In order to assist the courts to address these questions fairly, there is a need for jurisprudential clarity on the appropriate standard of proof which petitioners must satisfy in order to convince the court to entertain their claims, and the appropriate legal test for nullifying election results.
The judgment of the Supreme Court of Malawi, in the recent case of Peter Mutharika v Lazarus Chakwera and Saulos Chilima is acclaimed for being the first decision by a court in the region to nullify the results of a presidential election.
In arriving at its verdict, the Supreme Court has made some findings and pronouncements which introduce a fresh and positive dimension to the development of the jurisprudence on election petitions in the Sadc, regarding the legal test for nullifying the results of a presidential election as well as the standard of proof.
Thus, the findings and legal propositions made by the Supreme Court of Malawi on the standard of proof and the legal test for nullifying presidential election results, are likely to influence the adjudication of future presidential election petitions in a number of Sadc countries.
Prior to the Supreme Court’s decision in Mutharika v Chakwera and Chilima, apex courts in the region, including in Malawi itself, had endorsed the quantitative test as the only appropriate approach to apply when dealing with petitions involving presidential election results.
