Six civil society organisations (CSOs) have penned President Lazarus Chakwera to remove death penalty from the law as it is torturous to 25 current prisoners on death row.
State House press secretary Anthony Kasunda in a response to a questionnaire yesterday confirmed the President received the letter.
He said: “The President is reviewing the proposed measures in view of the legal framework of Malawi and in consultation with relevant governance institutions to balance the presidential latitude for mercy with constitutional demands for justice.”
The Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director Victor Mhango in an interview on Thursday said they could not say much as they were yet to get a response.
The CSOs, led by Chreaa, addressed their letter dated September 14 2021 to President and his Cabinet.
The other CSOs involved are International Bar Association’s Human Rights Institute, Irish Rule of Law in Malawi, Paralegal Advisory Service Centre (Pasi), Southern Africa Litigation Centre and Reprieve.
But Malawi Law Society (MLS) secretary Chrispin Ngunde said in a written response yesterday that under Section 89(2) of the Constitution, the President may, in consultation with the Advisory Committee on the Granting of Pardon, pardon convicts, grant stay of execution of sentence, reduce sentences or remit sentences.
He said: “Those sentenced to death may benefit under this provision. The exercise of the powers in Section 89(2) of the Constitution is discretionary.
“Therefore, in our view, it is a temporary solution to the CSOs’ concerns. If they are looking for a long-term solution, they should lobby for the amendment of Section 16 of the Constitution and provisions in the Penal Code or provisions of other pieces of legislation that provide for the death penalty.”
The CSOs say after the issuance of the Khoviwa judgement by the Malawi Supreme Court of Appeal on April 28 2021, which appeared to have abolished the death penalty, the same court came up with another perfected judgement on August 18 2021 that clarified that the death penalty was still in the Penal Code.
They say this change in judgement seriously impacted on the 25 prisoners currently on death row in the country.
Reads the letter in part: “To inform the people currently on death row and awaiting trial for capital offences that the death penalty was abolished on 28 April 2021, and then reinstate it four months later, is an exceptionally cruel and unusual punishment and violates the absolute prohibition on inhuman and degrading treatment.
“When they learned of the reinstatement of the death penalty through the perfected judgment, they were heartbroken and terrified.”
The CSOs further argue that those on death row have spent more time in the terrible conditions than any other convict.
They said: “Until 2005, Presidents issued commutations of all death sentenced on an annual or twice-annual basis. This was done routinely as an exercise of the President’s power of mercy. However, since 2005 no commutations of death sentences have been issued.
“This means that there are people living on death row who have been in prison since 2005 or before. Malawi’s Judiciary has been clear that prison conditions in Malawi amount to torture…the condemned section is many times more torturous. Living there for 16 years, in full sight of the gallows, is an exceptionally cruel fate.”
They implore the President to use his discretionary powers not to sign execution of any convict on death row and to assure them that the de facto moratorium will remain in place.
In light of the severe torture those sentenced to death undergone, the CSOs ask the President to commute the sentences of the 25 prisoners on death row to life imprisonment in accordance with Section 89(2) of the Constitution of Malawi, which gives his office the powers to pardon and/or remit convicted offenders.
They add: “[We also ask you] to consider granting pardons to those on death row who are gravely ill as well as to those who have already served very long terms of years, also in accordance with your powers under Section 89(2).
“You direct the DPP (Director of Public Prosecutions) and Legal Aid Bureau to act immediately to ensure that the resentencing hearings that are still allowed under the revised Khoviwa judgment are done expediently, and in accordance with best practice established during the Kafantayeni Resentencing Project for which Malawi rightly received domestic and international acclaim.”
In a controversial Supreme Court judgement by Justice of Appeal Dunstan Mwaungulu on behalf of his colleagues in the case of Charles Khoviwa, the court ruled that the imposition of the death penalty was unconstitutional and contrary to the right to life guaranteed by the Constitution.
The judgment further ordered the immediate re-sentencing of the appellant, Khoviwa, and those in his position who had been subjected to the mandatory death penalty but were denied resentencing hearings during the original resentencing phase in 2017.
But Chief Justice Andrew Nyirenda, justices Frank Kapanda, Rezine Mzikamanda, Anaclet Chipeta, Lovemore Chikopa and Edward Twea later delivered what they called a perfected judgement, distancing themselves from the findings of Mwaungulu and clarifying that death penalty was still part of the laws in Malawi.
Meanwhile, a mental health expert Dr Precious Makiyi has said prisoners on death row are likely to develop post-traumatic disorder.
In an interview yesterday, he said knowing that one is on death row is traumatic and may have a long impact on one.
Said Makiyi: “The problem in Malawi is that we have no mental health services in place. We’re creating a problem we cannot rectify. Prisoners deserve dignity and have a right to die in peace. But in this case, they may die miserable deaths.”
The mental experts said all prisoners require counselling inside the prisons or their release.
A survey by Nation on Sunday last month showed that out of 131 members of Parliament interviewed, 87 legislators, representing 66 percent, would vote for abolishment of the death penalty if the law is brought in the National Assembly.