DR. SAULOS CHILIMA AND DR.

RAZALOUS CHAKWERA VS
PROFESSOR PETER MUTHALIKA AND MALAWI ELECTORAL
COMMISSION.
Facts of the Matter
On 21st May 2019, Malawi held Presidential, Parliamentary and Local
Government Elections. The first and second petitioners and the second
respondents contested as Presidential candidates for their respective
political parties.
On 27th May 2019 the first respondent declared the second responded to
have been duly elected as President of the Republic of Malawi.
The Petitioners filed petitions challenging the declaration by the 2nd
Respondent of Professor Arthur Peter Mutharika as the duly elected
President of Malawi. The 1st Petitioner filed his petition on the 31st May,
2019. This matter was filed as Electoral Case No. 16 of 2019.
On 31st May 2019 the first petitioner approached the courts seeking
nullification of the results and the case was identified as Electoral Case
Number 16 of 2019. The second responded filed his petition on the 3rd
June, 2019 as Electoral Case No. 26 of 2019.
Both petitions alleged that the 2 nd respondent was not duly elected as the
1st responded did not comply with the constitution and the Presidential
and Parliamentary Elections Act in the conduct and Management of the
election.
Both petitions were filed under Section 100 of the Parliamentary and
Presidential Elections Act (hereafter referred as PPEA) which provides that
a complaint alleging an undue election by reason of irregularity or any
other cause shall be petitioned directly to the High Court within seven
days.
Consolidation of the petitions and certification as a constitutional
case.
The two cases were brought before Justice Mkandawire who made two
observations. First that the two cases were related as they rose from the
same transaction and they addressed a common question of law. He also
observed that there were no good reasons to continue the cases
separately. He therefore made a Consolidation Order in relation to 6 Rule 9
of the Courts (High Court) (Civil Procedure) Rules, 2017 that the two
petitions be merged into one proceeding.
Secondly Justice Mkandawire was satisfied that the two claims were
constitutional in nature and they therefore required the attention of the
Chief Justice for purposes of certification in terms of Section 9 (3) of the

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Courts Act (cap 3:02) of the Laws of Malawi. Justice Mkandawire observed
the following constitutional issues;
1. Whether the 2nd Respondent breached its duty under Section 76 of
the Constitution of the Republic of Malawi;
2. Whether the 2nd Respondent breached its duty under Section 77 of
the Constitution of the Republic of Malawi; and,
3. Whether the 2nd Respondent infringed on the Petitioners’ and the
citizen’s political rights under Section 40 of the Constitution of the
Republic of Malawi.
The claims were certified as a constitutional case 1 of 2020 and five
Justices were appointed to preside over it.
Friends of the Court.
The Malawi Law Society (MLS) joined was admitted as amicus curiae
because it is a statutory body tasked with among other things promoting
the highest professional standards among legal practitioners and in the
legal practice and also protecting matters of public interest, toughing on,
ancillary or incidental to the law.
Women Lawyers Association (WLA) was also admitted as amicus curiae
because as an NGO comprising of women lawyers it sought to highlight
some gender aspects relating to the electoral dispute considering that the
majority of people who voted in the election were women.
Preliminaries
In its preamble the court sought to highlight the significance and
unprecedented nature of this case to the Country. This was highlighted as
follows;
a. The Constitution of the Republic of Malawi in Section 12 stipulates
that the authority of the State derives from the will of the people of
Malawi, that all who exercise the powers of State do so on trust, and
that trust is sustained through open, accountable and transparent
Government and informed democratic choice.
b. Perioding and genuine elections are a key and indispensable
element in ensuring the sustained trust of the governed in those
who exercise the powers of the state.
c. Holding genuine and regular elections ensures that those exercising
the power of the state remain electorally accountable.
d. Maintaining an accountable government is a necessary precondition
to the nurturing of an effective scheme for the respect, protection,
promotion and fulfilment of human rights.
e. Genuine, credible, transparent, free and fair elections form the solid
foundation for our pluralist democratic system.

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The Court therefore concluded that those vested with the duty to conduct
elections have a sacred duty and responsibility to all people of Malawi and
in various ways, the political, social and economic Destiney of the country
is predicated upon how they discharge such duties and responsibilities.
Issues for determination
In the course of presenting their legal arguments, the parties herein raised
the following preliminary issues for determination:
1. Whether the Court should deal only with issues that were
specifically and explicitly pleaded in the petitions;
2. Whether the Respondents were bound to specifically file responses
to the petitions in addition to filing sworn statements in response to
the petitions;
3. What is the standard of proof in the determination of electoral
petitions filed under Section 100 of the PPEA?
4. Whether, in the determination of electoral petitions under Section
100 of the PPEA the Court applies a quantitative test, a qualitative
test, or both;
5. What is the effect of the use of the following terms: (a) undue
election, (b) undue return, (c) any other cause whatsoever as
provided for under section 100 ofthe PPEA; in the present
proceedings?
The following issues were raised in the Petitions:
a. Whether, in the presidential elections of the 21st of May, 2019, the
count, audit, transmission, tallying, aggregation of results was
replete with:
1. intimidation;
2. bribing monitors;
3. presiding officers and other polling staff influencing voters;
4. presiding officers and other staff of the 2nd Respondent
tampering with tally sheets to alter the result of the vote at a
particular polling station or tally center;
5. unauthorized persons being found with ballot papers and
ballot boxes;
6. arrest of persons at various places for offences relating to
breach of the country’s electoral law;
7. failure to deliver the ballot papers under conditions of
absolute security.
8. Whether the 21st of May, 2019 presidential elections were
generally marred by blatant and a plethora of irregularities in
all the 28 districts of the country.
9. Whether the 2nd Respondent failed to conduct the electoral
process in accordance with the Constitution and electoral laws
in that:

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10. it used duplicate tally sheets as a primary record of the votes
polled instead of original tally sheets without plausible
justification and in breach of its own procedures as well as
international accounting standards;
11. it accepted the use of tally sheets defaced with a substance
known as tippex as a record of the polled votes in place of the
original results tally sheets with no tippex on them without
plausible justification and in disregard of acceptable set
standards and international accounting standards;
12. it accepted the use of results recorded on fake tally sheets
without paying any particular regard to such anomalies as
signatures of election monitors, barcodes and centre numbers.
13. it altered, varied and transmitted results as submitted in clear
disregard ofthe altered figures recorded on the results tally
sheets;
14. it failed to detect alterations and variations in terms of the
votes recorded in the system and the corresponding results
tally sheets, or that it did not mind the same;
15. it disregarded or transferred missing votes into null and void
votes without any verification whatsoever as to which
presidential candidate the votes belonged to;
16. it adopted, accepted and used results from a stream as
representing the total results for a polling centre;
17. it accepted and used results tally sheets from centres where
the total number of votes cast exceeded the total number of
registered voters;
18. it accepted and used results tally sheets from centres where
the total number of the votes of the candidates was not
balancing with the total number of the valid votes cast;
19. it accepted and used results tally sheets from centres where
the total sum ofused and unused ballot papers was lower than
the ballot papers issued;
20. it delayed in transmitting results from particular areas in
Salima, Dowa, Mchinji and Lilongwe and uploading the same
after alterations.
21. it announced the final Presidential Election results before
results from some Polling Centres, particularly from the
Central Region, had been uploaded into its system;
22. it did not observe processes set by law, for example, by
allowing delivery of ballot papers and other election materials
without security contrary to the requirements of the law,
which demands that such material should be delivered under
conditions of absolute security against loss, tampering or
interference.
23. Its Presiding Officers failed to prepare a brief summary of the
final result Record of the polling process and to furnish a copy

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 of the duly signed summary of the final result at each polling
station to each political party representative as provided for in
the PPEA;
The first petitioners’ case
The 1st Petitioner had intended to rely on evidence from about 38
witnesses whose sworn statements were filed. However, as the 34
witnesses were withdrawn together with their sworn statements. He relied
on the evidence of four witnesses.
The 1st Petitioner alleged that the elections were replete with
irregularities. For example, his own name was missing from the register at
the center where he registered and presented himself. This prompted UTM
to lodge a complaint to the 2nd Respondent.
The other challenges that the 1st petitioner alleged were intimidation of
monitors, bribing of monitors, presiding officers and other staff of the 2nd
Respondent influencing voters on the choice of candidates, tampering
with result sheets in order to alter the result by the staff of 2nd
Respondent, use of duplicate or fake result sheets, unauthorized persons
being found with ballot papers and ballot boxes, arrests of persons at
various places for offences relating to breach of the country’s electoral
law, failure to deal with complaints and failure to deliver ballot papers
under absolute security and giving handouts.
Ms. Gwalidi said that result sheets for 25 polling stations did not have
signatures of presiding officers and monitors, Tippex was widely used
across the country, some polling center result sheets (Form 66C) received
from the 2nd Respondent had different content from the
copies/counterparts, some columns and pages in some of the logbooks
were incompletely filled, open and unsealed result envelopes.
The 1st Petitioner said the outlined irregularities seriously compromised
the elections prompting him to write a letter exhibited as SKC2 to the 2nd
Respondent’s Chairperson asking her to resign.
The 2nd Petitioners` case
The 2nd Petitioner made a sworn statement verifying the allegations in his
petition. He then said that the elections were marred with duplicate forms,
altered forms unsigned, non-customized or tippexed tally sheets with false
information or figures.
Mr. Richard Chapweteka witness for the 2nd Petitioner, was astonished to
know that the 2nd Respondent accepted and used duplicate result and
counterfeit result sheets. Mr Peter Lackson alleged that they were 523
duplicate result sheets, 176 tippexed result sheets, 70 counterfeit result
sheets and 634 altered result sheets.

