The Supreme Court of Appeal has declared that death sentence as a punishment for any crime in Malawi is unconstitutional.
A panel of nine judges, led by Chief Justice Andrew Nyirenda, made the determination in a judgement delivered on Wednesday.
They heard an appeal by Charles Khoviwa who had opposed the High Court’s verdict in which he was sentenced to death after he, together with others, was convicted of murder.
The Supreme Court argues that the death penalty is an abolition of the right to life and that its execution borders on disrespect for human dignity.
Reads part of the 71-page judgement: “The death penalty is unconstitutional. Section 25(a) and section 26 in prescribing death as one of the sentences and section 38(1) for treason, section 63(1) for piracy, 133 for rape, 210 for murder, 217A(2) (a) for genocide and 309(1) and 2 for house breaking and burglary, of the Penal Code must be read as meaning the maximum prison sentence – life imprisonment.
“If life imprisonment becomes the maximum sentence, where it is not mandatory, by fiction, cannot be imposed, reserved as it were for the worst instance of crime.
“Courts, are therefore, likely to pass a prison term of years. Those who have served long periods of their life or long sentences are likely to get shorter terms or immediate release.”
The nine justices of appeal have also held that looking at the circumstances surrounding Khoviwa’s sentencing, the High Court should indeed have had a sentencing rehearing.
They have also ordered the Legal Aid Bureau, the Office of the Attorney General and the Director of Public Prosecutions to address the complexities of convicted felons on the death row.
Malawi Prison Service spokesperson, Chimwemwe Shaba, said he did not have the actual number of convicts on the death row.
Meanwhile, the judgement has received plaudits from activists who have been pushing that it should be outlawed.
Executive Director of the Centre for Human Rights, Education, Advice and Assistance, Victor Mhango, said in an interview yesterday that finally, the highest court on the land has affirmed the need to respect the right to life for everyone, including convicted felons.
“We have been fighting for the abolishment of the death penalty for a long time. The judgement has highlighted that every person has the right to life and that there is no government apparatus that can take away that right,” Mhango said.
Centre for Human Rights and Rehabilitation (CHRR) and Youth and Society (Yas) have also hailed the judgement, describing it as landmark.
“As human rights organisations, we entirely agree with the court’s decision that the death penalty is unconstitutional and a violation of the right to life, the right to dignity and the right not to be subjected to inhumane and degrading punishment or treatment,” reads a statement signed by CHRR and Yas directors Michael Kaiyatsa and Charles Kajoloweka, respectively.
The two organisations have further called on the government to build on the judgement and revisit the death penalty more generally.
“We also call on the Malawi Parliament to amend the country’s criminal law to remove the mandatory aspect of the death penalty,” the statement says.
While confirming the judgement, Registrar of the High Court and Supreme of Appeal Gladys Gondwe said it was in draft form and was yet to be perfected by the time it went public.
In Malawi, a moratorium on the death penalty hanging since 1994 has meant no president ever sanctioned that convicts on the death row should be executed.