Bail for death row prisoner after long appeal delay

20 November 2020 · Carmel Rickard

Normally a reader might have little sympathy for someone convicted of murder who is serving time in prison. But the case of Malawian Charles Khoviwa is rather different. Sitting on death row for many years, Khoviwa has been trying to have sentence in his case reconsidered, now that the courts have decided that the mandatory death penalty, in force at the time of his conviction, is unconstitutional. His appeal, asking for a re-sentencing hearing, was argued nearly three years ago before a full bench of the Supreme Court – and still judgment has not been delivered. Now a single judge of that court has decided to grant him bail, saying it was not the fault of Khoviwa that ‘the judgment he awaits has been pending for so long’. After serving 18 years in prison, Khoviwa may now wait at home for the decision on whether he will be granted a re-hearing on sentence.

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Malawi’s judiciary is being hailed internationally for its bravery, sense of justice and protection of judicial independence.

One value missing from that list, however, is a sense of urgency about delivering decisions. It’s an issue raised here before, and that is clearly an issue of public concern, but a new decision by Anaclet Chipeta, respected member of the country’s Supreme Court of Appeal and someone who has been in the invidious position before of dealing with his colleagues' delay in delivery, makes clear that the problem continues to fester with no sign that it will be resolved in the immediate future.

The case dealt with by Justice Chipeta concerns Charles Khoviwa, a man convicted of murder by the high court in 2003. In those days, capital punishment was mandatory for anyone found to have committed murder, and he was thus sentenced to death, ‘virtually as a matter of course’, as Justice Chipeta put it.

Rehearing

Soon afterwards, Khoviwa appealed to the Supreme Court of Appeal against conviction and sentence, but lost his appeal and he has been sitting on death row since then. However, changes were coming to the law in Malawi. First, the mandatory nature of the death penalty was found to be unconstitutional. Second, the courts ordered that in the test case on this issue, the accused be given a rehearing on an appropriate sentence. Third, the courts said that such a rehearing facility should be extended to everyone sentenced to death at the time that penalty was mandatory.

Early in 2017, however, the high court refused Khoviwa the chance for a sentence rehearing. This was because he had already taken his case to the Supreme Court of Appeal, which had confirmed his sentence. In the wake of that decision, and despite the fact that the Supreme Court of Appeal had, in 2010, ruled that the sentence of all convicts on death row should be reconsidered, the high court said his death sentence was unappealable.

Faced with this classic case of Catch-22 reasoning, Khoviwa headed back to the apex court, and in February 2018 appealed against the high court’s decision that no re-sentence hearing could be held in his case.

It is now almost three years later, and no decision has yet been delivered in the matter so he still does not know whether he may have a sentencing rehearing or not. Meanwhile, however, he returned to the Supreme Court of Appeal asking that he should be granted bail pending the judgment on a re-hearing.

'Pending to this day'

This was the application made by Khoviwa and heard by Justice Chipeta, on which the judge has now given his decision.

The Supreme Court of Appeal Act provides that the court may ‘if it deems fit’, grant bail to an appellant ‘pending the determination of his appeal’. This fitted Khoviwa’s case exactly, said the judge. Khoviwa was entitled to ask for bail on the basis of this provision. His appeal was heard ‘at the very least’ some 32 months ago and its determination ‘is pending to this day’.

Basically, the judge had to decide whether he ‘deemed it fit’ to grant bail to Khoviwa. In his view, the law makers must have known that this section (allowing a court to grant bail in cases where an appeal was pending) would apply to those given sentences that kept them in prison. The provision was ‘meant to offer a window of opportunity’ while awaiting judgment ‘for tiresomely long after presenting and arguing their appeals in this court’ (that is, the Supreme Court of Appeal).

Punishment

The provision used language broad enough to cover anyone in prison waiting an appeal decision on their sentence, regardless of whether the pending sentence was short, a life sentence or the death penalty. No discrimination is made in the section on the basis of the length of punishment faced by the prisoner.

Khoviwa was able to show the court that there was a good chance his death sentence would be commuted to a fixed term, based on the general experience of other death row prisoners. In addition, he had already served 18 years since his conviction and further more he has been waiting nearly three years to learn if his death sentence would be commuted.

‘I do not think that it would be in the interests of justice to find lame excuses for denying [Khoviwa] bail when it is not his fault that the judgment he awaits has been pending for so long’, said Justice Chipeta.

Logistics

The judge repeated his earlier disclosure that he knew judgment by the full court in Khoviwa’s case was ready ‘and chances are that the full court will deliver it sometime soon.’ The precise date, however, depended ‘on the administrative logistics that must be put in place to facilitate such delivery.’

He had not wanted his decision in Khoviwa’s current appeal to be clouded by the fact that a decision on the earlier issue was ready for delivery. ‘It is my belief that justice must at all times be treated as a priority, and that it ought therefore to override administrative considerations where the two are competing for attention.’

Granting Khoviwa bail from death row, the judge imposed a number of conditions including the payment of bail bond by Khoviwa and his sureties, the surrender of any travel documents, regular reporting to the police, and restrictions on travel outside his home area.

Not abstruse

Khoviwa could well be freed on bail and back home by now, but the deeper question remains: why is it that the full court of Malawi’s highest legal forum should take so long to decide a matter that is of the greatest importance to the prisoner concerned? After all, he could well be sentenced to time less than the 18 years already served if he is granted a re-sentencing hearing, so this is an issue of the liberty of the subject, not an abstruse commercial matter. And it is far from the only case in which a prisoner in Malawi has had to wait out what – at least to this observer – feels like an unconscionable delay before the delivery of judgment.

* A Matter of Justice, Legalbrief, 17 November 2020

Carmel Rickard

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