The Supreme Court of Appeal has ruled that the term ‘Majority of Electorate’ in Section 80 (2) of the Constitution means the winner of elections must get 50 percent plus one of the votes.
The court today delivered the unanimous decision of the seven judges on the panel – Chief Justice Andrew Nyirenda, Justice Rezine Mzikamanda, Justice Edward Twea, Justice Anaclet Chipeta, Justice Lovemore Chikopa, Justice Frank Edgar Kapanda and Justice Anthony Kamanga.
On February 3, the Constitutional Court which nullified the 2019 elections ruled that any candidate to be duly elected to the office of president of the republic, such person must secure a minimum of 50 percent plus one vote of the total valid votes cast during the presidential elections.
Malawi Electoral Commission and President Peter Mutharika appealed against the ruling of the Constitutional Court and included the issue of the meaning of ‘majority of the electorate’ as a ground of appeal.
Section 80 (2) of the Constitution of Malawi states that: “The President shall be elected by a majority of the electorate through direct, universal and equal suffrage.”
In court last month, the appellants argued that the issue of interpretation of the section was already addressed by the Supreme Court in previous cases hence the Constitutional Court could not overrule the decision of a higher court.
They also argued that the Constitutional Court’s interpretation was tantamount to judicial legislation.
In its ruling on Friday, the Supreme Court said taking ‘majority of electorate’ to mean that the winner should obtain highest number of votes creates problems in a situation where there is a large number of candidates and the winner only gets 10 percent of the votes cast.
The Supreme Court argued that such a scenario would undermine the principle of majority rule in democratic governance and raise question of legitimacy of an elected president.
“We are in no doubt that the correct meaning to be ascribed to the word ‘majority’ in section 80 (2) of the Constitution is 50+1 of the votes at the polls,” the court said.
It added that the court has departed from previous interpretations provided by the Supreme Court on the matter and the current interpretation will not lead to absurdity in presidential elections.
“Our view is that, such an interpretation [when Majority of Electorates under section 80 (2) of Constitution means 50+1], safeguards principles of accountability, transparency, honesty, integrity in the conduct of elections to the high office of the president.
“It will guard against the manipulation of votes and creation of numerous surrogate parties or political contenders designed to spread votes to benefit a particular contender at the expense of a strong contender,” the court ruled.
In its ruling, the Supreme Court also upheld the Constitutional Court’s decision to order fresh presidential elections. The fresh elections will be held on July 2 and will use the 50+1 electoral system.
