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Court examines the specific contents of Form VI under the Act, the proper legal context within which the said Form is to be understood must be laid out. 46. The legislature, in 1994 under General Notice No. 13 of 1994, promulgated the “Subsidiary Legislation Parliamentary and Presidential Elections (Forms) Regulations”. These are regulations made under section 121 of the PPEA which provides that “The Minister may, on the recommendation of the Commission make regulations for the better carrying out of the provisions of this Act.” According to Regulation 2(1) under those regulations, “The forms set out in the Schedule shall be used for the purposes of the Act, and such particulars as are contained in those forms and not particularly prescribed by the Act are hereby prescribed as particulars required under the Act.” 47. What this means, therefore, is that we need to carefully examine the particulars on the forms and take note whether they make any specific procedural prescriptions which are not contained in the Act. Where we so find, such specific particulars should be taken as formal procedural steps that ought to be followed in the electoral process. Again, the import of Regulation 2 (1), therefore, is that it is imperative that the forms prescribed under the statute should be followed as a matter of law. 48. Form VI has been prescribed as the Form where the record of the entire polling process at the polling station as envisaged under section 93 (1) (a) of the PPEA is to be recorded. 49. Coming back to the issue of the processes to be followed at the opening and closing of the poll, Form VI requires that each polling station must have a recording secretary who must complete Part A of that Form (Form VI) on the opening of the polling station and before polling begins. According to that form, on the opening of the polling station and before polling begins, the recording secretary must record (a) the time of opening the polling station; (b) the polling station number; (c) the total number of registered voters; and (d) the total number of ballot papers received for the election. The form requires the respective signatures of the presiding officer, the recording secretary and the polling station clerks. 50. Part A of Form VI of the PPEA is in the following form: FORM VI 23

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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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