Malawi’s nullified presidential elections and the plurality vs majoritarian (run-off) debate

While the decision of the High Court of Malawi nullifying the presidential elections has attracted wide attention, its most momentous pronouncement, arguably, relates to the replacement of the plurality electoral system for presidential elections with a 50%+1 majoritarian system. Although this aspect of the judgment may be reversed on appeal, it has placed electoral reform firmly on the political agenda – writes Prof Mwiza Jo Nkhata.

On 3 February 2020, the High Court of Malawi, sitting as a constitutional court, delivered its judgment in the case of Dr Saulos Klaus Chilima and another v Professor Peter Mutharika and another (Chilima Case) nullifying the Presidential Elections of May 2019. The Court further held that presidential candidates must garner 50%+1 of the valid votes to win elections, thereby invalidating the hitherto accepted plurality system for presidential elections. In making this finding, the High Court departed from the position established by the Malawi Supreme Court of Appeal (the MSCA) in Gwanda Chakuamba and others v Attorney General and others (Chakuamba Case), and effectively ’revised’ the formula for electing presidents in Malawi.    

Ironically, implementation of the judgment in the Chilima Case would give effect to repeated failed electoral reform initiatives, including those rejected in the runup to the May 2019 elections which included a proposal for the 50%+1 majoritarian system for electing presidents. The decision has been appealed to the MSCA and the possibility of reversal remains. Nevertheless, even if reversed, the decision has put the issue of the plurality system for presidential elections firmly on the political agenda and enhanced the likelihood of electoral reform.

The May 2019 Parliamentary and Presidential Elections

The May 2019 General Elections were the most contested elections in recent history. The Electoral Commission declared the incumbent, Professor Arthur Peter Mutharika, the winner with an official vote share of 38.57%. The runner up, Dr. Lazarus Chakwera, polled 35.41%. Mutharika’s erstwhile vice president, Dr. Saulos Chilima, came third with 20.24% of the total votes.

While international observers were quick to pass the elections as peaceful and fair, the outcome was quickly contested. Before the counting and tallying of votes was finalized, Chakwera obtained a court order restraining the Electoral Commission from announcing the results. This order, however, was vacated and the Electoral Commission proceeded to announce the results. Subsequently, both Chilima and Chakwera filed petitions before the High Court challenging the declaration of Mutharika as the winner. After a lengthy and highly contentious trial, the Court delivered its judgment nullifying the presidential election.

The crux of the petitions was that the presidential election was marred by widespread irregularities such that it could not be said that Mutharika had been duly elected as president. The petitioners canvassed a plethora of issues relating to irregularities that afflicted the election and it is beyond the scope of the present discussion to delve into these issues. However, one irregularity came to define the whole case and this was the use of correction fluid - Tippe-Ex - on results forms. Suffice it to highlight that one of the reliefs sought by the petitioners was a ‘declaration that [Mutharika] was not duly elected President as he did not obtain a true majority of the votes polled’. It is from the Court’s resolution of this issue that, arguably, its most momentous pronouncement has come.

How did the Court arrive at 50%+ 1? A tale of two judgments

In order to determine whether Mutharika had been duly elected, the Court had to interpret the meaning of the words ‘a majority of the electorate’, as used in section 80(2) of the Constitution under which ‘the President shall be elected by a majority of the electorate through direct, universal and equal suffrage’.

The Court recognised that the question about the meaning of ‘majority of the electorate’ had previously arisen in the Chakuamba Case, where the initial point of contest was the correct meaning of ‘the electorate’. In that case, the petitioners had argued that ‘the electorate’ meant every registered voter, irrespective of whether one actually cast their vote or not. Following this interpretation, the petitioners contended that a successful presidential candidate ought to receive a majority of votes calculated as a percentage of all registered voters. The petitioners also argued that ‘majority of the electorate’ meant a majority of 50%+1. According to the petitioners, a president could only discharge his duty to provide leadership in the national unity if he was elected by a majority of at least 50%+1. The High Court dismissed the petitioners’ arguments and on appeal, the MSCA held that ‘the word "majority" means "a number greater than" a number achieved by any other candidate. And it can only further mean the greater number of those electors who actually voted in the elections.’

The question of the electoral system was considered settled based on a decision of the Supreme Court of Appeal in 2000.

In the Chakuamba Case, therefore, the MSCA cemented the First-Past-the-Post (FPTP) plurality system for electing presidents. Chilima and Chakwera’s challenge to Mutharika’s election in May 2019 reignited the question of the correct meaning of the ‘majority of the electorate’.

In the Chilima Case, the Court, while conceding the existence of a binding precedent on the meaning of ‘majority of the electorate’, held that the MSCA’s decision on this issue had been reached per incuriam (without due regard to the law or facts). While the Court agreed with the MSCA on the meaning of ‘electorate’, it concluded that ‘majority’ meant 50%+1. Following this finding, the Court held that, on this ground alone, the May 2019 Elections could have been nullified since no candidate had attained the required majority. This finding notwithstanding, the Court went at length to interrogate and dispose of all irregularities alleged by the petitioners.

Specifically, in relation to the meaning of ‘majority’, the Court started by pointing out that the MSCA erred in presumptively importing the meaning of ‘majority’ from other sections of the Constitution without unpacking how those other sections of the Constitution actually used the term. The Court, principally, relied on three grounds to depart from the MSCA’s position. Firstly, in relation to the meaning of ‘majority’, the Court found that the practice of Parliament, in relation to use of the term ‘majority’, confirmed its position that this meant 50%+1. According to the Court, contrary to what the MSCA found in the Chakuamba Case, and as confirmed by parliamentary practice, the other provisions in the Constitution use the term ‘majority’ to mean 50%+1. Secondly, the Court held that in the Chakuamba Case, the MSCA ignored its earlier decision in Attorney General v Malawi Congress Party and others. Although this decision was not on the meaning of ‘majority’ as used in section 80(2) of the Constitution, the Court held that it provided a good indication of what ‘majority’ ought to mean in Malawi.

