Lilongwe, January 2, MANA: Nearly a year after he walked out of Zomba Maximum Prison a free man, Byson Kaula, 60, still could not believe he was alive.
Kaula was scheduled to hang inside the prison with other condemned prisoners early one morning. But at the last hour, the executioner removed from the list some names of those he was to hang.
The executioner, said Kaula who was given the mandatory death penalty for murder, was a white man the Malawi Government then used to hire from South Africa to do the job.
The hangman, according to Kaula, decided to remove names of three prisoners from the list of 20 that day when he felt he could not execute all of them, given the time he had.
“He spared three prisoners’ lives and I was among the lucky ones,” the soft-spoken Kaula said. “But we knew our names would be on the list again when he would be back for another execution exercise.”
And as Kaula had predicted, his name appeared on the list of prisoners who were to be executed when the hangman came again to carry out executions.
“There were 17 condemned prisoners who were to be hanged that day, including myself,” he told Mana in an interview eight months after his release. “I knew that this time there would be no escaping death.”
But just before he started his job, the hangman again spared lives of three prisoners for the next execution exercise. Kaula was again among those granted a stay of execution.
The third time the hangman came to carry out executions, Kaula was among 15 condemned prisoners lined up to be hanged. Again like before, he miraculously escaped death after his life was spared.
“I believe I was saved by the grace of God,” said Kaula, a father of six who hails from the village of Khoswe, in the area of Traditional Authority Nsamala in Balaka.
Luck must have again been smiling on Kaula as his death sentence was later commuted to life imprisonment when the country embraced political pluralism.
Today, Kaula is a free man and able to tell the story of his lengthy incarceration, thanks to the Kafantayeni Sentence Rehearing Project the Malawi Human Rights Commission (MHRC) is implementing.
The MHRC is leading a coalition of local stakeholders in implementing the sentence rehearing project with financial assistance from the Tilitonse Fund, a multi-donor pooled, grant-making facility.
Kafantayeni Projec stakeholders include the Director of Public Prosecutions (DPP), Malawi Law Society (MLS), Paralegal Advisory Services Institute (PASI), the Judiciary, and Chancellor College Faculty of Law.
Tilitonse Fund, says its website, supports more accountable, responsive and inclusive governance in Malawi through grants to projects led by civil society and other like-minded interest groups.
The Kafantayeni Project aims at giving a chance to prisoners facing the mandatory death sentence for murder, and those whose sentences were commuted to life imprisonment to be reheard in court.
The resentencing hearings afford the prisoners the opportunity to give mitigating evidence before the court so that a judge may be persuaded to hand down a lesser sentence other than death.
“The MHRC is happy that [through the project] it has been able to make a difference in the lives of condemned prisoners,” Peter Chisi, MHRC director for civil and political rights, said.
Chisi was speaking when he briefed Ruth Sparrey, Technical Services Director for Development Alternatives Incorporated (DAI) who was in the country to appraise some Tilitonse-funded projects.
He said the purpose of the project was not to release all prisoners, but rather to see to it that each prisoner had to receive a trial according to his or her case.
A 2007 High Court ruling (Kafantayeni and others Vs Attorney General) that found the mandatory death penalty unconstitutional started the resentencing hearings.
Francis Kafantayeni was convicted of the murder of his stepson in 2002. His lawyers claimed that he had been acting in a state of temporary insanity, claiming he smoked Indian hemp.
In the High Court that was sitting at Thyolo, the judge reportedly had no choice but to convict Kafantayeni of murder and sentenced him to hang, a mandatory sentence for murder at the time.
But on September 21 2005, Kafantayeni took out an originating summons in the High Court, seeking a declaration on a point of law that the mandatory death sentence was unconstitutional on four grounds.
Among the grounds, he challenged that mandatory death penalty amounted to arbitrary deprivation of the person’s life in violation of Section 16 of the Constitution on the right to life, as its mandatory imposition was without regard to the circumstances of the crime and was thus arbitrary.
He also argued that it was inhuman and degrading, in violation of Section 19 (3) of the Constitution which prohibits torture of any kind or cruel, inhuman and degrading treatment or punishment.
Kafantayeni was later joined by five other prisoners who, on different dates and in different criminal proceedings in the High Court of Malawi, were also convicted of the offence of murder.
Like Kafantayeni, the five other prisoners had also been sentenced to suffer the mandatory death penalty.
Three High Court judges determined that the action of Kafantayeni and the five other plaintiffs had succeeded and set aside the death sentence imposed on each of the plaintiffs.
The High Court ruled that a judge could pass down individual sentences to offenders by taking into account the offender’s background, circumstances of the crime and mental health.
