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had not yet been uploaded into its system the 2nd Respondent proceeded to announce the final Presidential results. 27.5. the 2nd Respondent declared the 1st Respondent as duly elected President of the Republic of Malawi with 1,940, 709 votes representing 38.57% of the votes cast while the 2nd Petitioner was declared to have polled 1,781,740 votes representing 35.41 % of the total votes cast. 27.6. The 2nd Respondent failed and neglected to act with due diligence in the control, management and administration of the 21st May 2019 elections and failure to properly respond to the written communication urging it to 10 address the complaints lodged and conduct an audit of the election amounted to biased conduct and gross and unjustifiable dereliction of its constitutional duties under Sections 76 and 77 of the Republic ofMalawi Constitution. 27.7. All in all the 2nd Respondent showed great bias for the 1st Respondent and against the 2nd Petitioner thereby failing in its duty to act impartially as its position requires it to in the administration and management ofan election. 28. THAT the irregularities mentioned herein affect the votes as follows: 28.1. Votes from Duplicate Tally Sheets 28.2. Result Tally Sheets defaced with "Tippex” 28.3. Counterfeit or Fake Tally Sheets 20 28.4. Tally Sheets with alterations 29. THATfrom an analysis of results from 78 constituencies as at the date hereof the irregularities mentioned herein affected in excess of 1,412,105 votes as follows:

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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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