The nullification of the 2019 presidentail election in Malawi. A Judicial Coup d’État?

Abstract

In February 2020, the High Court of Malawi nullified the May 2019 presidential election and ordered a fresh election. This judgment was later confirmed by the Malawi Supreme Court of Appeal. These two judgments are monumental and unprecedented because this was only the second time a presidential election had been judicially nullified in Africa. The fresh presidential election also scored a first in Africa when it was won by an opposition candidate. These judgments carved new terrain for electoral law in Malawi and divided legal and political opinion. This paper offers a critical analysis of the two judgments. It focuses on the court’s treatment of the burden and standard of proof in electoral disputes; the interpretation of ‘majority’ to mean 50% + 1; and the effect of the nullification of the 2019 presidential election and consequential transitional issues. Overall, the paper concludes that while the outcome of the litigation garnered plaudits, the reasoning in the two judgments is not wholly persuasive.