“We make a consequential order of remedy under section 46 (3) of the Constitution for each of the plaintiffs to be brought once more before the High Court for a judge to pass such individual offender and the circumstances of the offence,” three presiding judges ruled after a two-year trial of the case.
Chisi told Malawi News Agency that the Kafantayeni case was taken to court by the MLS, and that the MHRC joined as “a friend of the court.”
“MHRC came in due to human rights issues of right to fair trial, access to justice, etc.,” he said.
Chisi said after the 2007 Kafantayeni ruling, nobody took the inmates to court as the High Court had directed, prompting the MHRC to apply for a grant to the Tilitonse Fund to sponsor the sentence re-hearings.
He said the resentencing of prisoners formerly sentenced to the mandatory penalty of death was crucial to prevent violations of both the Malawi Constitution and international human rights obligations.
“Without funding for such resentencing re-hearings, nearly 200 prisoners will continue to languish in prison, serving sentences that are both unconstitutional and undeserved,” Chisi said.
The Malawi Prison Service is also involved in the Kafantayeni Project and speaks highly of it, observing that it has contributed to the change in inmates’ behaviour.
“As a maximum prison, we have some notorious criminals, but because of the project, it is quiet now,” said Sgt. Andrew Dzinyemba, a warder who has been at the prison since 2001.
Dzinyemba told Mana: “We can see the project’s fruits. There is change in inmates’ behaviour as they are no longer quarrelling and fighting. But the project must be publicized because of its good work.”
At the start of the Kafantayeni Project in February 2015, there were nearly 200 inmates who were on death row who had to be re-heard following the 2007 High Court ruling.
As of December 2015, 64 cases had gone through the project, of which 63 were re-heard and judgment passed, according to Chisi. Fifty-one of the completed cases resulted in immediate release of prisoners.
One beneficiary of the project who walked to freedom after the High Court had reheard his case is Kaula, who was released after spending 24 years in jail allegedly for the murder of his farm worker.
Kaula, like all other prisoners who were on death row as well as those whose sentences were commuted to life who have been freed, said he owed the MHRC and its partners a huge debt of gratitude.
He said that when he was in prison, his ageing mother desperately tried all sorts of ways- -a veiled reference to black magic- -so that authorities could free him, but her attempts yielded nothing.
“While I thank God for everything, I am also very grateful to the MHRC and other stakeholders for fighting to free me, considering how the crime I was accused of having committed happened,” he said.
The widowed Kaula–his wife died while he was in prison–was a well-to-do person by Malawian standards who once worked in South Africa for 17 years.
When he returned home in 1990, he bought a 10-acre fruit garden from a member of the Jehovah’s Witness at Fulanjobvu Village, TA Nsamala who was being persecuted and wanted to flee to Zambia.
“I bought the garden and other property, including his house at K175,000,” Kaula said.
But Kaula claims that unknown to him, some people were also after the same garden he had bought, including those who had been harassing the member of the Jehovah’s Witness.
“I did not know that some people wanted the same property,” he said. “It later dawned on me that most of those who were harassing the Jehovah’s Witness member wanted his garden and other property.”
Kaula said he employed five youth to work in his garden, and that it was that time that he began to encounter problems as some jealous people showed displeasure that he had bought the piece of land.
“There were unnecessary misunderstandings over boundaries, and neighbours would encroach in my garden. Sometimes, they would start fights with my boys,” he said.
Kaula said one day, one of his farm workers got sick and he took him to hospital to receive treatment on three occasions. He said the worker at first got better before he suffered a relapse.
“He became so ill he almost got paralyzed. One day it was raining and I was carrying him in my arms to go and bathe him. As I was descending steps of my house, I slipped and we both fell to the ground.
“My right arm was put in a plaster of Paris. Doctors at the hospital diagnosed my farm worker with cerebral malaria. On the fourth day after the fall, he died in my house,” he said.
Kaula said the death of his farm worker gave his enemies the opportunity to put him in trouble as they accused him of killing him on purpose, and “yet some people saw us fall and vouched for me”.
After burial of his farm worker and seeing people’s animosity towards him grow, Kaula left for Blantyre where he secured a job with a bakery company in 1990, before he was posted to Mangochi.
“On July 4 1991, two CID officers came and asked me how many workers I had on my farm. I said I had four. They said where is the fifth one? I said he died. They said I killed him,” he said.
Kaula made a statement at Mangochi Police and a year later, police again went and told him their colleagues at Balaka wanted him for questioning.
“I was in a cell at Balaka Police for two weeks before I was moved to Zomba Prison,” Kaula said. “I was at Zomba Prison for seven months and then sent to Chichiri Prison.”
