Malawi Supreme Court upholds 50 +1 constitutes majority vote not first-past-the-post

May 8, 2020 Wongani Chiuta - Nyasa Times 77 Comments

The seven-judge panel of the Malawi Supreme Court of Appeal has ruled that the interpretation on what the majority means in the presidential elections is  50 +1 as  truly representative of the will of the people.

Senior Counsel Modercai Msisya being checked by security at the Court premises-pic by Lisa Kadango
DPP Secretary General Grezdar Jeffry interacts with MEC Lawyer Tamando Chokhoto and Lawyer Chancy Gondwe at the Court-pic by Lisa Kadango-
Vice President Saulos Chilima and Malawi Congress Party (MCP) presidential candidate Lazarus Chakwera asked the court to nullify presidential election

The seven-member judges’ panel of Justice of Appeal (JA) including Lovemore Chikopa, JAs Edward Twea, Anaclet Chipeta, Anthony Kamanga, Frank Kapanda and Rezine Mzikamanda said the matter appeared up for consideration in the lower court.

The court said there is no doubt that the issue of the meaning of majority was under question in the court proceedings but the parties failed to address the matter, gave scanty regard, when the court asked them to discuss the issue.

“It is important issue that raises the issue of legitimacy at presidency level,” said Justice Renzine Mzikamanda in reading the ruling.

Section 80 (2) of the constitution provides that the  President shall be elected “by majority of the elections through direct, universal and equal suffrage.”

“We hold this [50 +1] is the correct meaning of the majority. It will guard against manipulation of votes,” he added.

“It would be absurd that a presidential candidate who amasses 10 percent of the votes would be regarded as a majority vote.”

The MEC declared Mutharika the narrow winner of the May 2019  election with 38% of the vote, followed by Lazarus Chakwera with 35% and Saulos Chilima with 20%.

The Constitutional Court ruled that its interpretation of the section 80 (2) of the Constitution the word majority means 50+1 of the votes at the polls not the first-past-the-post.

Justice Mzikamanda said such interpretation safeguards principles of transparency, honesty and integrity.

In their judgement, the ConCourt judges comprising Healey Potani, Dingiswayo Madise, Ivy Kamanga, Redson Kapindu and Mike Tembo unanimously ruled that President Peter Mutharika was not duly elected in May 2019  because there were irregularities and he did not attain the majority vote.

However the Supreme Court expressed sharp disapproval of the Constitutional Court in making their declarations of the meaning of the majority:.

‘‘The court below should not have chastised the Supreme Court in the manner it did when determining the meaning of the majority.”

The Supreme Court – the final arbiter in the matter, nonetheless said: “We are in no doubt that the correct meaning of majority is  50 +1 and we depart from the Gwanda Chakuamba case. We will not allow thr absurdity of the meaning of majority affect the democratic will of the people.”

The ConCourt subsequently ordered a fresh election within 150 days of its judgement and directed Parliament to make some legislative provisions that would support the 50+1 constitutional provision.

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77 replies on “Malawi Supreme Court upholds 50 +1 constitutes majority vote not first-past-the-post”

  1. Well there is no need for APM to attack the Judiciary. He knows that after this ruling he can call the parliament to vote against the 50 plus one interpretation, which is now a law, or call for a national referendum. So stop attacking the learned Judges. The only problem is that he does not have enough time due to the coming elections. The referendum may still take place when he is already out of office.

  2. Muthalirenji! Do you think your thinking is excellent kkkkkkk. Suppose the MEC ndi Ansah, whom do you think she can vote for to break the tie? For your information referee salowa in the ground to play so your thinking is below average.

  3. Mongokumbutsana 20 years ago our democracy was ruined by Bakili Muluzi through his corrupt practices. Some of these comrades are vindicated by this ruling: GWANDA CHAKUAMBA…1ST APPELLANT

