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39. Section 86(4) of the PPEA provides that voters are to cast their votes in a manner determined by the Commission. However, it is significant to note that the PPEA specifically defines what votes are to be classified as null and void votes. According to Section 88 of the PPEA: “(1) A vote cast is null and void if— (a) the ballot paper has been torn into two or more parts; or (b) has been classified as such pursuant to section 83 (2) (c). (2) A null and void vote shall not be regarded as valid and shall not be counted in determining the results of the elections.” 40. For clarity, the said section 83 (2)(c) provides that: “Where voting has been adjourned to another day under subsection (1) the votes cast on the original day shall be null and void and shall be classified as such in the records of that polling station prepared under section 93.” 41. The statutory definition of the “null and void” vote is to be contrasted with the definition of the same in the Tripartite Elections Polling Station Procedures Manual (hereafter referred to as the Polling Manual) which provides, under Part 17.1, that: “17.1 Null and void ballot papers [s.88 PPE and s.72 LGE] The Presiding Officer or Assistant Presiding Officer shall reject any ballot paper that: a) Does not have the Polling Station Officer’s initials on the back of it AND is not otherwise satisfied that the ballot paper is genuine; b) Has any writing or mark by which the voter can be identified; c) The voter has voted for more than one candidate; d) Has not been marked for any candidate; e) Has any name or signature that will identify the voter.” 42. The language used in the polling manual is rather hazy. It speaks of both “rejected ballots” and null and void ballot papers. The language of “rejected ballots” is used both in the text of Part 17.1 21

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Chilima v. Mutharika (lower court decision)

Judgment

Question Presented: Whether the Electoral Commission breach its duty under section 76, 77, and 40 of the Constitution of Malawi. These duties include ensuring the absence of electoral irregularities, illegalities, and failed provide proper oversight and verification.

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 court consolidated two complaints and referred the case to the Chief Justice. In a previous decision entitled Chakuamba, the court determined that a majority requirement was satisfied by a first-past-the-post system.

Summary: The court determined that the precedent from the Chakuamba case failed to rely on facts or precedent. Accordingly, the 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.

Conclusion: 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.

Legal Issue(s)

Disputing Results
Electoral Integrity
EMB Operation

Applicable Law(s): Malawi Const. 41, 43, 67, 80.

Region: Africa

Country: Malawi

Language of Decision

English

Court: Supreme Court

Election Type: Presidential

Date of decision: Feb 3, 2020

Geolocation

Latitude: -13.993019080150052

Longitude: 33.750713444775464

: Geolocation

Primary Documents

Chilima v. Mutharika.pdf
English
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Election Judgments - IFES

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Chilima v. Mutharika (lower court decision)

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