Malawi becomes the 22nd country in Africa to abolish capital punishment after the Supreme Court of Appeal on Wednesday declared it unconstitutional.
The country’s highest court also ordered sentences of all convicts facing execution to be reviewed at the High Court. There are currently 27 convicts on death row.
The court further declared all offences that carry a maximum of death penalty in the statute to now read as having a maximum penalty of life imprisonment.
The ruling follows an appeal by Charles Khoviwa, one of the nine convicts on death row that were denied a right to a resentencing hearing after the High Court declared mandatory death sentence as unconstitutional in the Kafantayeni and others versus Attorney General (AG) case in 2007.
As a result of the Kafantayeni decision, a coalition of stakeholders created the Malawi Resentencing Project in 2014 to investigate and present mitigating evidence in the mandatory death penalty cases and ensure the sentencing hearings met international fair trial standards.
Of the 169 prisoners who were eligible for a sentence rehearing through the project, 156 received reduced sentences, none was resentenced to death and as of May 2019, a total of 142 former death row prisoners had been released after serving their reduced sentences.
In their 71-page judgement, eight of the nine justices of Appeal hearing the matter unanimously granted the appeal and allowed resentencing hearing while only one dismissed it.
The eight justices held that the death sentence of the 27 people currently on death row was unconstitutional and must be returned to the High Court to undergo retrial of their cases.
Reads part of the judgement: “This court under Section 23 of the Legal Aid Act recommends to the director of the Legal Aid Bureau that legal aid be granted to all who were ordered for a sentence rehearing.”
Further, the court ordered the Legal Aid Bureau to include in the legal aid an urgent and immediate application for the nine people who were denied a right to a resentencing hearing to be released on bail with or without a bond.
“The death penalty is unconstitutional… Courts are therefore likely to pass a prison term of years. Those who have served long periods of their lives or long sentences are likely to get shorter terms or immediate release,” reads the judgement.
There was no immediate comment from the Legal Aid Bureau, but one of the lawyers who represented Malawi Law Society in the appeal case, Ian Twea, described the declaration as a bonus.
“It is something we were not expecting will happen in this day, especially because one would expect it must involve some vigorous and protracted campaigning and lobbying the Legislature, the Executive, the faith community and traditional authorities,” he said.
On his part, abolitionist and social justice activist Alexious Kamangila described the judgement as “a landmark and careful decision, rooted in the Malawi’s Constitution.”
He said: “The declaration of the unconstitutionality of the death penalty was only a matter of time because the same right to life granted by Section 16 and declared unlimited under Section 44, was not only limited but completely removed by the Penal Code, and the provision of the section was rendering the same constitutional.”
Also commenting on the judgement, Senior Chief Kawinga of Machinga welcomed the court’s decision, arguing that when a person “commits a crime he must be punished and not condemned to death”.
“It is a longed-for judgement because even the word of God is clear on killing of fellow human beings. So the court’s declaration is welcome,” he said.
Centre for Human Rights and Rehabilitation and Youth and Society have also welcomed the landmark ruling.
In a statement jointly signed by executive directors Michael Kaiyatsa and Charles Kajoloweka respectively, the civil society organisations described the ruling as a step towards total abolition of death penalty.
Reads part of the statement: “As human rights organisations, we entirely agree with the court’s observation that death penalty is unconstitutional and a violation of the right to life, right to dignity, and the right not to be subjected to inhumane and degrading punishment or treatment.”
However, despite death penalty being in the statutes, the country’s presidents in the multiparty era refused to sign for death warrant.
Former president Bakili Muluzi, who ruled the country from 1994 to 2004, is on record having refused to sign for it.
His successors, Bingu wa Mutharika, Joyce Banda and Peter Mutharika did also not sign a death warrant. So too the incumbent Lazarus Chakwera.
A death row inmate, who was released after his sentence was retried having spent 23 years in prison, told our sister paper The Nation in 2018, he was taken to the gallows three times alongside his friends for execution, but survived because the executor got tired.
Malawi has now joined South Africa and Mozambique as leaders of the death penalty abolition movement in Southern and Eastern Africa.
More than 30 countries in Africa have the death penalty in their books, but just half have carried out execution in recent years.