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8. There have been blatant cases of irregularity in all the twenty-eight (28) districts of the said Republic. These cases relate to both the Parliamentary and the Presidential Elections. UNDERTAKING AS TO DAMAGES OR COSTS 9. The Petitioner states that he commits to bearing all the costs of the nullification of the Tripartite Elections in the event that the Court determines this Petition in favour of the Respondents. THE PETITIONER PRA YS FOR 10.1 A Declaration that the elections are null and void ab initio 10.2 An Order for costs for the Petitioner. ”. The Petition of Dr. Lazarus McCarthy Chakwera, the second respondent in the instant case, states, as it is: “This humble amended Petition ofDR. LAZARUS MCCARTHY CHAKWERA showeth: A. THE PARTIES 1. THAT the Petitioner is a citizen of the Republic of Malawi and President of the Malawi Congress Party', a political party’ deemed to be duly registered in accordance with the Political Parties Act. 2. THAT the Petitioner was a presidential candidate, for Malawi Congress Party, in the tri-partite General Elections which were held on the 21st May 2019. 3. THA T the Petitioner is entitled to bring the present petition directly to the High Court for a declaration in respect of the undue election or undue 11

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Mutharika v. Chilima

Judgment

Question Presented: Whether the standard that candidate must receive a majority of the votes means the highest percentage of votes or over 50%?

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 lower court determined that the precedent from the Chakuamba case failed to rely on facts or precedent. Accordingly, the lower 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. 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. The appeal encompasses all aspects of the prior case.

Summary: The Supreme Court validated the Constitutional Court's invalidation of the May 2019 election. The court rejected the appeals stating that shift to a majority (plus one) was constitutional. The court criticized the grounds for appeal as fictitious.

Conclusion: Parliament has the power to set a time for new elections, not the Electoral Commission. The court may not extend the prior government.

Legal Issue(s)

Voting Systems (Winner-take-all, proportional, etc.)

Applicable Law(s): Malawi Const. 41, 43, 67, 80.

Region: Africa

Country: Malawi

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: May 8, 2020

Geolocation

Latitude: -13.99301908

Longitude: 33.75071344

: Geolocation

Primary Documents

Prof Arthur Peter Mutharika and Electoral Commission Vs Dr Saulos K Chilima and Dr Lazarus M Chakwera MSCA Constitutional Appeal No 01 of 2020.pdf
English
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Election Judgments - IFES

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Mutharika v. Chilima

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