any matter.”

When contacted yesterday, HRDC lawyer Khwima Mchizi said he could not comment on the dates of arrival of the presiding judge.

He said: “In my view, the order was very clear that after 14 days HRDC was free to organise demonstrations.”

Meanwhile, HRDC chairperson Timothy Mtambo said in a separate interview his organisation will go ahead with the planned demonstrations from Wednesday to Friday this week.

“What we know is that the 14 days expired and after that we are free to organise demonstrations by making use of the points that we agreed with the AG’s office.

According to Mtambo, HRDC has submitted letters informing all city councils of the demonstrations and that some district councils will receive the letters this week.

The AG’s office and HRDC lawyers held a meeting last week in Lilongwe where they discussed modalities of how to avoid violence during demonstrations. Before last week, the meeting had to be postponed several times due to security concerns.

The Malawi Supreme Court of Appeal made the order following an application by the AG’s office which cited violence and looting during some of the HRDC’s protests aimed at forcing Ansah to stand down.

HRDC and opposition political parties accuse Ansah, who is also a Justice of the Malawi Supreme Court of Appeal, of presiding over an allegedly flawed electoral process

President Peter Mutharika has described the late Robert Mugabe as a man who stood for independence of Africa; politically and economically.

Mutharika said this on Saturday in Lilongwe when he was arriving from Harare where he paid his last respect to the former Zimbabwe’s president who died last week Friday.

“I think he stood for Africa to be economic sufficient and self-sustaining and not to depend on assistance from outside. I think that’s what he tried to do; he faced all difficulties but I think he stood for the right thing to do for Africa. Mutharika said the continent should strive for Mugabe’s ethos he wanted for Africa to be together.

“We are doing that; in trade, education and sustainable development. That’s what he left,” he said.

President Mutharika said the funeral ceremony was evidence that Mugabe was the great son of Africa who stood for the continent.

“The ceremony was so touching. I was so glad to see Kenneth Kaunda [former Zambia’s President] was there.He is the only one left standing of the great African leaders emancipating the African continent; he is about 95. It was very satisfying,” said Mutharika.

The complex remembrance process for the longtime Zimbabwean president continued Saturday with a state funeral.

Mugabe, who was ousted in a 2017 military coup, led Zimbabwe for 37 years and died at a Singapore hospital.

Senior Chief Kachindamoto of Dedza District has fired 16 chiefs under her jurisdiction for treating early marriages with kid’s gloves.

In an interview on Wednesday,  Kachindamoto said some chiefs in the area are allowing young girls to enter early marriages instead of remaining in school; a development which is against bylaws the area put in place.

Kachindamoto has further called upon lawmakers to consider reviewing marriage age for girls from 18 to 21.

According to the chief, through Go Back to School Initiative which was established in the community, a number of girls have returned to school. She also said  she managed to put to sleep other cultural practices which are dangerous to girls.

Meanwhile, District Coordinator for Malawi Girl Guide Association in Dedza, Mr. James Chisale,  has said the association has trained some girls in the community to work as role models in a bid to impress upon young girls to remain in school.

In recent years,  Senior Chief Kachindamoto has gained international recognisation for being a champion of anti early marriages for girls.

The historic elections petition case at the Constitutional Court in Lilongwe took a dramatic turn yesterday with the immediate past vice-president Saulos Chilima withdrawing all his 34 remaining witnesses.

The decision, coming after only four out of 38 witnesses have been paraded for Chilima, who is the first petitioner in the case, has attracted different views, with one legal pundit Justin Dzonzi describing it as a double-edged sword which may have advantages or disadvantages.

But one of lawyers representing Chilima, Chikosa Silungwe, who made the announcement about the withdrawal of the witnesses, said in an interview later that their case was premised on two pillars; irregularities and fraud.

He said having assessed their case, they were convinced that they have proved that correction fluid Tippex was used, fake documents and duplicates were used and presiding officers, in some instances, did not sign result sheets and log books, which was contrary to the law.

“It was the wish of the court to have an expedited trial, and we did not see why we should continue parading witnesses who will come to court and repeat same things other witnesses have said.

