Malawi death penalty decision a roadmap for many countries

THE Malawi Supreme Court of Appeal abolished the death penalty in April, the most notable decision against capital punishment since the South African Constitutional Court found the penalty unconstitutional in 1995.

The Malawian decision is significant because Malawi’s constitution specifically provides for the death penalty (in Article 16), unlike the unqualified right to life in the South African Constitution.

The Malawian decision ended years of confusion over the status of the remaining 37 prisoners on death row.

Nearly 15 years ago, the Malawi High Court abolished the mandatory death penalty for murder. It had found that an automatic death sentence did not sufficiently individualise sentencing and, therefore, was cruel and degrading punishment.

But the ruling was not clearly retroactive. Many defendants were still appealing their mandatory death sentences or had them commuted to life imprisonment without ever having a sentencing hearing. This “grey area” led to the latest court challenge brought by Charles Khoviwa, a death row inmate and client of Reprieve, a legal action non-profit organisation, and the Malawi Legal Aid Bureau, that resulted in the abolishment.

Although the Khoviwa decision was particular to Malawi’s progressive constitution, the case has implications for other southern African countries, most of which keep the death penalty on the books but do not use it.

Malawi’s constitution came out of a public consultative process, initiated after a one-party dictatorship that ended in 1994. As a result, this newer constitution has progressive elements.

They include that Malawi must consider international law obligations and may look to foreign case law in deciding constitutional disputes.

This is important because international human rights law disfavours the death penalty, and has placed increasingly strict standards on its use. Ever fewer countries carry out executions, which has strengthened the human rights case against the death penalty.

Because Malawi’s constitution is a living document that evolves, the Supreme Court of Appeal considered the global decline of capital punishment.

In the Khoviwa case, the court considered Article 16 of the Malawian constitution. The court explained that the wording of this provision created two separate rights: the right to life and the right not to be arbitrarily deprived of life. This is clear in the text:

Every person has the right to life and no person shall be arbitrarily deprived of his or her life.

But the wording of the second sentence of Article 16 was unusual compared with other Commonwealth and African constitutions. This said: “the execution of the death sentence … shall not be regarded as arbitrary deprivation of his or her right to life.”

The second sentence only stated that the death penalty could not be an arbitrary deprivation of life; it did not state that the death penalty could not violate the right to life (the other right contained in Article 16) or the right to be free from cruel and degrading punishment (at Article 19).

This gave the court an opening to find the death penalty unconstitutional even though Article 16 specifically provided for the death penalty.

The wording of Malawi’s constitution is peculiar. The constitutions of its southern African neighbours, Botswana, eSwatini and Zambia, have a right-to-life provision that specifically provides for the death penalty. This, without setting out a separate right not to be arbitrarily deprived of life, so the reasoning of the Malawi Supreme Court of Appeal in the Khoviwa case is not precisely applicable.

The constitutions of South Africa, Mozambique and Namibia have an unqualified right to life with no provision for the death penalty, which is why these countries are abolitionist.