The High Court has freed 25 prisoners on death row, The Nation has learnt.
The move follows the court’s decision to rehear homicide cases at its Zomba District Registry since February 2015 through a Death Row Inmates Resentencing Project facilitated by taxpayer-funded rights watchdog Malawi Human Rights Commission (MHRC).
The rehearing exercise follows a 2011 review of Section 210 of the Penal Code that declared mandatory imposition of death penalty unconstitutional after some people argued that they could not be on death row as Malawi did not provide the ultimate sentence.
Originally, the section provided that “any person convicted of murder shall be sentenced to death”, meaning it did not allow the court to exercise discretion in sentencing a murder convict.
MHRC director of civil and political rights Peter Chisi on Tuesday said in an interview that in the past six months, 58 prisoners have had their custodial sentences reviewed, resulting in 25 convicts being set free.
“The key outcomes are that in 12 of these cases, the judgement is currently reserved or hearing has been adjourned for further consideration at a later date.
“For the other 46 prisoners, the High Court, after receiving evidence from both prosecution and defence lawyers, has meted out new sentences, guided by the 2007 Constitutional Court decision… which outlawed the mandatory imposition of the death penalty,” he said in an e-mailed response.
Chisi said the liberated 25 convicts were not necessarily found innocent after their resentencing, but had already served the length of their custodial sentences.
He said: “In some of the cases, the prisoners have been released because they have already served the length of sentence the High Court has deemed appropriate in the circumstances.”
There are about 110 death row inmates awaiting resentencing, according to MHRC.
In 2011, Section 210 was amended allowing the courts to exercise discretion in sentencing a murder convict to take into account mitigating and aggravating factors to consider peculiar circumstances of the case to decide whether to impose a lower sentence.
After the amendment of the section, MHRC, in conjunction with other local and international organisations, facilitated the Death Row Inmates Resentencing Project with financing from Tilitonse Fund—the multi–donor pooled grant-making facility supporting more accountable, responsive and inclusive governance in Malawi through grants to projects led by civil society and other like-minded interest groups.
The resentencing project is expected to phase out within the next 12 months.
Other project partners include the Office of the Director of Public Prosecutions, Legal Aid Bureau, Malawi Law Society, the Faculty of Law at Chancellor College, Malawi Prisons Service, Paralegal Advisory Services Institute (Pasi) and Centre for Human Rights, Education and Assistance (Chreaa).