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.