Death penalty controversy

Supreme Court says it is constitutional

Justice Andrew Nyirenda

The Supreme Court of Appeal has reaffirmed that the death penalty is constitutional in Malawi, clarifying that the question of its legality was not before the court, effectively marking a departure from an earlier determination.

In April this year, it was reported that a panel of nine judges had determined that the death penalty was unconstitutional in the case of Charles Khoviwa versus the Republic, in which Khoviwa appealed a High Court ruling to sentence him to death following his conviction of murder together with others.

However, according to a recent court ruling, a copy of which The Daily Times has seen, Supreme Court justices took turns to disassociate themselves from the purported earlier ruling while the majority of them agreed that Khoviwa’s appeal case could be heard at the Supreme Court of Appeal.


The justices include their chief Andrew Nyirenda, Edward Twea, Rezine Mzikamanda, Anaclet Chipeta, Lovemore Chikopa, Frank Kapanda and Dunstan Mwaungulu, who was also part of the supposed earlier ruling that outlawed the death penalty.

Earlier, when the court ruled that the death sentence was unconstitutional, nine justices had agreed to let Mwaungulu write the judgement, reflecting the decision of all the justices.

However, some of the justices wrote in the latest court ruling that Mwaungulu only stated his personal opinions without reflecting the views of the majority of the justices.


Justice Chipeta, for instance, wrote that Mwaungulu had merely expressed his opinion on the matter.

“As for the majority judgement Honourable Justice of Appeal Mwaungulu SC wrote on our behalf, I only agree with it to the extent that, in some parts of it, it reflected the views and the reasons we, as a majority, agreed upon in the discussion that we held soon after concluding the hearing [of the] appeal.

“For the avoidance of doubt, I, in the majority judgement in question, dissociate myself from any pronouncements Justice Mwaungulu has made and disguised to appear as if they were the opinion of the majority of the Justices of Appeal on this bench when, in fact, they are merely expressions of his personal opinion on such matters,” Chipeta wrote.

He further dissociated himself from the death penalty ruling, indicating that he did not agree with the judgement from, among other points, the point “…where he [Mwaungulu] made the constitutionality of the death penalty in Malawi an issue in the present appeal when it was not an issue, and where he has ended up abolishing the said penalty on the pretext that it is unconstitutional, which was no business of the appeal we had to determine”.

On his part, Justice Mzikamanda said the issue of the constitutionality of the death penalty was not raised.

“The reasons argued by the appellant in support of the grounds of appeal that have succeeded are adequate for us to determine the appeal on them. The record is clear that no party, whether in the court below or this court, raised an issue of the constitutionality of the death penalty,” he wrote.

Justice Twea, who dismissed the appeal by Khoviwa for sentence re-hearing, said there was no precedence in Francis Kafantayeni and others’ cases to determine that the death penalty is unconstitutional while Justice Chikopa simply said that he joined the majority in allowing the appeal – without addressing the issue of the death penalty in the court document in question.

In the Kafantayeni matter, Constitutional Case No. 12 of 2005 [2007], the other plaintiffs were Edson Khwalala, Faison Mawomba Gama, Richard Chipoka, Tony Thobowa and Aron John.

In the case, filed in the High Court of Malawi Principal Registry, action in the proceedings was commenced by Kafantayeni as plaintiff against the Attorney General as defendant after the former was convicted of murder and was under the sentence of death.

He was, on August 11 2002, tried for murder in the High Court sitting at Thyolo District after he was arrested on suspicion that he had tied up his two-year old stepson and buried him alive.

In his defence, Kafantayeni, who was represented by a lawyer, claimed that he could have acted in a state of temporary insanity induced by smoking Indian hemp. On the same day, after pleading guilty, he was convicted of the offence of murder and sentenced, according to law, to the mandatory death penalty.

However, on September 21 2005, he took out an originating summons in the High Court seeking a declaration on a point of law that the mandatory death penalty was unconstitutional and, on the same day, the Chief Justice certified the proceedings for hearing by a panel of three High Court judges.

By a consent order on August 9 2006, the plaintiff was joined by five others, namely, Khwalala, Mawomba Gama, Chikopa, Thobowa and John who had, on separate occasions, also been sentenced to death.

In the latest case involving seven justices, however, Justice Kapanda concurred with the majority by stating that the issue of the constitutionality of the death penalty was not before justices in the Kafantayeni and five others’ case.

Chief Justice Nyirenda, while stating that Khoviwa’s case should be heard by the court, wrote that Justice Mwaungulu had taken the opportunity “…to go beyond what is really on appeal and pronounced on the constitutionality of the death penalty itself. I would not go that far in the context of this appeal”.

But, while stating that the court should indeed re-hear the sentencing of Khoviwa, Mwaungulu maintained that the death penalty is unconstitutional.

Subsequently, the Malawi Law Society (MLS) has explained that this, therefore, means that the death penalty is still active as a form of punishment in Malawi.

“Under the law, it is the majority opinion of the Supreme Court that is binding, authoritative and precedent-setting. And, under the law, judges don’t make law except by deciding on specific questions before them.

“With this clarification of the Khoviwa decision by the majority of the Supreme Court, it means we, as a country, still have the death penalty as part of our laws – as contained in the Penal Code and recognised by Section 16 of the Constitution,” he said.

Malawi Human Rights Commission Director of Civil and Political Rights Peter Chisi said the commission maintains that the death penalty should be abolished.

Meanwhile, the Legal Aid Bureau has said 21 people are still facing the death penalty under its jurisdiction despite the Supreme Court of Appeal abolishing the same.

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