Malawi Supreme Court Retreats from Opinion that Declared the Death Penalty Unconstitutional

In a con­fus­ing about-face that has angered human rights activists, the Malawian Supreme Court of Appeal has retreat­ed from a pri­or deci­sion of the court that had appeared to have abol­ished the African nation’s death penal­ty. On August 18, 2021, sev­en jus­tices of the high court issued a ​“per­fect­ed” judg­ment in the case of Khoviwa v. The Republic declar­ing that the orig­i­nal opin­ion, authored by since-retired Justice of Appeal Dunstain Mwaungulu (pic­tured) and read from the bench in his absence on April 28, was an unper­fect­ed rul­ing that rep­re­sent­ed the views of a sin­gle jus­tice, not the full court.

Justice Mwaungulu’s opin­ion ruled that Malawi’s death-penal­ty statute con­tra­vened Part IV of the nation­al con­sti­tu­tion, which pro­vides for the right to life. ​“The essence of the right to life is life itself — the sanc­ti­ty of life,” he wrote. ​“The right to life is the moth­er of all rights. Without the right to life oth­er rights do not exist. The death penal­ty not only negates, it abol­ish­es the right.”

The per­fect­ed opin­ion by Justice R.R. Mzikamanda asserts that the full court nev­er struck down cap­i­tal pun­ish­ment. ​“The con­sti­tu­tion­al­i­ty of the death penal­ty itself did not fall for con­sid­er­a­tion in the present case,” he wrote. Instead, the only issue in the case was whether Charles Khoviwa was enti­tled to be heard before the tri­al court deter­mined his sen­tence. Mzikamanda’s deci­sion affirms the uncon­sti­tu­tion­al­i­ty of manda­to­ry death sen­tences but leaves tri­al judges with the dis­cre­tion to impose the death penal­ty in capital cases.

Justice Mwaungulu said he was not con­sult­ed before the court revised its decision. 

The news out­let Malawi 24 report­ed that ​“legal activists” react­ed angri­ly to the court’s action, which con­tra­vened estab­lished court’s pro­ce­dures and ​“threaten[ed] the country’s rep­u­ta­tion for judi­cial inde­pen­dence.” Lawyer and death-penal­ty abo­li­tion­ist Alexious Kamangila said that under Malawi Supreme Court of Appeal pro­ce­dures, a deci­sion is con­sid­ered per­fect­ed after 14 days and that the unprece­dent­ed revi­sion four months after pub­li­ca­tion raised ques­tions of outside interference. 

Noting that the orig­i­nal deci­sion had been laud­ed as ​“a key moment in Africa’s turn away from cap­i­tal pun­ish­ment,” Kamangila said, “[t]his con­fus­ing so-called ​‘per­fect­ed’ judge­ment throws that progress into doubt and reflects poor­ly on Malawi’s jus­tice sys­tem. If Khoviwa can be reversed back­door as it has, no judg­ment is safe. This is noth­ing to do with abo­li­tion or reten­tion of the death penal­ty, it is a ques­tion of rule of law.” 

The United Kingdom — one of Malawi’s prin­ci­pal sources of for­eign aid — expressed hope that the Malawian par­lia­ment would step in to abol­ish the death penal­ty. In a state­ment issued August 20, British High Commission Charge d’affaires Fiona Ritchie said that the orig­i­nal court deci­sion had ​“increased Malawi’s inter­na­tion­al rep­u­ta­tion for stand­ing up for human rights.” The United Kingdom ​“would encour­age the gov­ern­ment and Parliament of Malawi to explore alter­na­tive ways of remov­ing the death penal­ty from the statute books. We stand ready to share our expe­ri­ence with the process of abol­ish­ing the death penal­ty,” she said.

Malawian law had man­dat­ed the death penal­ty for mur­der or trea­son and per­mit­ted it for rape, rob­bery, and bur­glary involv­ing vio­lence. However, no exe­cu­tions have been car­ried out since the nation’s first demo­c­ra­t­i­cal­ly elect­ed gov­ern­ment took office in 1994 and the coun­try is con­sid­ered abo­li­tion­ist in practice.

Malawi, a south­east­ern African nation of 19.4 mil­lion peo­ple locat­ed in the Great Rift Valley between Zambia, Tanzania, and Mozambique, was thought to have become the 22^nd coun­try in Africa and the 109^th world­wide to end cap­i­tal pun­ish­ment. Sierra Leone, which leg­isla­tive­ly abol­ished the death penal­ty in July 2021, now holds that distinction.