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25.9. accepting and using results tally sheets from centers where the total number of the votes of the candidates is not balancing with the total number of the valid votes cast. 25.10. accepting and using results tally sheets from centers where the total sum of used and unused ballot papers is lower than the ballot papers issued. 25.11. delaying in transmitting results from particular areas in Salima, Dowa, Mchinji and Lilongwe and uploading the same after alterations. 25.12. Announcing the final Presidential Election results before results from some Polling Centres particularly from the Central Region had been 10 uploaded into 2nd Respondent’s system. 25.13. not observing processes set by law, for example, by allowing delivery of ballot papers and other election materials without security contrary to the requirements of the law, which demands that such material should be delivered under conditions of absolute security' against loss, tampering or interference. 25.14. Failure by the Presiding Officers to prepare a brief summary’ of the final result Record of the polling process and to furnish a copy of the duly signed summary of the final result at each polling station to each political party' representative as provided for in the Parliamentary and Presidential 20 Elections Act. 26. THA Tfurther to the above enumerated irregularities, the conduct of the 2nd Respondent in managing the elections was utterly unjust and unconscionable: 19

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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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