THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CONSTITUTIONAL REFERENCE NO.l OF 2019 BETWEEN DR. SAULOS KLAUS CII1LIMA..................................................................jsi pETrnoNER DR. LAZARUS MCCARTHY CHAKWERA 2XD PETITIONER -AND- PROFESSOR ARTHUR PETER MUTHARIKA................ ...................^RESPONDENT ELECTORAL COMMISSION................................................ ........ .. RESPONDENT MALAWI LAW SOCIETY................................................................... 1ST AMICUS CURIAE WOMEN LAWYERS ASSOCIATION............................................... 2’S° AMICUS curiae CORAM: HONOURABLE JUSTICE H. POTANI HONOURABLE JUSTICE I. KAMANGA HONOURABLE JUSTICE D. MADISE HONOURABLE JUSTICE M. TEMBO HONOURABLE JUSTICE R. KAPINDU 1 Mr. Chilenga, Counsel for 1st Petitioner Dr Silungwe, Counsel for 1st Petitioner Mr. Mwale, Counsel for 1st Petitioner Mr. Then, Counsel for 1st Petitioner Mr. Soko, Counsel for 1st Petitioner Mr. Msisha SC, Counsel for 2nd Petitioner Mr. Mvalo, Counsel for 2nd Petitioner Mr. Likongwe, Counsel for 2nd Petitioner Mrs. Ottober, Counsel for 2nd Petitioner Mr. Songea, Counsel for 2nd Petitioner Mr. Nita, Counsel for 2nd Petitioner Mr. Mhone, Counsel for 2nd Petitioner Mr. Ndalama, Counsel for 2nd Petitioner Mr. Tembenu, SC; Counsel for 1st Respondent Mr. Mhango, Counsel for 1st Respondent Mr. Kanyenda, Counsel for 1st Respondent Mr. M’meta, Counsel for 1st Respondent Mr. Mbcta, Counsel for 1 st Respondent Mr. Masanje, Counsel for 1st Respondent Mr. Gondwe, Counsel for 1st Respondent Hon. Kaphale SC, The Attorney General, Counsel for 2nd Respondent Dr Kayuni, Attorney General Chambers Mrs. Michongwe, Attorney General Chambers Mr. Chisiza, Attorney General Chambers Mr. Chokotho, Counsel for the 2nd Respondent (Lead Counsel) Mr. Banda, Counsel for the 2nd Respondent Mr. Msowoya, Counsel for Malawi Law Society (Amicus Curiae) Mr. Nkhutabasa, Counsel for Malawi Law Society (Amicus Curiae) Dr. Malunga, Counsel for Women Lawyers Association (Amicus Curiae) 2 Ms. Maluza, Counsel for Women Lawyers Association (Amicus Curiae) Mrs. Pindani, Court Reporter, Mr. Mutinti, Court Reporter Mrs. Nyalaya, Court Reporter Mrs. Mboga; Court Reporter Mr. Chitalu, Interpreter Mr. Nkhwazi, Interpreter Mr. Munkhondya, Interpreter Mr. Mathanda, Interpreter Mr. Matchaya, Inteqireter 3 JUDGMENT POTANI, J PART ONE INTRODUCTION 1. At the outset, I wish to state that this judgement is a product of the collective deliberations and participation of all members of the panel. 2. On the 21st day of May, 2019, the people of Malawi went to the polls in Presidential, Parliamentary and Local Government elections (the tripartite elections) that were held throughout the country. Two of the candidates that contested in the Presidential elections, namely the Right Honourable Dr. Saulos Klaus Chilima and the Honourable Dr. Lazarus McCarthy Chakwera, being the 1st Petitioner and 2nd Petitioner in the present case respectively, have approached this Court seeking nullification of the results of the said presidential elections by the Electoral Commission. The Electoral Commission, which is the 2nd Respondent in the present case, on the evening of the 27,h day of May, 2019, declared that His Excellency Professor Arthur Peter Mutharika, the 1st Respondent herein, had been duly elected President of the Republic of Malawi during those elections. The petitioners are aggrieved by the said declaration by the 2nd Respondent based on grounds that will be outlined later in the present judgment. 3. We wish to thank Counsel for both the Petitioners and the Respondents as well as Amicus Curiae for their great industry and dedication in arguing the present matter. Their arguments and submissions have been of much assistance to the Court in arriving at the present decision. 4. At the start of the proceedings, two bodies asked the Court to be admitted as amicus curiae. The first to apply was the Malawi Law Society (MLS) which is a statutory body tasked with, among other things, promoting the highest professional standards among legal practitioners and in legal practice1 and also protecting matters of public interest touching on, ancillary or incidental to the law.2 The second body to apply for admission as amicus curiae was the Women Lawyers Association (WLA) which is an independent Non-Governmental Organisation that comprises i Section 64(a) of the Legal Education and Legal Practitioners’ Act, Act No. 38 of 2018. 3 Ibid, at Section 64(d). 4 women lawyers from various disciplines, callings or vocations in the country. In its application for admission as amicus curiae, the WLA stated that it had noted that the majority of the people who voted in the 21st May, 2019 general elections were women and that it sought to highlight some of the gender aspects relating to the electoral dispute herein. The Court was satisfied that there was merit in both applications and admitted the MLS and WLA as amicus curiae. 