James Makhumula v Malawi Electoral Commission and Another (Being Election Petition No. 69 of 2025 before the High Court, Civil Division; MSCA CIVIL APPEAL No.6 of 2026) [2026] MWSC 1 (28 April 2026)

REPUBLIC OF MALAWI IN THE SUPREME COTIRT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL No. 06 OF 2026 (Being an Election Petition No. 69 of 2025 before the High Court, Civil Division, Lilongwe Registry) BEWEEN: JAMES MAKHT]MULA AND MALAWI ELECTORAL COMMISSION IREENMAMBALA APPELLANT (Mzikamanda SC CJ, Chikopa SC DCJ; Kapanda, SC JA; Potani, SC JA; IC Kamanga SC lA; Mkandawire SC IA; Madise SC JA; Mbvundula SC lA, nyaKaunda Kamanga SC JA) Having carefully considered the record of appeal, the judgment of the court below, the grounds ofappeal, and the submissions ofcounsel, this Court is satisfied that the appeal succeeds. The central issue in this appeal is whether the leamed Judge properly directed herself on the evidential burden in relation to the electoral documents tendered by the Appellant, and in particular, whether the burden lay on the Appellant to prove their 1 N.) r lST RESPONDENT 2ND RESPONDENT ORDER authenticity, or on the 1$ Respondent, the Malawi Electoral Commission, to account for them as the statutory duty bearer. In our view, the Appellant tendered electoral records, including Form 18B, which are statutory documents generated, controlled, and issued by the 1$ Respondent in the conduct ofelections. Once such documents were produced and bore the apparent features of oflicial electoral records, they established a prima facie case of irregularities and raised a presumption of authenticity. In those circumstances, the evidential burden shifted to the I't Respondent to challenge the authenticity ofthe documents, to explain any discrepancies therein, or to demonstrate that the documents were not genuine or had been tampered with. The ls Respondent failed to discharge that burden. The leamed Judge therefore misdirected herself in placing the burden on the Appellant to prove the veracity and admissibility of documents which, by their nature, fell within the peculiar knowledge and control of the I't Respondent. It is not open to the l$ Respondent to assert that such documents are official, while at the same time disclaiming responsibility for explaining their contents or inconsistencies. In our view, the Appellant adduced evidence disclosing, at the very least, a prima facie case of electoral irregularities, including non-compliance with mandatory statutory requirements relating to the recording and authentication of results. These included, among others, the failure to record results in both figures and words and the, absence of signatures on prescribed electoral forms. It is our finding that ther I't Respondent failed to discharge this burden. The explanations advanced werc speculative and fell short ofthe standard required ofa constitutional body entrusted with ensuring compliance with electoral laws. In the circumstances, the irregularities identified go to the root of the electoral process and undermine its integrity. The election cannot therefore be said to have been conducted in accordance with the law. The appeal is accordingly allowed. Orders Consequently it is hereby qrdered as follows: The appeal is allowed. The judgment ofthe High Court is set aside in its entirety. It is hereby declared, pursuant to section lOl(3xb) of the Presidential, Parliamentary and Local Govemment Elections Act, 2023 that the 2nd 2 'l 2 J ' Respondent was not duly elected as Member of Parliament for Balaka Mulunguzi Constituency. 4. The Malawi Electoral Commission shall conduct a fresh election for the said constituency in accordance with the law. 5. The Court shall circulate its full reasoned judgment within ninety (90) days from the date hereof. 6. The Appellant shall have the costs of this appeal and of the proceedings in the court below. DATED and DELIVf,RED at B this 28s day of Apil,2026- ASSISTANT REGISTRAR MALAWI SUPREME COURT OF APPEAL I certifr that this is the order ofthe C JA _r.\ I J