PSI condemns appeal against constitutional court judgment in Malawi

PSI is shocked and outraged at the decision by the ruling government of Malawi to appeal against the judgment meted by the Constitutional Court of Malawi on the last general elections.

Malawi's President Dr. Peter Mutharika and the country's electoral commission are reported to have formally filed an appeal against a court ruling that overturned the incumbent president’s win last year.

Malawi went for Presidential elections on 21 May 2019 in which the Malawi electoral commission declared President Mutharika as the winner. The Southern African Development Community (SADC) Electoral Observer Mission also endorsed the election, even going further to extol the professionalism and the improvement in administrative processes by the commission.

Contrary to this, 2 candidates declared as the losers in the polls alleged that there had been widespread irregularities in the polls which compromised the credibility of the electoral process and subsequently the outcome of that process. They then lodged a petition in the Malawi Constitutional Court to have the result of the polls overturned.

On the 3rd of February, the Constitutional Court delivered its judgment. It concurred with the petitioners that there had been irregularities in the electoral process; citing the use of correction fluid – tippex – on tally sheets, the Malawi Electoral Commission’s declaration of results using tally sheets that were not verified by auditors and the commission’s failure to conduct the elections in accordance to electoral laws. The court therefore concluded that the integrity and the credibility of the results were so compromised that they could not be trusted. The judges then ruled that President Mutharika was not duly elected and a new election had to be held within 150 days.

Key figures


Share of vote by Peter Mutharika in 2019 election results


Number of votes by which Mutharika was declared winner in 2019 elections

80 yrs

Age of Mutharika in 2020

The judges of the Constitutional Court of Malawi must be commended for taking the bold and brave decision to overturn an electoral result that threatened to subvert the will of the people. This is especially so in the context of rumours that the judges had been offered a bribe of USD 20million so that they could rule in favour of the declared winner. They chose to uphold the people’s voices over a corrupt relationship with shameless leaders. They chose professionalism and integrity over expediency. They have set a good example of integrity and institutional independence which the rest of the sub-region should emulate.

As stated above, the SADC Electoral Observer Mission that monitored the elections produced a preliminary report that praised the handling of the elections by the Malawi Electoral Commission. The report stated that ‘in conclusion, the SADC Electoral Observation Mission observed that the pre-election and voting phases of the 2019 Tripartite Elections were conducted in a generally peaceful atmosphere.’ And that ‘the Malawi Electoral Commission conducted itself professionally through its improved administrative procedures, and in line with the electoral law and Constitution of the Republic of Malawi.’

In a statement made on 4th February, the SADC commended the Constitutional Court for upholding the Malawian Constitution, and the electoral law in the conduct of the petition. The body urged all stakeholders to respect the judgment of the Constitutional Court, and maintain peace and tranquillity, whilst the relevant national institutions prepare for fresh elections.

It is an understatement that the Constitutional Court ruling leaves the integrity of SADC observer missions in tatters. What shall they say then about their own conclusions? What are the conclusions that can be drawn from all the other elections that they have endorsed, especially the disputed elections in Zimbabwe in 2018 and what were general considered to be sham elections in Eswatini in the same year? SADC electoral observer missions will have a tough task convincing the citizens of the sub-region that they are sincere in promoting and upholding their democratic rights.

It is therefore disheartening to learn that President Mutharika, the candidate who had been fraudulently declared the winner, has appealed the Constitutional Court’s judgement in the Supreme Court of Appeal, supported by the electoral commission chair Jane Ansah. While it may be the incumbent’s constitutional right to take this legal route, he should have shame that he is superintending over this mess and that he has been caught out. Instead he is alleging that the Constitutional Court’s judgement is a miscarriage of justice and the death of democracy in Malawi. It is not clear what he hopes to achieve by launching this appeal as he is claiming that he and his team will not try to stop the holding of fresh elections.

Malawian citizens should be commended for maintaining peace throughout this saga, even as they remained resolute in their demands for justice. President Mutharika should just allow for the organisation of a fresh and properly run election. And we wish and hope that the democratic will of the people of Malawi shall prevail and be respected this time around.