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5. b) Saulos Klaus Chilima 1, 018, 369 votes c) Arthur Peter Mutharika 1, 940, 709 votes The Respondent proceeded to declare Arthur Peter Mutharika, who contested in the elections as a presidential candidate under the ticket of the Democratic Progressive Party', the winner of the presidential elections. 6. The elections were marred by a plethora of irregularity'. 7. The count, audit, transmission of the results from polling stations to tallying centres, and the tallying of the aggregated vote at the Respondent's main tally centre in Blan tyre, in the Republic of Malawi was replete with (a) Intimidation of election monitors; (b) Bribing of election monitors; (c) Presiding officers and other staff of the Respondent influencing voters on the choice of candidates; (d) Presiding officers and other staff of the Respondent tampering with tally sheets in order to alter the result of the vote at a particular polling station or tally center; (e) Unauthorized persons beingfound with ballot papers and ballot boxes; (f) Arrests of Persons, at various places in the said Republic, for offences relating to breach of the country's electoral law; and (g) Failure to deliver the ballot papers under conditions ofabsolute security’. 10

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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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