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54. In addition to the provisions of section 90 of the Act, Form VI prescribes that the following steps must be followed at the close of the poll. It requires that the recording secretary must record (a) the time of closing (the time at which the last voter left); (b) the total number ballot papers received (as derived from Part A* 2 of the Form). The Form then mandates the polling station officers to (c) deduct the number of unused ballot papers and indicate the sub-total, (d) to then deduct the number of spoilt ballot papers if any; and then (e) to count the total number of votes in the ballot box (this count here is marked as D*1 on Form VI). The Form then requires the signatures of the presiding officer, the recording secretary and the polling staff members. 55. Part D of Form VI is in the following form: PRESIDENTIAL ELECTION ONLY CLOSING OF THE POLL PART D THIS PART IS TO BE COMPLETED AT THE CLOSE OF POLLING Time of closing .... p.m. (time which last voter left) Total number of National Assembly Election ............................................. Ballot Papers received: (from Part A* 2) DEDUCT: Number of unused ballot papers: ............................................ Sub-Total: ....................................................................... DEDUCT: Number of SPOILT ballot papers if any: ....................................... Total number of votes in ballot box to be counted (D*1): Presiding Officer: ............................................................................... (Signature) Recording Secretary: ............................................................................. (Signature) Polling Staff Members: ............................................................................. (Signature) 56. Once this is done, under Part E of Form VI, the polling officers must then keep in mind that the total number of ballot papers to be counted (must be those noted from Part D*1). The presiding officer must then proceed to count the per candidate votes following the procedure prescribed under section 92 of the Act. Section 92 of the Act further provides that: 26

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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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