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(a) Whether the [2nd] Respondent breached its duty under Section 76 of the Constitution of the Republic of Malawi; (b) Whether the [2nd] Respondent breached its duty under Section 77 of the Constitution of the Republic of Malawi; and, (c) Whether the [2nd] Respondent infringed on the Petitioners’ and the citizen’s political rights under Section 40 of the Constitution of the Republic of Malawi. 21. By an instrument under Form 16 of the CPR, 2017, made under his hand and duly sealed by the Court, the Honourable the Chief Justice, on the 5th of June, 2019 duly certified the consolidated matter as a constitutional one and the same was assigned as High Court of Malawi Constitutional Reference No. 1 of 2019. Pursuant to that Order, the five Judges sitting herein were empanelled to hear and determine the constitutional questions, and generally to dispose of the matter in its entirety as required under Section 9(2) of the Courts Act. 22. The three constitutional questions above are therefore central in the determination of the present matter. 23. In addition to determining the constitutional questions, the Court is also called upon to determine and dispose of all other issues raised in the petitions. PART TWO ISSUES IN THE PETITIONS FOR DETERMINATION 22.1 Whether the Court should deal only with issues that were specifically and explicitly 24. The Petitions herein raise the following issues: pleaded in the petitions; 22.2 Whether the Respondents were bound to specifically file responses to the petitions in addition to filing sworn statements in response to the petitions; 22.3 What is the standard of proof in the determination of electoral petitions filed under Section 100 of the PPEA? 11

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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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