After many years of delay, the Courts in Malawi have been conducting sentencing hearings in the cases of prisoners who received mandatory death sentences prior to the landmark case of Kafantayeni and others v The Attorney General of Malawi striking down the mandatory death penalty.
Since February 2015, the courts have heard 29 cases of the 192 prisoners now entitled to re-sentencing hearings. These prisoners had already been commuted to life imprisonment but were still entitled to have their case considered based on their individual circumstances. 12 of these prisoners have been released and five others have received determinate sentences.
The first two cases for prisoners who remained on death row were decided on 27th April 2015. Aron John and Tony Thobowa‘s 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 witness evidence. Both defendants have behaved well in prison and if this continues they will benefit from a one-third remission of their sentence, meaning they are likely to be released in four years’ time.
Emile Carreau, a volunteer lawyer from Australia, said, “I visited Tony and Aron the day after judgment and both were in good spirits. They have already asked the prison officers to place them in the agriculture programme, which will allow them to go outside and farm maize and other crops on land next to the prison. They said they are looking forward to it because they have not been outside the prison uncuffed since being sent there in 2003.”
The High Court accepted the submissions made on behalf of the two individuals, namely, that they had remained on death row for some 12 years and it would be cruel and inhuman to execute a condemned person who had remained under sentence of death for such a protracted period. The Court also recognised the serious implications of the loss of their case files by the Court Registry and accepted that leniency should be provided in similar cases.
Saul Lehrfreund, co-executive director of The Death Penalty Project said, “The outcome of this case is extremely encouraging. The courts in Malawi have recognised that the death sentence cannot be carried out where there is a clear violation of international human rights principles. To go from more than a decade on death row to potential release in 4 years time is a huge step and is a testament to the many individuals and groups who have been assisting prisoners such as Tony Thobowa and Aron John for many years.”
Malawi Re-sentencing Project
Professor Sandra Babcock of Cornell University and a volunteer team of her students have been co-ordinating the re-sentencing hearings for all 192 prisoners with the Malawi Human Rights Commission. They have been provided with invaluable assistance by volunteers from the NGO Reprieve.
Since 2007, the Death Penalty Project has been assisting six individuals under sentence of death in Malawi in preparing for their re-sentencing hearings. Unfortunately, two of the individuals have since died in prison. Those who have assisted The Death Penalty Project include:- Joseph Middleton (Doughty Street Chambers), instructed throughout to draft the legal submissions; Dr Marc Lyall(Forensic Psychiatry Chambers), who travelled to Malawi to carry out psychiatric assessments and prepared expert medical reports; John-Gift Mwakhwawa, an attorney in Malawi who represented Tony Thobowa and Aron John before the High Court; and Emile Carreau, who has worked tirelessly in locating case files and conducted mitigation investigations. All assistance has been provided pro bono.