    – and –

    KAMLEPO KALUA ..2ND APPELLANT

    – and –

    BISHOP D. KAMFOSI MNKHUMBWE …3RD APPELLANT

    – and –

    THE ATTORNEY GENERAL..1ST RESPONDENT

    – and –

    MALAWI ELECTORAL COMMISSION…2ND RESPONDENT

    – and –

    THE UNITED DEMOCRATIC FRONT ……3RD RESPONDENT

    BEFORE- THE HONOURABLE THE CHIEF JUSTICE
    THE HONOURABLE MR. JUSTICE UNYOLO, JA
    THE HONOUR-ABLE MR. JUSTICE MTEGHA, JA
    THE HONOURABLE MR. JUSTICE TAMBALA, JA
    THE HONOURABLE MRS JUSTICE MSOSA, JA
    Stanbrook Q.C, Counsel for the Appellants
    Munlo, SC, Counsel for the Appellants
    Bazuka Mhango, Counsel for the Appellants
    Kaliwo, Counsel for the Appellants
    Henderson, Counsel for the Appellants
    Fachi, SC. Counsel for the 1st Respondents
    Matenje, Counsel for the 1st Respondents
    Goudie Q.C, Counsel for the 1st Respondents
    Pit-Payne, Counsel for the 1st Respondents
    Kaphale, Counsel for the 2nd Respondents
    Chisanga, Counsel for the 2nd Respondents
    Latif, Counsel for the 3rd Respondents
    Maulidi, Counsel for the 3rd Respondents
    Chirambo (Mrs), Official Interpreter/Recorder
    Mbwekwani (Mrs), Official Interpreter/Recorder

    JUDGMENT

    Banda, C. J.

    This is an appeal from the Ruling of Mtambo J, sitting at the District Registry in Lilongwe. The Ruling was delivered on 19th May 2000. The issue before the learned Judge in the lower court concerned the interpretation of the provisions of section 80(2) of the Constitution.

  4. Was this a judicial review or an appeal case? Since 1994 how many elections did MEC use 50 + 1? This is an emotional approach. It is disgrace to our supreme court. If we want to correct the mistake already done, we have to correct it in the right way because such decisions becomes our future reference.

  5. Justice and Sanity have preveiled. Malawi Judiciary is No. 1 in Africa, if not the entire world. It is setting a good precedence for African countries’ justice systems. Viva Malawi Justice system viva our Judges. Now turning to MCP/UTM Alliance, do not behave like the Malawi National Football Team (The Flames) who think when they are Leading by 2 Goals to Zero at Half Time, they have won the Game, only to conceed 3 Goals in the second Half, thus making the opponent to win the Game by 3 Goals to 2. Please MCP/UTM, this is the time to go flat out and campaign. Intensify this compaign in the strong holds of DPP and UDF. The Game is not won and over until the Final Whistle is Blown. We Pray to our Merciful Sovereign God to After and Before you in Jesus’ Name, Amen and Amen.

  6. So the Supreme Court has gone against its own ruling? Kkkkk when judges become politicians this is what happens.

  7. The Malawi judiciary is very reactive and not necessarily proactive. The same courts rulled during Gwanda that majority means first-past-the post. The same courts are rulling now that majority means 50+1. Our courts are So inconsistent! What kind of justice is this one? Kodi poweruza mulandu tizingoyendera kuti lero kwacha bwanji? And does it mean kuti courts can make laws and not parliament? Kodi mesa 50+1 yakanidwa kawiri ku parliament? Pano ndiye lasanduka lamulo? Nanga za RERUN in case of a tie-vote zilimo mumalamulomo? If 50+1 was already law, why were we not using it all these years? Where were you learned judges and lawyers?

    To me, the judiciary is now shameful and full of appeasement. It rulled to appease Bakili, and now it has rulled differently but on the same matter jus to appease the opposition. Is that what you call justice?

    And if you are saying only previous contestants must stand, ndiyetu ma running mate akhale omweaja.

    This is a total miscarriage of justice. Shatapu.

  8. Our courts are without a doubt among the best in the world. Proud of you and proud to be Malawian.

  9. Can I be schooled by the leaned colleagues, is there a provision for runoff between 1 and if they fail to reach 50% if yes why have we not used it before if no what is implication on our electoral process?

  10. Majudge ophunzira bwino akuganiza kuti 50%+1 law can can help in case of leading candidates getting same number of votes. They couldn’t imagine that even in 50%+1 we can have leading candidates have same number of votes: it’s possible to have APM and Chakwera all having 2,105,199 votes!
    Think outside the box osamangokopera zakunja. Why not continuing kuti in case of a tie MEC Chair should have a casting vote?

    2. Sometimes it’s best to keep your poor opinion to yourself. You’re a disgrace to your family

    5. Utter nonsense. Why should MEC chair have a casting vote to decide the winning president? Do you know what it means to have a casting vote? Can it apply in electing national leaders where millions of voters take part? Please don’t copy and paste opinions.

