The Supreme Court of Appeal in Malawi has declared the death penalty unconstitutional making Malawi the 22nd country in sub-Saharan Africa to do so. The court further ordered the re-sentencing of all convicts facing execution.
The ruling comes following an appeal by Charles Khoviwa, who, despite having no prior convictions, was sentenced to death following his conviction for murder in 2003. This is because Section 210 of the Penal Code of Malawi mandated that all types of murder, whether premeditated or involuntary were punishable by execution. Section 210 is now defunct.
In Charles Khoviwa v The Republic (MSCA Miscellaneous Criminal Appeal No12 of 2017; [2021] MWSC 3, 28 April 2021, the Supreme Court of Appeal held that the right to life was “the mother of all rights”. The court further held that “without the right to life, other rights do not exist” and, therefore, “the death penalty not only negates; it abolishes the right”.
Many landmark cases came before the Khoviwa case which helped establish the legal precedent on the death penalty in Malawi. These cases were taken by an initiative called the ‘Resentencing Project’ which comprised of criminal justice stakeholders, as well as local and international human rights organisations. One of those cases was Francis Kafantayeni and others v the Attorney General (Constitutional Case No12 of 2005; [2007] MWHC 1) where the mandatory death penalty for capital offenses was considered unconstitutional.
Although the death penalty remained legal after the Kafantanyeni ruling, it was not carried out in the 15 years preceding the ruling nor during the 14 years afterward. One of the reasons why it remains on the statute books is to appease the public that it can be used if certain heinous crimes warrant it. The death penalty exists as the ultimate punitive sentence towards deterrence. Therefore, the Khoviwa ruling exists against a backdrop of precedent, legal, political, as well as social pressures.
Click here to read the full Khoviwa decision