Malawi retains the death penalty for murder, rape, treason, armed robbery and burglary with aggravated circumstances.
Malawi has been a party to the International Covenant on Civil and Political Rights (ICCPR) since 1993, and in 1996 ratified the First Optional Protocol to the ICCPR allowing for the right of individual petition to the UN Human Rights Committee. It has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty. Malawi ratified the African Charter on Human and Peoples’ Rights in 1989 and signed the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights in 1998.
The jurisprudence created in the Ugandan courts, restricting the imposition and application of the death penalty, has had an impact in other African countries, including Malawi.
In 2005, working with a team of local lawyers and the Malawi Human Rights Commission (MHRC), we co-ordinated a successful constitutional challenge to the mandatory death penalty in Malawi in the case of Kafantayeni and others -v- The Attorney General of Malawi (Constitutional Case No. 12 of 2005). In their judgment delivered in 2007, the High Court of Malawi declared that the death sentences of all prisoners on death row unconstitutional. In a unanimous judgment, the Court ruled that the automatic nature of the death penalty in Malawi for murder violated the right to life and amounted to inhuman punishment, as it did not provide the individuals concerned with an opportunity to mitigate their death sentences. As a consequence of the ruling, in all future cases the death penalty is less likely to be imposed, or where imposed it is less likely to be carried out. See our press release here.
In 2008, the Court of Appeal of Malawi approved the decision of the High Court in declaring the mandatory death penalty unconstitutional in the case of Jacob v Republic (Crim. App. No. 16 of 2006)
As a result of the abolition of the mandatory death penalty in 2007, all 192 prisoners sentenced to the mandatory death penalty are entitled to be re-sentenced. We have been working with the MHRC and local counsel in preparing for sentencing hearings. A UK-based forensic psychiatrist was instructed to carry out assessments of the five plaintiffs from the Kafantayeni case and character witness statements have been obtained. Unfortunately in 2012, one of the plaintiffs died in prison and the lead plainfiff, Kafantayeni, died in early 2014.
The first re-sentencing hearings commenced on 11th February 2015. The first two cases for prisoners who remained on death row were decided on 27th April 2015. Both prisoners’ death sentences were set aside and each was re-sentenced to 24 years imprisonment (from the date of their arrest) after the judge took into account the 12 years they have spent on death row and other mitigating evidence, which included a psychiatric report and character witnesses evidence. Read our press release.
As of April 2015, 29 re-hearings have taken place – 12 prisoners have been released immediately; five prisoners have been given determinate sentences that will result in release in five years or less, taking into account time served and remission of sentences. Judgment has been reserved in the remaining cases.
To date, no sentencing guidelines have been issued. The Death Penalty Project has continued to promote the adoption of sentencing guidelines and practice in capital cases. In January 2013, in collaboration with the Malawi Human Rights Commission, a judicial colloquium and a separate training seminar for lawyers and prosecutors were held, focusing on the application of the discretionary death penalty in Malawi.
Judicial colloquium and training seminar, Zomba, September 2007
The Malawi Human Rights Commission invited us to collaborate with them in conducting a judicial colloquium on sentencing in capital cases which was held in Zomba in September 2007. This was followed by a separate training seminar for prosecution and defence lawyers held in Blantyre. The training was conducted by the Hon. Mr Justice Abdulai O. Conteh, the Chief Justice of Belize, Keir Starmer QC and Joseph Middleton. Copies of our publication A Guide to Sentencing in Capital Cases, by Edward Fitzgerald QC and Keir Starmer QC were distributed free of charge to all participants.
Judicial colloquium and training seminar, January 2013
In January 2013, in collaboration with the Malawi Human Rights Commission, we held a judicial colloquium and a separate training seminar for lawyers and prosecutors on the application of the discretionary death penalty in Malawi. Sir Denis Bryon, President of the Caribbean Court of Justice (CCJ) and Justice Adrian Saunders from the CCJ were invited to participate in the programme and led the discussions.
The events were hugely successful and were attended by 26 judges (full compliment of High Court and the Court of Appeal) and 40 lawyers and prosecutors. As an outcome, the Chief Justice of Malawi agreed to consider adopting sentencing guidelines which is required to ensure that the new law is applied consistently by judges around the country.
The training is a follow-up event from the previous activities held in 2007 which arose out of the changes to the death penalty laws as a result of the abolition of the mandatory death penalty. It is hoped that these programmes will further assist judges and lawyers under the discretionary capital sentencing system.