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Malawi Supreme Court declares death penalty unconstitutional

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The Malawi Supreme Court of Appeal on Wednesday has ruled that the death penalty is unconstitutional.

“The essence of the right to life is life itself-the sanctity of life. The right to life is the mother of all rights. Without the right to life other to life other rights do not exist. The death penalty not only negates, it abolishes the right.” The Court observed.

The Court ruled after allowing an appeal by Charles Khoviwa who was sentenced to death following his conviction for murder in 2003 despite having no prior convictions. Under the now-defunct Section 210 of the Penal Code of Malawi, the imposition of the death penalty was mandatory for all sorts of murder, whether premeditated or involuntary.

While the appellant’s sentence was commuted to life imprisonment in 2004, a Malawi Court had previously dismissed the appeal and had re-imposed the death penalty on the appellant.

Justice D F Mwaungulu while pronouncing the landmark judgement held, “Derogation from the right to life is prohibited directly and clearly by the Constitution. The essence of section 25, 26, and other sections that prescribe the death penalty in criminal offences is that they are derogations from the right to life – life itself, life in all its sanctity. Under section 45 (1) of the Constitution, the supreme law of all laws of Malawi, the death penalty, since it is a derogation from the right to life, is impermissible.

Curiously, when the legislature in 2011 amended section 25 of the Penal Code, it removed corporal punishment, because of its prohibition in section 19 (2) (b) of the Constitution, and retained the death penalty despite that there could not, under section 45 (1) and (2) (b) of the Constitution be derogation from the right to life. This could only be based on the assumption that the Constitution in section 16 was, in the proviso, ‘sanctioning’ the death penalty. That inference is untenable for many reasons, some of which are clarified earlier.”

Malawi is a country in southeastern Africa that was formerly known as Nyasaland. In sub-Saharan Africa, Malawi is the 22nd country to abolish the death penalty.

The Court further ruled,“If life imprisonment becomes the maximum sentence, where it is not mandatory, by fiction, it cannot be imposed, reserved as it were for the worst instance of a crime. Courts are, therefore, likely, to pass a prison term of years. Those who have served long periods of their life or long sentences are likely to get shorter terms or immediate release.”