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16. A key statute in relation to the discharge of the functions, duties and responsibilities of the Commission is the Presidential and Parliamentary Elections Act (PPEA) which makes provision for the conduct of elections for the election of Members of Parliament and the President. Thus the implementation by the 2nd Respondent of the provisions of the PPEA must be viewed through the prism and in the context of these constitutional and statutory provisions. 17. In the present proceedings, the Petitioners filed petitions challenging the declaration by the 2nd Respondent of Professor Arthur Peter Mutharika as the duly elected President of Malawi after the elections of the 21st of May, 2019. The 1st Petitioner filed his petition on the 31st of May, 2019. This matter was filed as Electoral Case No. 16 of 2019 and it was initially assigned to the Honourable Justice Ruth Chinangwa. The 2nd Petitioner filed his petition on the 3rd of June, 2019 as Electoral Case No. 26 of 2019 and came before the Honourable Justice MCC Mkandawire. Both petitions were filed under Section 100 of the PPEA which provides that: “100.— (1) A complaint alleging an undue return or an undue election of a person as a member of the National Assembly or to the office of President by reason of irregularity or any other cause whatsoever shall be presented by way of petition directly to the High Court within seven days, including Saturday, Sunday and a public holiday, of the declaration of the result of the election in the name of the person— (a) claiming to have had a right to be elected at that election; or (b) alleging himself to have been a candidate at such election. (2) In proceedings with respect to a petition under subsection (1), the Commission shall be joined as respondent. (3) If, on the hearing of a petition presented under subsection (1), the High Court makes an order declaring— (a) that the member of the National Assembly or the President, as the case may be, was duly elected, such election shall be and remain valid as if no petition had been presented against his election; or (b) that the member of the National Assembly or the President, as the case may be, was not duly elected, the Registrar of the High Court shall forthwith give notice of that fact to the Commission which shall publish a notice in the Gazette stating the effect of the order of the High Court. 9

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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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