It was an amazing glitch: though a majority of Malawi’s highest court was seen to have declared the death penalty unconstitutional in a decision delivered late April, the court now says this isn’t so. According to a ‘perfected’ version of the judgment, published this week, the lead writer of the April decision was expressing his own views on the death penalty, not those of his colleagues. In terms of explanations given by other members of the court in the new ‘perfected’ judgment, the lead writer was supposed to have expressed the majority view on the narrow question of whether the convicted prisoner whose appeal the court was considering, was entitled to a sentence re-hearing. Instead, however, he delivered a decision that was much more wide-ranging and committed the majority to a view it had not reached.
Four months ago, Malawi’s highest court was showered with praise, locally and abroad. It had at last grappled with the difficult death penalty issue and had ruled that, as a violation of the right to life, it was unconstitutional. Many organisations, including for example, Amnesty International and the European Union welcomed the decision, with the EU saying that with this judgment, Malawi had ‘joined the large and growing majority of countries in Africa and in the world having abolished the death penalty in law or de facto.’
A majority of the apex court had spoken. Only one judge dissented, and even he made no comment on the constitutionality of capital punishment itself, instead holding that the appeal before the court could be resolved a different way.
Except that it now turns out it was all a mistake.
In a shock decision, delivered this week, a majority of the highest court said that they had not approved – or even discussed – the section of the original April judgment that found the death penalty unconstitutional. The writer of the lead decision was speaking for himself on this issue and his comments were obiter, made in passing, as he dealt with the actual matter before the court, namely the question of whether a prisoner who had been sentenced to death, was entitled to a re-hearing on sentence.
In the decision delivered late April the majority apparently subscribed to the view that the death penalty was unconstitutional, but this week’s decision says it was never even discussed by the judges.
The chief justice, A K C Nyirenda, wrote (in this week’s version) that one member of the court, Justice Dunstain Mwaungulu, since retired, had ‘taken the opportunity to go beyond what is really on appeal and pronounced on the constitutionality of the death penalty itself.’ And while the CJ prefers a tactful approach, saying ‘I would not go that far in the context of this appeal’, other members of the court were more direct in distancing themselves from the April decision and more clearly expressed criticism of their colleague.
It’s a particularly unhappy state of affairs, and readers will surely want to know how it happened.
The new additions that form part of this week’s decision, indicate that the majority had not in fact seen or approved the section of the April judgment in which the lead writer, Justice Mwaungulu, found the death penalty unconstitutional.
If that is the reason, it raises many questions about how the court works, the level of communication between the judges and the system that is followed before a decision is delivered in court.
But it also highlights problems inherent in the practice of the court to provide for what seems like a two-stage process in delivering decisions. A matter will be argued and at some stage afterwards, an unsigned decision is delivered. Then, at some unspecified time after that, a signed ‘perfected’ judgment, is delivered.
It is a system that is fraught with difficulties, dangers (as this latest judgment illustrates) and frustrations, since readers and commentators do not know when the perfected version will be available, and how much of the original will change.
It is a practice unknown in other jurisdictions in this region, where a decision, once delivered, is final. And where any attempt to make later changes would be seen as gravely improper.
Quite how the system of perfecting judgments arose, and why it is allowed to continue, is unclear.
But even those who have grown up with it in Malawi and who see it as a ‘normal’ part of legal life have been shocked by this latest debacle.
Social media was buzzing this week with people asking how the ‘mistake’ had been allowed to happen. Why hadn’t the judgment been recalled? Why had it taken so long for the ‘correction’ to appear? Surely this was not what was intended by the system of ‘perfecting’ judgments? – Its purpose was to allow decisions to be tidied up, rather than turned on their heads; to permit any editing that was needed, rather than producing another decision that contradicted the original outcome.
In the new ‘perfected’ judgment, several members of the court in the majority on the appeal issue explained their view of what happened.
Justice Mwaungulu had the task of writing the majority judgment on the appeal, Justice R R Mzikamanda explains, and was to have written the judgment on the basis agreed by the majority. ‘The constitutionality of the death penalty itself did not fall for consideration in the present case although … [Justice Mwaungulu] addressed it in the judgment and declared the death penalty unconstitutional. The rest of the panel on the majority side of the judgment are surprised by the approach taken by our brother.’
Justice Mzikamanda then speaks of fundamental changes introduced into the majority position by Justice Mwaungulu.
‘The position and conclusion on the constitutionality of the death penalty remains a minority view notwithstanding that the majority agreed to allow the appeal on the basis of [grounds] that were successfully argued. … The majority disassociate themselves from the views and conclusions made on the constitutionality of the death penalty’, said Justice Mzikamanda, pointing out that the appropriate procedures for declaring a law or statute unconstitutional had in any case not been followed.
Further, no party to the appeal had raised the constitutionality of the death penalty or asked other parties to comment on it. ‘Any such pronouncement on the constitutionality of the death penalty would be obiter dicta and to the extent that it has so been declared in the judgment by Justice Mwaungulu, it remains a minority holding, exclusive of the other members of the panel,’ said Justice Mzikamanda.
Justice A C Chipeta was just as forthright. Referring to the majority judgment that Justice Mwaungulu ‘wrote on our behalf’, he said he only agreed with the parts that reflect the views that the majority agreed upon ‘in the discussions that we held soon after concluding the hearing of the appeal.’
He said Justice Mwaungulu decided ‘ad hoc’ to include pronouncements on matters that were not part of the appeal and on which he did not have any discussion with the rest of the court or obtain their agreement, and he added, ‘I wish to totally dissociate myself from the same.’
‘For the avoidance of doubt, I, in the majority judgment in question, dissociate myself from any pronouncements [Justice Mwaungulu] has made and disguised to appear as if they were the opinion of the majority … when in fact they are merely expressions of his personal opinion on such matters.’
Listing the comments and decisions in the original judgment with which he disagrees, Justice Chipeta mentioned the death penalty question in particular, ‘where he [Justice Mwaungulu] has ended up abolishing the said penalty on the pretext that it is unconstitutional, which was no business of the appeal we had to determine.’