“It will be up to the second respondent, [Malawi Electoral Commission-MEC], to show that they managed the elections according to the law,” Silungwe said, adding there is also Malawi Congress Party (MCP) presidential hopeful Lazarus Chakwera, the second petitioner, to come to court and tell his story.

Tamando Chokotho, hired by MEC as lead lawyer, dismissed demands by lawyers for the first petitioner that it would be up to the electoral body to prove that it conducted the elections according to the law, arguing the burden of proof lies in them.

He said: “For us, we will show that they did not manage to prove allegations they raised. From the witnesses we cross-examined, no witness proved allegations of bribery, intimidation, [among others].

“From our cross-examination, and for those that have followed the case, they would agree with us we managed to discredit their evidence. Let’s see what happens, our position is we don’t comment on ongoing court issues in the media, but this was to answer their claim that they have proved their case.”

But Dzonzi in an interview said there are many reasons a petitioner may withdraw witnesses, including case assessment that the value of the expected testimony was going to be minimal.

He said: “As lawyers, they may have a strategy, and if they believe the story told so far, and evidence tendered, is enough to prove their case, they may decide so and hope for the best.

“They may also realise that the respondents were taking time with witnesses, and as they wanted an expedited hearing, they may decide to sacrifice part of their evidence for quick results.

“Or they may have realised that based on evidence available, the witnesses may face cross-examination that may damage their case. So as I said, there are advantages and disadvantages in every decision we make.”   

The withdrawal of the witnesses compelled lawyers representing President Peter Mutharika, the first respondent, and MEC to demand costs from Chilima, arguing they invested in research and prepared for the case based on sworn statements the withdrawn witnesses filed.

Parties involved, Frank Mbeta for Mutharika and Chokotho for MEC, on one side, and Silungwe on the other, submitted to the court on why their clients should be paid costs or why they should not be ordered to pay costs.

Chokotho, during the court session that lasted a few minutes, said the respondents spent money travelling across all regions, conducting interviews with the withdrawn witnesses and prepared their cross-examination based on their sworn statements.

He further said the issue of the expedited trial was on both petitioners, arguing lawyers for the first petitioner would have considered [much earlier] that the number of witnesses [they decided to have] would delay the case.

“Counsel for first respondent are not disputing that the respondents have spent, and further considering that the second petitioner [MEC] is a State entity, taxpayers may be made to foot [this bill], it is not right that [MEC] should bear the costs on this,” Chokotho argued.

But Silungwe, in court, argued that since the withdrawal of the witness was made in the interest of saving time, which is also backed by Civil Procedures, costs be in the cause, meaning the issue of costs be decided at a later stage, be it along the way or at end of the case. 

But Mbeta argued that since the sworn statements are being withdrawn, everything ended there and it was only appropriate at that stage for the court to order that the first petitioner be made to foot the costs.

“Everything ends now, and it is not proper that costs be in the cause. These statements will not be there when this case ends. We had to travel all over the country to rebut allegations those statements withdrawn made,” he said.

Chair of the five-judge panel, Healey Potani, before he adjourned the case to Tuesday next week, announced the court would make its ruling on the issue of costs at a later stage.

The court was ready to start hearing the second petitioner’s testimony, Chakwera, but the parties, with endorsement of the court, collectively agreed that the case be adjourned to Tuesday to give them ample time to prepare.

As the case was set to begin yesterday morning, Silungwe said they were ready to proceed, but on further review of the sworn statements of witnesses, the first petitioner had taken a position not to call them.

This meant closure of Chilima’s case, having paraded only four witnesses, of whom his UTM Party deputy director of elections Bright Kawaga was the last witness to testify on Wednesday.

Silungwe made the formal announcement of the withdrawal in the open court after the issue was already discussed in chamber.

Potani said the sworn statements of the withdrawn witnesses would not be used in court and were no longer part of the court record.

The petitioners contend that Mutharika “won a fraudulent May 21 2019 Presidential Election” fraught with irregularities, including alleged tampering with election results sheets with Tippex and want the court to nullify the results and order a re-run.