Malawi judges feast on CJ Malaba

Chief Justice Luke Malaba

THE Malawi Supreme Court has condemned Zimbabwe’s ruling on the 2018 election petition case, while unanimously upholding an earlier court ruling to annul President Peter Mutharika’s narrow election victory last year.


The Malawi Supreme Court made the remarks on Friday while presiding over an appeal by Mutharika over an earlier ruling nullifying his May 2018 presidential victory.

The judges said they doubted that the decision by the Zimbabwean court led by Chief Justice Luke Malaba in the Nelson Chamisa v Emmerson Mnangagwa and 24 others case was a good approach.

“The Zimbabwe case of Chamisa v Mnangagwa and 24 others (supra) seems to suggest that as a general rule, an election will not be annulled if a breach of the law did not affect the election result,” part of the Malawi ruling read.

“We have doubts that this would be a good approach, particularly where serious breach of the law is involved.”

Zimbabwe held its general elections on July 30, 2018, which announced the Zanu PF leader Mnangagwa as the winner of the presidential vote.

MDC Alliance leader Chamisa contested the result, but the Constitutional Court (ConCourt), led by Chief Justice Malaba upheld Mnangagwa’s narrow and controversial victory.

The ConCourt judges said Chamisa had failed to prove that Mnangagwa connived with the Zimbabwe Electoral Commission to manipulate results in favour of the Zanu PF leader.

The ruling added: “What if the numbers themselves are as a result of an inaccurate counting, intimidation, fraud or corruption? Surely, for an election to be truly free, fair and credible, it must be conducted in full compliance with the Constitution and applicable electoral laws.”

The Malawi Supreme Court said an “election can only be free, fair and credible if it fully complies with the dictates of the Constitution and applicable electoral laws as well as principles of transparency and accountability”.

“Overtime, the courts have progressively interpreted relevant provisions of the Constitution and electoral laws in a way that views elections not just as an event, but as a process. The integrity of the electoral process has been recognised to have an important bearing on what happens at the polls.

“This court is alive to the fact that it is rare that elections are set aside on light or trivial grounds, considering what goes on in the preparation for elections.

“Accordingly, this led the courts to develop a legal philosophy that even if there is non-compliance, as long as results are not affected, that result of the election will not be annulled. (See The Zimbabwe case of Chamisa v Mnangagwa and 24 others (CCZ 42/18) (2018) ZWCC (24 August 2018).

“That philosophy suggests that whatever level of non-compliance with the Constitution and electoral laws and howsoever serious electoral irregularities may have been committed, an election will be allowed to stand as long as the petitioners do not demonstrate that the non-compliance or irregularities affect the number of votes in the election.”

In the Malawi May 2018 election, Mutharika got 38,7%, Lazarus Chakwera of the opposition Malawi Congress Party had 34,1% and Saulos Chilima, leader of the opposition United Transformation Movement, got 20,2%.

A new election will now be held on July 2, for which three candidates, including Mutharika, filed their nomination papers this week.

The Supreme Court said various breaches in the Malawi election undermined the duties of the Malawi Electoral Commission and rights of voters.