Documents Leakage Drive Elections Case into Another Level

The leak of legal documents either by both parties or unknown individual clearly indicates how high profile is elections case currently contested in Constitutional Court.

With documents going viral on social media platforms and one issue being about a financial claim of K75 million payment of Supreme Court appeal costs as agreed under legal terms.

The document is a letter from Chilima’s legal team to Malawi Electoral Commission (MEC), claiming K75 million, party-to-party costs, following dismissal of an appeal by MEC on Thursday in the Malawi Supreme Court of Appeal.

The claim letter, dated August 16 2019, from Nicholls and Brookes, for Chilima, to MEC lawyers reads: “In respect of the ruling in which the Supreme Court dismissed your client’s appeal and ordered costs for the respondent. Note that the party to party costs are in the moderate sum of K75 000 000.00. We demand payment within seven days.”

Then another document is in relation to the ongoing matter in the Constitutional Court in Lilongwe went viral on social media on Friday as one of them being a sworn statement of service not signed yet then by commissioner of oaths for being another lawyer other than the one who prepared and signed for it.

In the leaked sworn statement of service, Bright Theu, one of Chilima’s lawyers, explains how Attorney General Kalekeni Kaphale refused, during a short adjournment on Wednesday, to be served with a supplementary sworn statement of Darlington Ndasauka, one of witnesses in the matter in which two petitioners want nullification of the May 21 2019 Tripartite Elections.

Bright Theu narrates that Kaphale, in the occurrence he said was witnessed by majority of lawyers on both sides and some members in the public gallery, furiously threw the document at him and on the floor and instructed other lawyers representing President Peter Mutharika not to accept service.

Meanwhile, Chilima’s legal team regrets the leak, the team’s spokesperson, lawyer Khumbo Soko, said in an interview on Saturday that the documents in question, in any case, eventually became part of the court record, which automatically becomes public documents.

Soko said as lawyers on one side, they work as a team and they share documents and they may not have an idea at what point were the documents leaked.

“Leakage of communication between counsels is always regrettable. But when you have so many people involved, such things are bound to happen, although not a good thing.

“But there was no any intention to embarrass anyone. As we are saying, if any member of the public was to consult the court record, they were going to discover that on record anyway,” Soko said, adding that the sworn statement of service was commissioned and is part of the court record.

However, MEC threatens to report to Malawi Law Society-MLS lawyers for immediate past vice-president Saulos Chilima for what they termed “unprofessional conduct”.

But lead lawyer for the electoral body, Tamando Chokotho, did not hide his disappointment on Saturday , saying he did not even want to bless such “uncalled for and unprofessional conduct” with his comments.

“[On the letter from Chilima claiming K75 million], I am the recipient, and obviously I did not leak it. And that leaked letter is not even signed. That letter they are notifying us what they think is their cost.

“This is unprofessional conduct. We will find our way to deal with this; we will take up the matter with our professional body, the Malawi Law Society. In other professionals, there is always exchange of documents, but they don’t do this. I will not join that bandwagon to litigate in the media or become sensational over trivia,” Chokotho said.

Lawyer Frank Mbeta, representing Mutharika, said in an interview on Saturday that it is unethical conduct for any lawyer to leak onto social media documents not commissioned or unsigned letters.

“It’s all deliberate; whoever did that had an ill motive. But as professionals, we must realise we have ongoing serious legal issues to concentrate on, and this unprofessional tactic would help no one,” Mbeta said.

MLS honorary secretary Martha Kaukonde said MLS would only come into the matter if approached, but said as a professional body, they expect all members to act professionally as per their code of ethics.

“If it comes, we will take it as a disciplinary issue and we will make reference to our Code of Ethics. It is premature to comment on the conduct of any party involved,” Kaukonde said.

In the sworn statement of service by Theu, now on court record at Chilima’s legal team intends to use it in the ongoing elections case, the lawyer says he approached the AG to serve him, but he vehemently objected service.

Reads the sworn statement: “I reasoned with him to the effect that we will seek permission to use it, and he will have occasion to raise his vehement objection to its use and the Honourable Court would make its ruling on the point in terms of practice.

“The Honourable Attorney General got visibly angry. With a ferocious look at me, he reiterated that he could not accept service, while also fuming. He also indicated that I was wasting his time as he had asked for a short recess to get himself organised.”

Kaphale, according to the statement, said he was not going to allow any of his officers to accept service after Theu had requested so.

The AG could not be reached on his mobile on Saturday for his comments.

The Malawi Supreme Court of Appeal on Thursday dismissed with costs an appeal President Mutharika and MEC had filed to throw out the ongoing presidential election petition case at the High Court in Lilongwe, sitting as a Constitutional Court.

The ruling paved the way for the Constitutional Court to continue hearing the presidential election case from UTM presidential candidate Chilima, first petitioner, and his Malawi Congress Party (MCP) counterpart, Lazarus Chakwera as second petitioner.

MEC and Mutharika wanted the election petition case thrown out for being filed “irregularly” and “illegally”.