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THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT RGISTRY CONSTITUTIONAL REFERENCE NO.1 OF 2019 BETWEEN DR. SAULOS KLAUS CHILIMA……………..................……………....1ST PETITIONER DR. LAZARUS MCCARTHY CHAKWERA…………………………………………..………………..2ND PETITIONER – AND – PROFESSOR ARTHUR PETER MUTHARIKA…....…………...…...1ST RESPONDENT ELECTORAL COMMISSION………………………...…...……….….2ND RESPONDENT MALAWI LAW SOCIETY…………………………………..…...…1ST AMICUS CURIAE WOMEN LAWYERS ASSOCIATION……………………..………2ND AMICUS CURIAE CORAM: HONOURABLE JUSTICE H. POTANI HONOURABLE JUSTICE I. KAMANGA HONOURABLE JUSTICE D. MADISE HONOURABLE JUSTICE M. TEMBO HONOURABLE JUSTICE R. KAPINDU 1

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Chilima v. Mutharika (lower court decision)

Judgment

Question Presented: Whether the Electoral Commission breach its duty under section 76, 77, and 40 of the Constitution of Malawi. These duties include ensuring the absence of electoral irregularities, illegalities, and failed provide proper oversight and verification.

Alleged Acts: During the May 2019 election Presidential candidate Mutharika obtained 38.57% of the vote, Chilima obtained 20.24%, and Chakwera obtained 35.41% of the vote. No single individual one over 50% of the vote. The petitioners allege that the election winner must have ascertained over 50% of the vote.

Procedural history: The court consolidated two complaints and referred the case to the Chief Justice. In a previous decision entitled Chakuamba, the court determined that a majority requirement was satisfied by a first-past-the-post system.

Summary: The court determined that the precedent from the Chakuamba case failed to rely on facts or precedent. Accordingly, the court modified this standard and determined that the majority meant 50% or more of the vote in compliance with the rest of the Malawi constitution. The court further looked to the Black's Law Dictionary definition for majority and determined that the first-past-the-post system was inconsistent with the term majority as set forth.

Conclusion: The President of Malawi was not duly elected and the new election must be held in accordance with the PPEA. The May 2019 election is declared nullified. In order to ascertain the presidency, the candidate must have more than 50% of the vote, rather than the previous plurality requirement.

Legal Issue(s)

Disputing Results
Electoral Integrity
EMB Operation

Applicable Law(s): Malawi Const. 41, 43, 67, 80.

Region: Africa

Country: Malawi

Language of Decision

English

Court: Supreme Court

Election Type: Presidential

Date of decision: Feb 3, 2020

Geolocation

Latitude: -13.993019080150052

Longitude: 33.750713444775464

: Geolocation

Primary Documents

Chilima v. Mutharika.pdf
english
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