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malfunctioning biometric voter registration machines, non-functioning solar panels partly due to cloudy weather because of the season and in some cases due to inherent defects ofthe solar panels, unavailability offuel for generators and in some cases unavailability or late arrival of officials of the 2nd Respondent or of the National Registration Bureau. Some of these problems particularly those to do with malfunctioning machines, non - functioning solar panels and lack of fuel for generators forced the 2nd Respondent's officials in some centres to turn people away because no registration was taking place, or in some cases people left on their own upon seeing that no registration was taking place. Civic Education 9. THA T the other major and common problem was lack of or inadequate civic voter sensitization about the registration. This led to a low turnout because people were not aware of the need to register to vote as most people thought that National Identity’ Registration which they did previously with the National Registration Bureau qualified them to vote without having to specifically register again to vote. The duty’ to promote awareness among citizens ofMalawi to register to vote is with the 2nd Respondent under Section 17 of the Parliamentary’ and Presidential Elections Act. Concurrent Registrations 10. THAT furthermore whether by design or coincidence, there was also the problem of other registrations taking place simultaneously with voter registration. These were registrations for mosquito nets and registrations for fertilizers which had the potential of confusing people and dividing their attention. 13

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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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