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20 years later, death penalty still alive

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TEMBO—We have moved from punishment to correctional orientation

Twenty years and four days later, those that directed, on October 10 2002, that the world should be commemorating the fight against the death penalty are still shouting and canvassing for support— with mixed outcomes.

According to World Population Review, there has been some relative success, although, for the most part, those who are for the death penalty have counted on their numerical advantage to say no to anti-death penalty advocates’ suggestions.

In other countries, however, leaders are taking a softer stance on the death penalty. Between December last year and January 2022, two countries, namely Kazakhstan and Papua New Guinea, outlawed the death penalty, otherwise known as capital punishment.

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Laws outlawing the death penalty in Kazakhstan and Papua New Guinea went into effect on December 29 2021 and January 22 2022, respectively.

As for Malawi, there has been much talk, without requisite action.

If anything, the action has been in the form of activities marking commemoration of the fight against the death penalty, which Malawi has religiously observed on October 10 since the year 2002.

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Other than organising such commemorations, the closer Malawi has come to identifying with efforts aimed at dealing away with the death penalty is being party to a United Nations (UN) resolution that indicated that some of the forms of punishment used in some member states are outright “degrading”.

In 2019, marking the first time in history, the UN Human Rights Committee suggested that certain methods of execution constitute torture or cruel, inhumane or degrading treatment or punishment.

And, since then, Malawi has been taking advantage of the day to highlight the link between the use of the death penalty, torture and cruel, inhumane or degrading treatment or punishment.

This year, when it was the turn of October 10 on the calendar, leaders of a consortium of organisations led by Reprieve decided to visit Maula Prison, where some inmates were sentenced to death.

To be at Maula, as an inmate, is to resign to fate, more so because the facility was designed to offer shelter to 1,400 inmates.

However, it holds inmates double that number.

Justice Minister Titus Mvalo took part in activities marking World Day Against the Death Penalty, which was commemorated under the theme ‘Death Penalty: A Road Paved with Torture’.

In line with that theme, Mvalo did not beat about the bush. Instead, he described the death penalty as grotesque and barbaric, adding that the irreversibility of the punishment is unforgivable because mistakes happen.

In his keynote address, Mvalo emphasised that even with the death penalty in Malawi’s Penal Code, there is no deterrence to crimes that attract that sentence.

“I should take this opportunity and remind you that not only has His Excellency the State President Dr Lazarus McCathy Chakwera not signed any death warrant since he took office, but he has rather taken a step further in ensuring that life of those on the death row will not one day be taken away by commuting their death sentences to life,” Mvalo said.

He said that was a huge step as the debate on the abolition of the death sentence rages on in Malawi.

“Once placed under a death sentence, the person so sentenced virtually stops to live. He is physically alive yes, but mentally and psychologically tormented. He is a living dead person,” Mvalo said.

In short, Mvalo emphasised, the death penalty is a form of human rights abuse, saying, once an individual has been sentenced to death, “everything ceases to be of interest to him, everything becomes meaningless and this gets worse when he is finally placed in his death cell at the prison. That becomes torture and he lives with that torture of anticipation of execution day and night every day”.

The deliberations clearly indicated that torture is inherent in the death penalty process, a process that is internationally permissible, albeit growing unpopular and fading.

Those who spoke at the event questioned the compatibility of the death penalty with the prohibition on the use of torture or cruel inhumane or degrading treatment and punishment under international law and Malawi’s Constitution which, under Section 19(3), prohibits the exacting of cruel or inhumane and degrading treatment or punishment.

Africa is ahead of the international curve on this point. It was revealed that the African Commission declared that hanging constitutes torture or cruel, inhumane or degrading treatment and punishment.

This, in effect, put into question Malawi’s method of executing the death sentence, which is death by hanging.

Interestingly, Malawian courts have routinely acknowledged the torture inherent in the death penalty and in the conditions of detention on death row.

The speakers noted that the progressive interpretations are not without foundation.

The types of torture and other ill-treatment experienced during the long stay on death row are varied and numerous: physical or psychological torture has been applied in many cases during questioning to force confessions to capital crimes.

It became common knowledge at the Maula event that the death row phenomenon contributes to the long-term psychological decline of a person’s health while harsh death row living conditions further contribute to physical deterioration, mental anguish of anticipating execution once a date has been set.

Methods of execution also cause exceptional pain, observers said, apart from the fact that the death penalty further inflicts untold suffering on family members and those with a close relationship with the executed person.

And so, the death penalty was proven to be a path paved with torture from the moment of its declaration.

Meanwhile, Maula Prison Station Officer, Geoffrey Tembo, has urged the ministers of Justice, Finance, other government officials and stakeholders to push for the abolition of the death penalty, as their institution is aimed at correction.

“We have moved from punishment to correctional orientation; as such, the death penalty does not make sense. On torture, our facility is too crowded and we have no food to feed the inmates; this is torture,” he said.

He hoped that the government will increase penitentiary institutions’ budgets on food.

Tembo urged the courts to only send to prison those that deserve imprisonment and punish the rest with community service or suspended sentences.

Speaking at the event, Young Muhamba, President of Association of Persons with Albinism (Apam), said the association observes the need for real proactive solutions from government and all stakeholders, which will prevent people from killing other people, as opposed to reactive interventions.

“We want good housing, great security, sensitisation both to us as pertaining to our rights and responsibilities, but also to the public to eliminate the misconceptions that fuel our killings and hunting of our body parts,” he said.

He added that Apam believes that everyone has the right to life, thus an innocent person with albinism has a right to life, and also those that breach the law.

“We want you to save us from being killed, please, and not kill on our behalf,” he said.

Reprieve Fellow Alexious Kamangila, who is also a lecturer at the University of Malawi, stated that the report by Parliament following national consultations on the death penalty reveals that engagement on the issue is productive, as the majority of the consulted people oppose the death sentence.

“An honest engagement on the death penalty ends in supporting abolition and many Malawians are now supporting the removal of the death penalty from our statutes. Once people realise the discriminatory implementation of the penalty on the basis of [economic] status and its tortuousness, there is overwhelming support to abolish it,” he said.

Largely, Kamangila said, its [the death penalty’s] irreversibility— conceiving to the reality that mistakes have happened, are happening and will happen— challenges the whole concept of justice.

“The death penalty will be abolished, and this is the right time to abolish the death penalty in Malawi,” he stressed.

Today, 145 states are abolitionists in law or in practice, which represents more than two thirds of the world’s countries.

Comparatively, 20 years ago, only 111 countries were abolitionists in law or in practice.

It is, therefore, undeniable that abolition of the death penalty has continued to gain ground around the world.

In Africa, 26 countries have abolished the death penalty in law.

Fourteen, including Malawi, are applying a long-term moratorium on executions while only 15 retain capital punishment.

Malawi is particularly motivated by the recent news of Equatorial Guinea abolishing the death penalty and intentions by Zambia and Ghana to abolish the death penalty.

However, hoping that something positive will happen is one thing, taking the positive steps to make it happen yet another.

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