Legal scholars bemoan delayed electoral cases

Malawi's legal landscape is currently grappling with significant delays in the adjudication of parliamentary election petitions stemming from the September 16, 2025 General Election. Ten months post-election, seven out of 229 constituency petitions remain unresolved, a situation legal scholars contend constitutes a breach of the law and undermines the principles of electoral justice. This protracted delay contrasts sharply with the expedited resolution of the 2019 presidential election petition, raising concerns about judicial capacity, consistency, and the legitimacy of parliamentary representation. The article explores the statutory framework governing election petitions in Malawi, analyses the implications of these delays, and considers the broader impact on democratic governance and the rule of law.

Ten months after the September 16, 2025 General Election, Malawi's judiciary faces mounting criticism over the prolonged delay in resolving parliamentary election petitions. With seven out of 229 constituency cases still pending, legal scholars and practitioners are raising alarms, asserting that these delays fundamentally breach the spirit and letter of the law governing electoral disputes. This situation presents a critical challenge to Malawi's democratic integrity, as duly elected Members of Parliament (MPs) continue to serve while their legitimacy remains under judicial scrutiny.

The expeditious resolution of electoral disputes is a cornerstone of democratic governance, ensuring that the will of the people is accurately reflected and that elected officials hold office with unquestionable legitimacy. The current backlog in Malawi's High Court and Supreme Court of Appeal, particularly concerning parliamentary seats, threatens to erode public confidence in the electoral process and the judiciary's capacity to deliver timely justice. This article delves into the legal framework surrounding election petitions in Malawi, examines the implications of these delays, and highlights the imperative for a more efficient and consistent approach to electoral dispute resolution.

The legal framework for elections in Malawi is primarily enshrined in the Constitution of the Republic of Malawi and the Presidential, Parliamentary and Local Government Elections Act (PPLGEA) No. 10 of 2023, which superseded the earlier Parliamentary and Presidential Elections Act (PPEA). The Constitution, under Section 75, establishes the Electoral Commission and outlines its duties, including the determination of electoral petitions and complaints. However, the PPLGEA vests the High Court with the primary jurisdiction to hear election petitions concerning undue returns or undue elections, as stipulated in Sections 100 and 101.

Historically, Malawi's electoral jurisprudence has seen significant developments, most notably with the landmark 2020 Supreme Court of Appeal decision in *Peter Mutharika and Electoral Commission v Saulos Chilima and Lazarus Chakwera* (Constitutional Appeal No. 1 of 2020 (MSCA)), which upheld the High Court's nullification of the 2019 presidential election. This case underscored the judiciary's critical role in safeguarding electoral integrity and emphasized the need for timely resolution, with the High Court ordering a fresh presidential election within 150 days. While the PPLGEA stipulates timelines for the Malawi Electoral Commission (MEC) to declare results (e.g., eight days for presidential results), specific statutory timelines for the *judicial resolution* of parliamentary election petitions are less explicitly defined, creating a potential lacuna that contributes to the current delays.

The current delay in resolving parliamentary election petitions from the September 2025 General Election, with seven cases outstanding ten months later, stands in stark contrast to the urgency demonstrated in the 2019 presidential election petition. The *Chilima* case, which saw the High Court and subsequently the Supreme Court of Appeal act with remarkable speed to nullify a presidential election and order a rerun, set a precedent for judicial expediency in electoral matters. The Supreme Court in that case even opined that fresh elections for a vacancy should ideally be held within 60 days, highlighting the constitutional imperative for swift resolution.

However, this judicial alacrity appears not to have consistently translated to parliamentary petitions. Recent High Court decisions, such as *Khembo vs MEC & Onsewa* (November 26, 2025) and *James Makhumula vs Malawi Electoral Commission and Hon. Ireen Mambala* (Electoral Petition No. 69 of 2025), show that some petitions are being heard and dismissed. Yet, the existence of 23 pending petitions out of 95 registered, as reported in December 2025, and the current seven unresolved cases ten months after the election, indicates a systemic challenge. The recent overturning of Francesca Theula Masamba's win in Mangochi East Constituency by the Supreme Court of Appeal in July 2026, after the High Court had upheld it in February 2026, further illustrates the multi-layered and time-consuming nature of these disputes.

The reasons for these delays are multifaceted. They may include the sheer volume and complexity of the petitions, which often involve extensive evidence and witness testimonies, as seen in cases alleging irregularities like unsigned polling station records or discrepancies in vote tallies. Judicial capacity, including the availability of judges and court resources, could also be a contributing factor. The absence of strict statutory timelines for the final adjudication of parliamentary petitions, unlike the more defined periods for presidential re-runs, may inadvertently contribute to a less urgent approach. This situation creates uncertainty for both petitioners and declared winners, potentially undermining public trust in the electoral system and the legitimacy of the legislative body. The *Blessings Steven Chaguza v Brian Khumbeni and The Malawi Electoral Commission* (MSCA Civil Application No. 9 of 2026) case, involving an application for enlargement of time to appeal, further highlights procedural complexities that can prolong the resolution process.

The protracted delays in resolving parliamentary election petitions in Malawi pose a significant threat to the country's democratic health and the principle of electoral justice. While the Malawian judiciary has demonstrated its commitment to upholding electoral integrity in high-profile presidential cases, the current backlog in parliamentary disputes suggests a need for re-evaluation of the mechanisms and timelines for lower-level electoral litigation. The continued service of MPs whose electoral victories are under judicial challenge creates an environment of uncertainty and can diminish public confidence in the legitimacy of their representation.

Practitioners involved in electoral law must continue to advocate for clear, constitutionally mandated timelines for the adjudication of all election petitions, not just presidential ones. There is a clear imperative for the judiciary to streamline its processes, potentially through dedicated electoral courts or specialized divisions, to ensure that all electoral disputes are resolved expeditiously. Furthermore, legislative reforms may be necessary to introduce stricter statutory deadlines for the final determination of parliamentary petitions, aligning them with the spirit of urgency demonstrated in the *Chilima* judgment. The integrity of Malawi's democratic institutions hinges on the timely and impartial resolution of all electoral challenges, ensuring that justice is not only done but is seen to be done within a reasonable timeframe.