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on them without plausible justification and in disregard of acceptable set standards and international accounting standards; (c) it accepted the use of results recorded on fake tally sheets without paying any particular regard to such anomalies as signatures of election monitors, barcodes and centre numbers. (d) it altered, varied and transmitted results as submitted in clear disregard of the altered figures recorded on the results tally sheets; (e) it failed to detect alterations and variations in terms of the votes recorded in the system and the corresponding results tally sheets, or that it did not mind the same; (f) it disregarded or transferred missing votes into null and void votes without any verification whatsoever as to which presidential candidate the votes belonged to; (g) it adopted, accepted and used results from a stream as representing the total results for a polling centre; (h) it accepted and used results tally sheets from centres where the total number of votes cast exceeded the total number of registered voters; (i) it accepted and used results tally sheets from centres where the total number of the votes of the candidates was not balancing with the total number of the valid votes cast; (j) it accepted and used results tally sheets from centres where the total sum of used and unused ballot papers was lower than the ballot papers issued; (k) it delayed in transmitting results from particular areas in Salima, Dowa, Mchinji and Lilongwe and uploading the same after alterations. (l) it announced the final Presidential Election results before results from some Polling Centres, particularly from the Central Region, had been uploaded into its system; 13

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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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