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Mr. Munkhondya, Court Interpreter Mrs. … Mrs. Mboga, Court Reporter JUDGMENT POTANI, J INTRODUCTION 1. At outset, I wish to state that this judgement is a product of the collective deliberations and participation of all members of the panel. 2. On the 21st day of May, 2019, the people of Malawi went to the polls in Presidential, Parliamentary and Local Government elections (the tripartite elections) that were held throughout the country. Two of the candidates that contested in the Presidential elections, namely the Right Honourable Dr. Saulos Klaus Chilima and the Honourable Dr. Lazarus McCarthy Chakwera, being the 1st Petitioner and 2nd Petitioner in the present case respectively, have approached this Court seeking nullification of the results of the said presidential elections by the Electoral Commission. The Electoral Commission, which is the 2nd Respondent in the present case, on the evening of the 27th day of May, 2019, declared that His Excellency Professor Arthur Peter Mutharika, the 1st Respondent herein, had been duly elected President of the Republic of Malawi during those elections. The petitioners are aggrieved by the said declaration by the 2nd Respondent based on grounds that will be outlined later in the present judgement. 3. We wish to thank Counsel for both the Petitioners and the Respondents as well as Amicus Curiae for their great industry and dedication in arguing the present matter. Their arguments and submissions have been of much assistance to the Court in arriving at the present decision. 4. At the start of the proceedings, two bodies asked the Court to be admitted as amicus curiae. The first to apply was the Malawi Law Society (MLS) which is a statutory body tasked with, among 3

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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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