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scheduling conference where a number of directions, including directions for discovery, were given. The parties also proceeded to file sworn statements, in which further issues were introduced. Therefore, the subject matter and the issues for determination by the Court below and which must be before us, are circumscribed by the petitions and the constitutional questions that were identified by the Court below. This has been the practice in constitutional referrals (see: The Attorney General Ex- Parte Abdul Pillane, Constitutional Case No. 6 of 2005 (Unreported) and Lisineti Gremu and Davie Charles Kanyoza, Constitutional Case No 1 of 2012 (unreported). The Petitions and the Referral At this point, and for ease of reference, we proceed to set out, in full, the two petitions and the constitutional questions in the referral. The Petition of Dr. Saulos Klaus Chilima, the first respondent in the matter before us, states, as it is“1. The Petitioner is the immediate past State Vice President of the Republic of Malawi and was the Presidential Candidate of UTM in the Tripartite Elections of 21 May, 2019 (The elections). 2. UTM is a political party registered under the Political Parties (Registration and Regulation) Act (now repealed) on 21 September, 2018. 3. The Respondent is a public institution established under section 75 of the Constitution and section 7 of the Electoral Commission Act. 4. On 27 May, 2019, the Respondent declared the following results of the elections: a) Lazarus McCarthy Chakwera 9 1, 781, 740 votes

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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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