Home Africa News Malawi abolishes death penalty – what are the regional implications?

Malawi abolishes death penalty – what are the regional implications?

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Malawi's newly elected President Lazarus Chakwera greets supporters after being sworn in in Lilongwe, Malawi, Sunday, June 28 2020. Chakwera is Malawi’s sixth president after winning the historic election held last week, the first time a court-overturned vote in Africa has resulted in the defeat of an incumbent leader. (AP Photo/Thoko Chikondi)/XDF105/20180395598537//2006281303

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 been 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, which resulted in the abolishment.

Malawi’s constitution

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 in practice.

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 some 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 in practice, which in turn has strengthened the human rights case against the death penalty.

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