  11. What the supreme Court has done is to interpret the law. That’s why 50+1 becomes the law and will be used in the July elections. Maturity of democracy and power to the people

    1. We are using the same constitution which does not have a provision for a re-run. So, the judges will end up having a rude awakening.

      1. I disagree with you Mr Phiri. Constitutional Court ordered that the Members Of Parliament should propose in the act of Parliament PPE to have a backup for the Section 80 Subsection 2 of our Constitution which when proposed by Parliament President Mutharika refused to sign into law, now that supreme court has reaffirmed it Presidential Elections in Malawi will go by interpretation and order of the Supreme court of Malawi. but still more there will be the gap between PPE Act and Constitution because the backup is not made into law. But because Constitution is greater than act the prescription of Constitution will be followed in anyway..

  12. Bakili should be ashamed, he had a hand in supreme court ruling that wrongly interpreted the word majority, we assume money exchanged hands. As for APM God says I will harden the heart of Pharaoh so that what he wanted should be done.

    1. Akulu its not 50+1% but 50% +1 what you have indicated means different thing….check zinthu musanalembe komanso muzikhala kuti mwamvetsetsa….ok

  15. 50 plus one abale ndi alongo achigawo chapakati ndikumwere. Tisangalale. Mtumbuka sadzalamulira dzikoli. Whichever region as long as north Korea is not involved it is well

    1. whatever what have you benefited by having a president coming from south? tobbaco tenants still come from south, poverty levels are still high in the south,illiteracy levels are still very high in the south, in summary Malawi remains the poorest country on earth despite all presidents coming from south region, there are things that when u write you must be very proud of and not just typing any rubbish, it is Malawi that has won based on today supreme court ruling, we will do away with tribal leadership, a president must only rule with majoritarian leadership, and this marks of the end of tribal political dynasty of Muluzi and Mutharika

      1. Ironically, it is Tumbuka judges led by the thief Kasambara pushing 50+1. The unintended consequence is the north will never produce a president.

    1. We will cross the bridge when we reach there but as for today mfiti zanyongedwa basi.

    2. Judgement looks good for the appellants today but there is still a big river to cross. Victory to which ever the candidate after crossing remains the secret of God. No man knows.

  19. First of all, Jane Ansah must resign immediately no more excuses……and she should not be paid a single tambala for her retirement.
    Am also hearing that she has declared the the MEC has a K8 billion deficit….this has to be investigated and we need to hear from her why she thought it was of paramount importance to hire foreign lawyers when MEC was already struggling financially.

    Secondly we need the Supreme Court to apologise to Gwanda Chakwamba and MCP at large for a miscarriage of justice…….it’s a shame that Gwanda passed away without knowing that he was right in challenging the majority electoral rule of Malawi.

    Thirdly all current MEC commissioners must go forth with, their incompetence and corruption has costed our country so dearly, we are running a second election the money of which could have been used to develop our country.

    Lastly I would like to propose that Martha Chizuma the ombudsman should manage the July elections…..

    Ndatha one yanu Mbonga.

    1. Then let the judges pass 50+1. What will happen if the bill is defeated in parliament?

  21. The judges are trying to impose 50+1 which petitioners did not ask ConCourt. What will happen is a Constitutional Crisis because the 50+1 bill has been rejected by parliament twice.

    1. Sindimapawona apa…Komano if parliament rejects it this time, they might be in contempt of court..what will happen is for all to ponder. Iam not a legal expert to competently comment on this. I will be schooled in due course as things unfold…

      1. @ jonas: Parliament is sovereign and cannot be in contempt of court. Parliament has powers to impeach the president or the supreme judges. Parliament can never be tied because it is representing the people and not a party. The power of Parliament is limited in few cases but still Parliament can override those limitations.

      2. Parliament is sovereign so judges cannot hold them in contempt for voting – or rejecting a bill.

    2. Duwa go back to basics, case law means law, supreme court ruling by default it means law, in next elections 50+1 rule will apply wither they like it or not, if u cant understand this go and gug a transformer and die together with your master

  22. Educate me pliz, is 50+1 going to be used in the coming election? Has Parliament amended the constitution? Does the supreme court has the power to amend the constitution?? Educate me pliz

    1. The courts cannot amend the constitution. Parliament has not amended the constitution after those illegal bills were not signed. That is what will show how foolish these judges are.

