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22.4 Whether, in the determination of electoral petitions under Section 100 of the PPEA the Court applies a quantitative test, a qualitative test, or both; 22.5 What is the effect of the use of the following terms: (a) undue election, (b) undue return, (c) any other cause whatsoever as provided for under section 100 of the PPEA; in the present proceedings? 22.6 Whether, in the presidential elections of the 21st of May, 2019, the count, audit, transmission, tallying, aggregation of results was replete with: (a) intimidation; (b) bribing monitors; (c) presiding officers and other polling staff influencing voters; (d) presiding officers and other staff of the 2nd Respondent tampering with tally sheets to alter the result of the vote at a particular polling station or tally centre; (e) unauthorized persons being found with ballot papers and ballot boxes; (f) arrest of persons at various places for offenses relating to breach of the country’s electoral law; (g) failure to deliver the ballot papers under conditions of absolute security. 22.7 Whether the 21st of May, 2019 presidential elections were generally marred by blatant and a plethora of irregularities in all the 28 districts of the country. 22.8 Whether the 2nd Respondent failed to conduct the electoral process in accordance with the Constitution and electoral laws in that: (a) it used duplicate tally sheets as a primary record of the votes polled instead of original tally sheets without plausible justification and in breach of its own procedures as well as international accounting standards; (b) it accepted the use of tally sheets defaced with a substance known as tippex as a record of the polled votes in place of the original results tally sheets with no tippex 12

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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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