The High Court’s panel of five judges further ruled that the simple plurality standard that has determined the winner of each presidential election since the return to multiparty competition in 1994 has gone against the “majority” principle in Malawi’s constitution. The Court called for Parliament to amend the Parliamentary and Presidential Elections Act to explicitly require winners achieve an absolute majority of 50 percent plus one votes.
This ruling is historic. It is the first in Malawi and only the second in Africa (Kenya was the first) to nullify an election and call for a rerun. Key to the ruling was the independence of Malawi’s judiciary but also months of Malawians taking to the streets to protest what they considered poorly managed elections. Here’s what you need to know.
Voting was peaceful, but counting was flawed
In the seven-candidate presidential race on May 21, MEC reported that Mutharika won 38 percent of the vote, while the Malawi Congress Party’s Lazarus Chakwera, the leading opposition candidate, garnered 35 percent. Mutharika’s former vice president turned opposition candidate Saulos Chilima (of the United Transformation Movement) won 20 percent of the vote. Other opposition candidates split the remainder.
Election day was peaceful and orderly, but opposition parties and election observers raised concerns about vote count manipulation — especially “problems … encountered in completing results sheets.” A majority (55 percent) of Malawians felt that the May elections fell short of being free and fair, according to a recent Afrobarometer survey.
Chakwera refuted the election outcome and refused to accept Mutharika’s victory, which he described as “fraudulent.” Chakwera and his party alleged that ballot boxes were stuffed with premarked ballots and that polling centers submitted tampered result sheets — marked with correction fluid sold locally under the brand Tipp-Ex — to the vote tally centers.
The challenges came quickly
After failing to get MEC or the High Court to initiate a ballot recount, both Chakwera and Chilima petitioned Malawi’s Constitutional Court to review the elections. The petition alleged that the electoral process, particularly the processing of results at the local and national tally centers, were not managed in accordance with the law, which should render the results null and void.
Mutharika and his party, the Democratic Progressive Party (DPP), quickly moved to hold his inauguration. Mutharika has ruled as president since.
Malawi’s streets have been crowded with protesters while Mutharika’s legitimacy has been questioned by the opposition in Parliament. On inauguration day, Chakwera led a mass protest march to the High Court in Lilongwe, Malawi’s capital city. Chakwera’s supporters continued protesting, even going so far as to enter Capital Hill, the compound in Lilongwe where many civil servants work.
The ongoing mass protests and allegations about vote manipulation raised questions about election integrity. Photos of MEC Chairperson Jane Ansah at Mutharika’s inauguration circulated on social media — prompting commenters to suggest that she had bias favoring the incumbent.
Malawi’s High Court has been examining the constitutionality of the election result since June. In Monday’s ruling, the court faulted the MEC on several grounds, including: failure to adhere to statutory requirements on handling tally sheets and log books; failure to address complaints raised by the petitioners before announcing election results; delegating statutory powers that belong to the electoral commissioners to the chief elections officer; and accepting tally sheets that had been tampered with correction fluid. More importantly, the court took the view that Mutharika was wrongly declared winner because he did not satisfy the majority threshold of 50 percent plus one votes.
What happens next?
Mutharika and his party have yet to issue a statement. Technically, the president and his government could appeal the decision to Malawi’s Supreme Court of Appeal. However, as the High Court’s ruling was unanimous, such an appeal would be unlikely to end favorably for Mutharika and the MEC.
That means there will be an election some time before July 2. Preparing for an election across 5,002 polling centers to accommodate Malawi’s 6.9 million registered voters will be a challenge — not least because the body tasked with administering the election is the same one that the Constitutional Court found had violated its responsibilities in May.
The court ruling could affect future presidential elections
The High Court’s ruling will resonate beyond July. The court’s stipulation that the electoral system requires a majority of votes may change how parties compete in Malawi.
Almost two-thirds of Malawians voted against Mutharika in the 2019 election, which, under a first-past-the-post electoral system, would not be an issue. In the six elections held since 1994, the victorious presidential candidate has secured majority support only twice, in 1999 and 2009. (An earlier Supreme Court ruling interpreted the “majority” principle in the constitution to only require a plurality.)
Malawians tried in 2017 to change the electoral rules to require a majority for victory — and if no candidate won an outright majority, to require a runoff or second-round election for the top two vote-getters. But the DPP leadership advised its co-partisan (and some independent) members of Parliament to vote against a 2017 election reform bill, which parliament ultimately rejected.
To be sure, Monday’s court ruling left some ambiguity about whether election officials will uphold the majority threshold in the rerun of the presidential elections. And it’s too early to tell whether the opposition will form a pre-electoral coalition. We expect more developments in the days to come.
In Malawi, though, Monday’s ruling was clear evidence that even in a relatively young democracy, one branch of government can hold another branch accountable, especially when citizens take to the streets to demand it.