5. At the outset we wish to emphasise what we said at the close of hearing of the case. We are aware that this is a matter that has attracted widespread public opinion and interest. However, what the Court has been focused on has been to analyse the law and the facts as the Constitution mandates us to do in section 9. We agree with the words of Chaskalson, J (President of the Court, as he then was) in the South African case of the State v Makwanyane and another [1995] 3 SA 391 (CC) where he stated that: “Public opinion may have some reverence to the inquiry but by itself, is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication.” 6. Upfront, the Court wishes to point out that it is alive to the enormous importance and the unprecedented nature of the present proceedings and of this judgment in particular, to the nation. The constitutionality, legality and generally the validity of the presidential elections of the 21st day of May, 2019 is being impugned by the petitioners. The Court is mindful that this is the first time that the validity of presidential elections has been subjected to a full trial before the courts in this country. We are aware that in 1999, in the case of Chakuamba and others v Attorney- General and others [2000-2001] MLR 26 (SCA), there was a challenge of the presidential election results but the said challenge was premised on the interpretation to be ascribed to the meaning of the term “majority of the electorate” as provided for under section 80 (2) of the Constitution. The challenge did not relate to the conduct and management of the said election. The Court reckons that periodic and genuine elections are a key and indispensable element in ensuring the sustained trust of the governed in those who exercise the power of the State. The Court recognises that the right of everyone to take part in the government of his or her country is an essential element in the effective enjoyment by all of their human rights. Holding genuine and regular elections ensures that those exercising the power of the State remain electorally 5 accountable and, in turn, 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. 7. The Constitution of the Republic of Malawi is very clear, under Section 12, that (he authority of the State derives from the will of the people of Malawi,3 * that all persons responsible for the exercise of the powers of State do so on trust,4 and that the authority to exercise State power is conditional upon the sustained trust of the people of Malawi.5 The Constitution goes further to elucidate that such trust can only be maintained through open, accountable and transparent Government and informed democratic choice.6 It is clear from the scheme of the Constitution that the expression of such democratic choice is what Section 6 of the Constitution envisages by providing that in Malawi, the authority to govern derives from the people of this country as expressed in elections held in accordance with the Constitution, and on the basis of universal and equal suffrage. Section 6 of the Constitution goes further to state that those elections must be conducted in a manner prescribed by an Act of Parliament. 8. Thus, genuine, credible, transparent, free and fair elections form the solid foundation for our pluralist democratic system.7 Those vested with the duty to conduct such elections, therefore, have a sacred duty and responsibility to all the people of Malawi and, in various ways, the political, social and economic destiny of the country is predicated upon how they discharge such duties and responsibilities. 9. The Court is mindful that an electoral dispute, particularly one that deals with the national leadership of the country at the presidency level, is one that cannot be taken lightly and that it demands of all actors involved to act with the utmost diligence and scrupulousness. Like other courts have stated elsewhere, we wish to likewise quickly state that this Court stands “in admiration of the Constitution’s design to leave the selection of the President to the people.. .and 3 Section 12( I Xa) of the Constitution. 4 Section J 2( 1 Xb) of the Constitution. 3 Section 12( I Xc) of the Constitution. 4 Ibid. ’ The pluralist character of Malawian democracy is evident from, among others, the provisions of Section 40(l)(a) of the Constitution; Section 40(2) of the Constitution; Section 65(2) of the Constitution; the proviso to Section 80(5) of the Constitution, and Section 32(3) of the Parliamentary and Presidential Elections Act (PPEA). Section 32(3) of the PPEA provides that: “A candidate may stand for election as a member of the National Assembly or for election to the office of President either on the sponsorship of a political party or as an independent candidate, and the rights and duties conferred by this Act on political parties shall apply, mutatis mutandis, to an independent candidate as it applies to political parties.” 6 to the political sphere”.