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26.1. The 2nd Respondent's Presiding Officer for Mpatsa Tally Centre in Nsanje District was caught with three ballot boxes stuffed with already marked ballots in favour of the 1st Respondent. The Presiding Officer was arrested by the Malawi Police. 26.2. The 2nd Respondent's Chief Returning Officer for Nsanje Central Constituency, Mr. Fred N Thomas, was on 23rd May 2019 found tampering with Results Sheets, and this was still within the period for transmission of results. 26.3. The 2nd Respondent’s Presiding Officers at some of the polling centers 10 refused to furnish the Petitioner's monitors with copies of the tally sheets contrary to the 2nd Respondent's Polling Station Voting Procedure Manual, and Results Management System Processes outlined by the 2nd Respondent. 26.4. The 2nd Respondent proceeded to announce the contaminated results without taking heed to appreciate the genuineness and the validity of the said results. 26.5. The 2nd Respondent proceeded to announce the said results without conducting a thorough audit and verification of the results and in disregard of the several complaints lodged by the 2nd Petitioner through Malawi Congress Party. 20 27. THAT the 2nd Respondent has committed the following wrongs in the conduct, control and administration of the elections which amounts to a gross and unjustifiable dereliction of its constitutional duty under sec tion 76 of the Constitution ofthe Republic ofMalawi to ensure that the elections are carried out, in accordance with the provisions of the Constitution, the Electoral Commission Act and the Parliamentary and Presidential Elections Act: 20

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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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