Special Commission faults presidential clemency


Special Law Commission on the Review of the Prisons Act has faulted the country’s legal framework for giving too much power to the President or responsible Minister to release a prisoner earlier than expiry of their sentence, saying such a system is prone to abuse.

“The current legal framework gives the President, the Minister of both, too much power to release a prisoner earlier than the expiry of his or her sentence with little or no involvement of the Chief Commissioner for Prisons and his or her staff who work closely with prisoners. Further, it is not clear under what circumstances can the President or the Minister release a prisoner before he or she completes serving his or her sentence. Such a system is prone to abuse,” said Commissioner Clifford Msiska when he presented a paper at a regional consultative workshop yesterday in Mzuzu which was reviewing the 1956 Prisons Act.

In his 13-month time in power President Peter Mutharika has pardoned 1,054 prisoners that included the recently pardoned 268 inmates during the 51st independence celebrations last week.


In his paper Msiska said although there are some provisions in the legislation that permit the President to pardon or the Minister or Commissioner for Prisons to make recommendations for release from prison, the law does not provide for release on parole.

He said early release from prison whether through pardon, stay of execution of sentence, reduction of sentence, grant of permission to be absent from prison and release on licence has its challenges.

“For instance, section 107 (1) of the Prisons Act excludes prisoners sentenced to imprisonment for life to benefit from remission,” observed Msiska.


In Malawi, a convicted prisoner may be allowed to be absent from prison for a specified period or released early on account of the following reasons: good conduct; urgent need to attend to tertiary education; terminal illness; health condition that risks the entire prison management; personal or family among others.

The Constitution makes provision for the release of a prisoner before he or she has fully served his sentence and Section 89 (2) provides to the effect that the President may pardon convicted offenders, grant stays of execution of sentence, reduce sentences or remit sentences.

Msiska further said sections 108, 110 (1) and 120 of the Prisons Act mandate the Commissioner for Prisons and the Minister respectively to make recommendations for early release.

“Unfortunately, these provisions are not adequate because they do not cover all types of early release from prison and the mechanisms for their application raise some concerns,” said Msiska.

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