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22.10 Whether the 2nd Respondent committed the following wrongs in the conduct, control and administration of the elections which amounted to a gross and unjustifiable dereliction of its constitutional duty under section 76 of the Constitution to ensure that the elections were carried out in accordance with the provisions of the Constitution, the ECA and the PPEA: (a) Being generally negligent in its control and administration of the elections by failing to electronically collate, tally and transmit results accurately as required by law; failing to ensure that the relay of results from the polling stations was secure, accountable, accurate and verifiable; and failing to ensure that the result sheets were originals signed by the candidates' agents or monitors and if not that they indicated the reason for refusal to sign. (b) There has been massive tampering and irregularities in connection with the recording, counting, transmission and tabulation of votes during the said election which the 2nd Respondent was aware or ought to have been aware of if it had exercised reasonable care and professional diligence commensurate with its constitutional and statutory powers and duties. Despite the said existence of the said tampering the 2nd Respondent went ahead to announce the results of the elections, including that the 1st Respondent had been duly re-elected into the position of the President of the Republic of Malawi, without holding any or any sufficient audit to verify the election results. (c) The 2nd Respondent has acted and omitted to act in a manner which grossly and unjustifiably infringes on the 2nd Petitioner's and the citizens' political rights under Section 40 of the Constitution and breaches the 2nd Respondent’s constitutional duties under Sections 76 and 77 of the Constitution; (d) Further instead of responding to the said 2nd Petitioner's complaints and before addressing the problems highlighted by the 2nd Petitioner and without waiting for the remaining results from polling centres whose results had not yet been uploaded into its system, the 2nd Respondent proceeded to announce the final Presidential results; 15

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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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Election Judgments - IFES

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Chilima v. Mutharika (lower court decision)

Primary Documents

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