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Death knell for the death penalty?

Two landmark cases in Malawi – one asserting the right to life as ‘the mother of all rights’; the other declaring the mandatory death penalty unconstitutional – appear to have announced the death knell for the death penalty there. Lindiwe Sibande reports.

Less than a year after winning the prestigious Chatham House Prize in recognition of the historic decision to overturn Malawi’s controversial 2019 tripartite elections (the award cited the “courage and independence” of Malawi’s constitutional court judges “in the defence of democracy”), the Malawian judiciary has made international headlines, once again, by declaring the death penalty there unconstitutional.

In the landmark case of Charles Khoviwa v The Republic (MSCA Miscellaneous Criminal Appeal No 12 of 2017; [2021] MWSC 3, 28 April 2021), the Supreme Court of Appeal held that the right to life was “the mother of all rights”. The court further held that “without the right to life, other rights do not exist” and, therefore, “the death penalty not only negates; it abolishes the right”.

Although the death penalty has remained on the statute books since Malawi gained its independence from the British in 1964, a de facto moratorium was introduced in 2007. Malawi has sat midway between countries that actually enforce the death penalty, and those that have abolished it outright.

Although the Khoviwa decision certainly tips the scales further towards abolition, it must be considered within particular and significant sociopolitical realities.

Establishing legal precedent

Although the Khoviwa case is the first to declare the death penalty unconstitutional, the case is the latest, and most crucial, in a line of landmark cases that establish legal precedent on the death penalty in Malawi.

In the 2007 case of Francis Kafantayeni and others v the Attorney General (Constitutional Case No 12 of 2005; [2007] MWHC 1), the constitutionality of the mandatory death penalty for capital offences was brought into question. In declaring the mandatory death penalty unconstitutional, the court ordered the rehearing of cases involving those who had been given the death penalty.

An initiative called the ‘Resentencing Project’ took these cases. It comprised a coalition of criminal justice stakeholders, as well as local and international human-rights organisations, and led to the immediate release of 112 inmates. Many more are still being released after serving their custodial sentences, according to recent reports by the Malawi Human Rights Commission (see ‘MHRC statement on abolition of death penalty in Malawi’ at www.mhrcmw.org).

Potential shift

The resentencing project was a promising indication of a potential shift in judicial precedent on the death penalty. Nonetheless, under the Malawian Penal Code, sections 25(a) and 26, the death penalty remained a legal reality and could still be given as a sentence for particular crimes.

The 2021 Khoviwa decision now holds that the above-mentioned sections of the Penal Code must be read to mean the maximum prison sentence – life imprisonment. This decision does not fall far from practice, however.

Although the death penalty remained legal after the Kafantayeni ruling, it was not carried out in the 15 years preceding the ruling nor during the 14 years afterwards. According to Amnesty International, the last execution was carried out in 1992, when 12 people were hanged.

After the establishment of multi-party democracy in Malawi in 1994, all executions came to a halt, arguably as a result of changes in the political and judicial landscapes. The new constitution did retain the death penalty as a viable sentencing option for particular crimes.

Yet, since 1994, no president has signed a death warrant, despite its continued use in sentencing. Malawian death sentences could more accurately be described as sentences to indefinite detention. So why keep using the death penalty, even though there is no political will to actually enforce it?

Death penalty and politics

The death penalty may have been left as an option under the law to appease the public in instances where certain crimes or cases have aroused public outcry. In several cases, various actors have called for stricter sentencing and invoked the death penalty as the ultimate punitive sentence towards deterrence.

For instance, between 2014 and 2019, the United Nations reported 150 cases of killings, attacks, and other human-rights violations against persons with albinism in Malawi (see OHCHR, ‘Malawi: UN experts urge action over albinism ‘atrocities’ in run-up to elections’).

Reports of killings, in particular, gained media attention and sparked various protests where a number of activists attacked Malawian courts for giving lenient sentences to those involved in kidnapping, violence, and the killing of persons with albinism.

In May 2019, the High Court imposed the death penalty in the case of R v Mikaele [(Sentence) (Homicide Case No 238 of 2018); [2019] MWHC 50 (3 May 2019)] on a 28-year-old man convicted of murdering a person with albinism.

Later in the same year, three people convicted of killing a person with albinism were also handed down the death penalty by the same court. The judge who imposed the sentence remarked that this was to act as a deterrent against future attacks and homicides (Al Jazeera, ‘Malawi: three sentenced to death over killing of person with albinism’).

Not alone

Malawi is not the only country that has utilised the death penalty in this way. In 2015, four people were sentenced to death in Tanzania after being found guilty of murdering a woman with albinism (BBC News, ‘Tanzania albino killers sentenced to death’).

Although there is no official data on public attitudes towards the death penalty, calls for stricter sentencing for certain crimes from the public may be an indication that public attitudes tip more in favour of retaining the death penalty than abolishing it.

For example, in a recent statement, the Malawi Human Rights Commission commended “stiffer punishments [for persons convicted] of sexual offences” (see ‘A statement to commend progressive judgments on cases of defilement and call to further action’ at www.mhrcmw.org).

The Khoviwa ruling exists against a backdrop of precedent, legal, political, as well as social pressures. Activism centred around the abolition of the death penalty has been a concerted effort between both local and international actors in Malawi. There is more to do to abolish the death penalty, legally – it must be removed from the statute books and more resentencing hearings need to take place akin to the Kafantayeni case, so that the cases of those who are currently on death row are reviewed.

That said, it would be hard to envisage a way that either the courts or the executive could row back from the decision in Khoviwa – that the death penalty violates the right to life. Furthermore, the President of Malawi, Dr Lazarus Chakwera, said in a statement in the aftermath of the decision that “the rule of law must be upheld and the interpretation of the law by the court must be respected”.

Overall, the situation is quite promising, however, the practical implications of the case – given the political and social realities outlined, especially the use of harsh sentences for public appeasement – remain to be seen.

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