He said when the High Court heard his case at Liwonde, his lawyer tried his best to defend him, “but in those days, courts were influenced by members of the jury who were ignorant of the law.”
“The jury looked at me and said I was a very bad person and the judge, basing on the jury’s unanimous decision, ruled that I had to be hanged. From that day, I knew my days were numbered,” he said.
Kaula has vivid memories of the cries of despair as other death roll inmates, shackled in leg irons, were led from their condemned cells to be hanged before dawn.
“We knew they were going to be hanged because most of them used to cry, shouting to their condemned cell neighbours helpless words of self pity as they were taken to the gallows,” he said.
“After my judgment, I was afraid of death and tried to find a way of committing suicide. Once, I looked for a rope with which to hang myself, but there was none in my cell.”
Kaula said at times, he would refuse to eat so that he could starve to death, but in vain. He also did manage to overdose himself with medicines in the hope “I’d die in my sleep” but to no avail.
Some of his painful moments as he waited to be executed were the days his wife went to visit him. He said the sight of his wife fighting back tears usually made things worse.
“There was no limit for visiting, but my wife was not happy to visit a person who was waiting to be hanged. There was nothing to talk about when she came. I’d just tell her to prepare for my funeral.”
Kaula described his six-year stay in jail as a condemned prisoner as sheer torture mentally “because I knew that they would come for me any minute. There was no day or night. I could hardly sleep.”
And it was during this time that he miraculously escaped the gallows, after the executioner on three separate occasions removed his name from the list of those he was to hang.
“Condemned prisoners were executed on three occasions while I was at Zomba Prison,” Kaula said. “God was with me and that is why I survived. He knew I had not murdered my farm labourer.”
One day in 1999, Kaula was surprised when the jailer opened the door to his cell and later the Commissioner of Prisons told him the President had commuted his death sentence to life imprisonment.
“I was overjoyed. It was as if I had been freed entirely. I knew that if I was going to die, it would not be at the hands of the hangman, but through natural causes,” he said.
One sunny morning on February 20 2015, a reluctant Kaula appeared before the High Court in Zomba where his case was scheduled to be reheard under the Kafantayeni Project.
“I was forced to go to court because I thought the rehearing would not end in my favour,” Kaula said.
But to Kaula’s total disbelief, the judge ruled that his initial trial and judgment were unfair before he went on to order his immediate release from prison.
“It was around 10 in the morning. I could not believe my ears when the judge said I had been set free. It was too good to be true. There was no relation in court to rejoice with me.”
Many prisoners on death row who leave jail after experiencing high levels of anxiety have unstable minds. But Kaula shows no sign of having suffered mental illness, despite his lengthy stay in prison.
During the three-hour interview at the Halfway House at Balaka where he works as a tailor and volunteer chaplain, he effortlessly recounted his jail experience as a condemned prisoner and as a lifer.
According to psychologist Dr Ndumanene Silungwe, it is not surprising that some prisoners facing capital punishment leave jail with an unsound mental health when freed.
“It makes sense because when you have been given the death penalty, the mind registers death,” said Dr Silungwe, of St. John of God Hospital in Mzuzu, one of the psychologists with the Kafantayeni Project.
According to a credible prison source, Malawi carried out its last executions in September 1992 when eight male prisoners were hanged. Since then, there has not been a single execution.
“The fact that you know you will never have a chance of coming out of prison affects the mind. You are hoping against hope. With death lingering on your mind, it leads to depression,” Dr Silungwe told Mana.
There was jubilation when news of Kaula’s unannounced release reached Khoswe Village. And unsurprisingly, Kaula’s mother was the happiest of all.
“The day the court ruled that my son had to be hanged, I cried and rolled on the ground several times because he was our breadwinner,” Kaula’s mother, Ruth Samikwa, 83, said.
Samikwa said when she got a phone call from her brother who lives at Domasi in Zomba to inform her about Kaula’s release, she began trembling and jumped up, shouting: “My son! My son!” as if possessed.
“I never thought I would speak to my son again. I shudder when I remember those days we would speak through a tiny window [at Zomba Prison]. I feared the worst. He would only ask me to pray to God.”
While people of Khoswe Village were rejoicing to see one of their own “back from the grave”, as one relation said, there was a gloomy atmosphere at Zomba Maximum Prison after Kaula’s release.
Since February 2003 when French was introduced at the prison as one of the Malawi School Certificate of Education (MSCE) examination subjects, more than 100 inmates have studied the language.
Some inmates have passed with distinction and have gone on to teach French after their release. And the person credited with introducing French in prison as a subject is none other than Kaula.
A former student of Zomba Catholic and St. Patrick Secondary Schools, Kaula single-handed taught French in the prison from forms 1 to 4 up to the day of his release.
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