      1. No need to amend the constituion the word majority is there!
        What is to happen is the law has to change to reflex 50% plus 1 for example will a run-off happen for say the 2 top contenders or top 3 or 4 contenders. Likely be only the top 2.
        Possibly force coalition parliments,

    2. Have you ever heard about a Case Law? 50 plus 1 is now a law. To change it, the Parliment must seat and reject it but as things stand now it is a law. A Case Law to be specific. What a court determines automatically becomes a law. Case Laws do not need the President to assent becuase the President is subjected to court judgement and has no power to reject court judgement. Doing so is a crime.

    3. 50+1 is the law and has always been the law, parliament doesn’t have to do anything. we have interpreted majority wrongly in past elections and now the courts have clarified what the constitution means when it says majority wins, it means 50+1. The majority, as stipulated in our constitution, doesn’t mean 38%

  23. Let’s agree we shall no longer have more than two large parties competing for the presidency in Malawi. Malawi will be drawn into two large camps which increases the chances of political violence and intolerance. This is the beginning of sorrows.

    50+1 has its prons and cons and for a democracy like Malawi the kaya

    1. My friend dont lie here, the people who drafted the constitution knew very well that a president cant go to statehouse with only 10% of the votes cast, it defeats the whole essence of democracy, a president must be rule with Majoritarian leadership, these tribal leadership have cost our country for 26 yrs honestly

  26. 50 +1 was already defeated in parliament and parliament is representative of the people.

    1. Wrong!

      Parliament (therefore by extension MPs) represents itself. Otherwise Malawi would have been a better country already. Any sane person can see by the way these (dis-)honourable members of the circus conduct themselves!!!! They are in it to coin it bruh!

      Unless you are an MP yourself, you will argue against what I have just said.

      Kkkkkkkk Kkkkkkkkkkkk Kkkkkkkkkkkk

    1. Previous ruling was not about a Presidential Election,
      If you had listened to the ruling you would understand the reason of the ruling.

      First past the post will apply in certain circumstances such as for MP’s and Councillors But NOT for the President who is to represent the Whole Country which is the good thing cannot represent only Southern Region or Central Region,
      1 Malawi, 1 Country, 1 People stop thinking regional,

  29. So, if parliament does not pass 50+1 what happens? Such a change requires 2/3 majority. Corrupt and incompetent judges continuing their rampage.

    1. There is no need to pass a law. the law is already there. what parliament needs is to enable the environment to implement the law. no need for accent by president

  31. Nobody will get 50+1. Mutharika will still rule until 2024 wooooooo. Chilima And Chakwera no going to State House. Mukalambira ku opposition. Cilima atha ngati underwear yosapita nayo kwa telalala
    Mark my words

    1. Pita ukakolope nyanja and go back to school. At the moment, there are only two major blocks in upcoming election (Mbakuwaku is time waster). Between the two major blocks, there is no way one can fail to get 50+1 vote. This election will be like a run-off already.

  32. Very absurd that a president of 10% votes cant be boasting of ruling our country, thank Malawi supreme court of Appeal, you have saved this country from further mediocrity!!! no one will take voters for a joke honestly!!! a new Malawi begins!!!! Jane Ansah this is very shameful for you, your fellow supreme court judges have rebuffed you on technical grounds, this is highly questionable your education and capabilities. resign because it is very cler now that you rose the ranks through sexually transmitted promotions and not merit, as you have failed to even understand the very basic laws of your profession!!!

  33. Fellow Malawians, 50 +1 majority is here to stay whether one likes it or not, it will decisively deal with the Lomwelisation syndrome, already Atupele Muluzi is the first beneficiary.It will promote the equal sharing of the National Cake.

      1. Duwa,
        Majority for what? supreme court has said that 50 -1 from now onwards shall be used in the next elections, it doesnt need parliamnet again, mwauponda basi kagweleni uko ndi DPP, times have changed!!!

  35. Parliament should have met and repassed the electoral bills which the president was obliged to sign. All this means it highly unlikely elections are going to be held on 2 July…… BUT LET JUST HOLD TRIPARTITE ELECTIONS IN ORDER TO TRULY RECONCILE MALAWIANS…IZI ZA PRESIDENT ONLY WILL NOT BRING PEACE/CLOSURE.

  37. This is a landmark decision for our children. They will no longer give the presidency to their brothers and sons unless they qualify.

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