Thirdly, the Court also reasoned that the MSCA erred in failing to consult an authoritative dictionary in respect of the meaning of ‘majority’. The Court found that the MSCA referred to the Oxford Advanced Learner’s Dictionary for establishing the meaning of some terms but not for defining ‘majority’. For its part, the High Court referred to the Black’s Law Dictionary to ascertain the meaning of ‘majority’. The Court found that there is a ‘difference in the legal definition of majority as opposed to plurality’ and that in the Chakuamba Case, the MSCA could have established this by consulting an authoritative dictionary. The Court’s conclusion is unequivocal:

An alternative interpretation, such as that adopted in the Chakuamba case, would lead to an absurd result. It could entail that a person could be elected even with as little as 10% or less of all the valid votes cast in the election. This is clearly inconsistent with the principle that the authority to govern in a democracy derives from the majority of eligible voters who take part in the election by actually casting their votes. 

The Court’s ultimate conclusion is revealing for several reasons. First, although the Court and the MSCA reached different conclusions, they, largely, adopted a similar approach to constitutional interpretation. For example, both courts had recourse to dictionaries to discern the meaning of contested words. Admittedly, the High Court consulted a specialised legal dictionary – Black’s Law Dictionary – while the MSCA used a regular dictionary. The High Court’s conclusion is that specialised legal dictionaries ought to take precedence in identifying the ordinary legal meaning of words not just the ordinary every day meaning of words.

Second, the Court’s finding that the conclusion in the Chakuamba Case could lead to an absurd result is also striking. The Constitution, in section 6, stipulates that ‘the authority to govern derives from the people of Malawi as expressed through universal and equal suffrage in elections …’. Section 6 underlines the democratic foundations of the State in Malawi. It neither prescribes a specific form of democracy nor ordains a particular method for electing presidents. As experiences across the world demonstrate, democracies are many and varied. In their many variations, they also define different ways of converting votes into a governing mandate. A FPTP system is not, by itself, fundamentally undemocratic and cannot be said to contravene section 6 of the Constitution.

There was little reference to comparative experiences in the High Court's decision, despite that being central to the MSCA decision. 

Third, in the Chakuamba Case, the MSCA attempted to address the question of the intention of the framers of the Constitution in discerning the meaning of ‘majority of the electorate’. Aside from a salutary recognition of the major canons of constitutional interpretation, the Court did not engage with this relevant dimension of inquiry in the Chilima Case. In the Chakuamba Case, the MSCA alluded to the fact that the absence of provisions, in the Constitution and other laws, providing for a second round of voting, in the event the first round did not produce a clear winner, conclusively suggested that the framers of the Constitution never intended there to be more than one round of voting. The MSCA even went further to survey countries that provide for more than one round of voting and found that in all such countries clear provisions governing the second-round voting are already in place. The Court, in the Chilima Case, did not dwell on these issues. But, by ordering Parliament to take steps to give effect to section 80(2) of the Constitution, the Court conceded the existence of a legislative lacuna. In fairness, the existence of this patent lacuna and its implications required more attention than what the Court actually gave.

Finally, also absent from the Court’s determination is an attempt at a comparative analysis of the provisions in other constitutions and laws which provide for a second round of voting. This, while not fatal of itself, may suggest an overly inward gaze by the Court in the interpretation of the Constitution. The Constitution permits recourse to comparative law as an aid in interpretation. Although such recourse is not mandatory, it is striking that on the meaning of ‘majority', apart from consulting the Black’s Law Dictionary, Attorney General v Malawi Congress Party and others and distinguishing the MSCA’s decision in the Chakuamba Case, the Court’s judgment makes no reference to any comparative jurisprudence. The existence of a judgment from the MSCA supporting a contrary meaning of the term ‘majority’, arguably, pointed to the fact that the plain meaning of ‘majority’ was contested and hence requiring more careful unpacking.

Momentous but vulnerable to reversal

Given the history of failed electoral reforms in Malawi, the Court’s construction of the meaning of ‘majority’ is a windfall. Since both the Electoral Commission and Mutharika have already lodged appeals against the decision, the final outcome remains to be seen. Admittedly, the petitioners had asked the Court to declare that Mutharika was ‘not duly elected President as he did not obtain a true majority of the votes polled’. It seems, however, that the petitioners may have gotten more than what they prayed for and the clearest hint one gets of this is from the Court’s assessment of the parties’ arguments on the matter, where it notes that neither the parties nor amici curiae directly addressed the issue of what ‘majority’ entailed even when invited to do so by the Court.

The business of foretelling judicial outcomes is a perilous one, more so over very contentious issues such as the ones that were before the Court in the Chilima Case. Overall, the Court’s judgment is magisterial in its analysis of electoral law in Malawi and it is likely that the bulk of its findings will remain undisturbed on appeal. Ironically, it is probably the most innovative part of the Court’s judgment – the 50%+1 pronouncement, that is most in peril of being reversed on appeal. But as lawyers in Malawi are accustomed to say, ‘anything can happen on appeal’. In any case, the judgment has put the issue of the presidential electoral system firmly on the political agenda and electoral reform appears more likely now than ever before.

Mwiza Jo Nkhata is Extra-Ordinary Professor at the Free State Centre for Human Rights, University of the Free State.