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Mr. Anthony Bendulo said that the 2nd Respondent delayed in posting
results from 46 polling centres.
Honourable Eisenhower Mkaka alleged that the results received at the
National Tally Centre were announced before being handed to monitors in
advance for scrutiny as promised by the 2nd Respondent. There were
other anomalies such as unsigned form 66 Cs, non-customized result
sheets, use of duplicates for transmission of results and variations and
results using a computer command which approved so many results in
batches within a millisecond without indicating which user did the
approval.
Reliefs Sought
The Petitioners herein sought the following reliefs:
1. Declaration that the election was null and void ab initio;
2. Declaration that the failure by the 2nd Respondent to remedy the
noncompliance, irregularities and improprieties in the conduct of the
election amounts to a grave violation of sections 76, 77 and 40 of
the Constitution;
3. A declaration that the 1st Respondent was not duly elected President
as he did not obtain a true majority of the votes polled;
4. A consequential order for a fresh election;
5. Any other order that the court may deem fit and just;
6. An order for costs.
The 1st Respondent`s case
The first responded paraded 43 sworn statements from 43 witnesses and
largely they denied the following;
1. That the tally sheets that were given to MCP monitors were proved
and verified at the District Commissioner’s Office. The outcome was
that they were the same and there were no alterations.
2. Counting of votes was completed and results declared while all
monitors were present.
3. No any person was chased away from the polling center.
4. They knew of no incident at Thuchila EPA Polling center that would
make one conclude that the presiding officer there was biased
towards any party.
5. The results were placed on a table and monitors for a particular
party were at liberty to inspect the results sheets.
The 2nd Respondent`s Case
Mr. Alfandika responded to the consolidated petitions of the 1st and 2nd
Petitioners.

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 1. He stated that the allegations of both Petitioners that the elections
were full of the cited irregularities or that the elections were
mismanaged so as to cause undue return or undue election of the
1st Respondent were unfounded and did not have any merit.
2. The irregularities were very minor and insignificant which is normal
in any election. The recording of the results was done in the
presence of party and candidate’s representatives.
3. It was demonstrated that the capture of data on the kit is done
offline and a connection to the web service is only needed when an
ICT officer presses the data transmission button and that connection
closes immediately the transmission
Analysis of Evidence and the Law
Section 68 (1) of the PPEA clearly demonstrates that the primary duty to
administer proceedings at the polling station lies with the 2nd
Respondent’s polling station officers as led by the polling station presiding
officer.
Section 70 of the PPEA outlines the necessary items that the 2nd
Respondent is mandated to supply to the polling station thus
authenticated copy of the voters register, the ballot papers and envelopes
for casting, the ballot boxes, the seals, sealing wax and envelopes for the
votes, indelible ink, record sheets, a lamp or lamps and a log book for
formal complaints.
Political parties under Section 72 of the PPEA or candidates are
guaranteed the right to monitor the voting process at the polling station
through representatives.
Section 93 (2) and (3), the presiding officer must recall, respectively, that
representatives of political parties at a polling station are “entitled to a
copy of the duly signed summary of the final result”. He or she is obliged
by law to “post at the polling station a copy of the duly signed summary of
the final result”.
The courts in Malawi have in recent years adopted a quantitative test
when annulling an election result. The number of votes involved, are used
in determining whether the election was affected when determining the
final results as in the case of Phoso v. Malawi Electoral Commission [1997]
1 MLR 201.
Determination
1. In view of the findings that we have made above, we are satisfied
that the Petitioner’s complaints in their Petitions, alleging an undue
return and undue election during the said elections, have been
made out both qualitatively and quantitatively. Our finding is based
on a balance of probabilities which is the appropriate standard of

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 proof to apply in electoral petitions brought under section 100 of the
PPEA.
2. Consequently, in terms of section 100 (4) of the PPEA, we hold that
the 1st Respondent was not duly elected as President of the
Republic of Malawi during the 21st of May, 2019 elections hence
Results are nullified and Fresh elections are ordered.
3. The conduct of 2nd respondent in managing the elections was very
lacking and displayed glaring incompetence. The 2nd Respondent
violated sections 40 (3), 76 (2) (d) and 77 (5) of the Constitution.
4.
Consequences & Directions
1. The status of the Presidency and Vice Presidency reverts to what
was prior before the May 21st Elections.
2. The Ruling doesn’t invalidate all the decisions made by the
Presidency before the ruling.
3. Fresh elections to be held within 150 days including Saturdays and
Sundays and holidays.
4. Parliament using relevant legal instruments to inquire into the
capacity and competency of the 2nd petitioners to hold free, fair
and credible elections.
5. Parliament to enable relevant Acts to ensure use of 50+1 rule as
departure to simple majority. Parliament to meet within 21 days
including Saturdays and Sundays.
6. 1st respondent to bear his own costs. The 2nd respondent should
pay costs for the petitioners. The costs to be assessed by the
registrar within 14 days.
7. complete and the kit goes offline again.

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