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(4) Pursuant to an order of the High Court under subsection 3 (b) declaring that the member of the National Assembly or the President, as the case may be, was not duly elected, a fresh election for the seat of the member of the National Assembly or to the office of President, as the case may be, shall be held in accordance with this Act. (5) A declaration by the High Court under subsection (3) (b) shall not invalidate anything done by the President before that declaration.” 18. By an Order dated the 4th of June, 2019, Hon. Justice Mkandawire, observed that the two matters were similar; that they related to a common question of law; that they arose out of the same transaction and that there was no good and sufficient reason for the two cases to continue separately. He therefore made an Order in terms of Order 6 rule 9 of the Courts (High Court) (Civil Procedure) Rules, 2017 (CPR, 2017) that the two matters be consolidated. Pursuant to the terms of the said Order 6 rule 9 of the CPR, 2017, the effect of the consolidation Order herein was that the two claims were merged into one proceeding. This is in sharp contrast with a consolidation Order made under Order 6 rule 11 of the CPR, 2017 which entails that two separate proceedings remain separate but are heard together. 8 The two petitions are hence dealt with jointly rather than severally in the present case. This disposes of the issue that lingered among the parties in their written submissions as well as during the hearing of oral submissions on the effect of Justice Mkandawire’s order of consolidation. 19. Further to making an order of consolidation, Honourable Justice Mkandawire was also satisfied that the two matters, as consolidated, were constitutional in nature and that they therefore required the attention of the Honourable the Chief Justice for purposes of certification in terms of section 9(3) of the Courts Act (Cap 3:02) of the Laws of Malawi. 20. The learned Judge proceeded to complete Form 20 under the CPR, 2017 wherein he detailed the constitutional issues that, in his view, the said proceedings implicated. He captured the issues as follows: 8 Under Order 6 Rule 11 of the CPR, 2017, the Court may, on its own motion or on an application by a party, order that several proceedings be heard together where – (a) the same question is involved in each proceedings; (b) the decision in one proceeding will affect the other; or (c) there is no good and sufficient reason for the proceedings to be heard separately. 10

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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)

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