Dr Esther Gumboh
Dr Gumboh is a postdoctoral research fellow in the Public Law Department at the University of Cape Town. Her current research interests lie in the interface between human rights and criminal justice.
Realising the Promise of Kafantayeni: Emerging Jurisprudence from the Resentencing of Death Row Inmates in Malawi
Malawi recently informed the Human Rights Committee that it has no plans to abolish the death penalty in the near future. Fortunately, however, the application of death sentences has been limited since April 2007 when the High Court scrapped the mandatory death penalty for unconstitutionality in Kafantayeni v Attorney General. The case involved a challenge against section 210 of the Penal Code which provided that ‘[a]ny person convicted of murder shall be sentenced to death’. This provision differed from other penal provisions providing for death sentences in that it made the death penalty mandatory upon conviction for murder. Other capital crimes, such as robbery and rape, make the death penalty a maximum sentence, leaving courts with discretion to consider other forms of punishment.
THE DECISION IN AND IMPACT OF KAFANTAYENI
The six petitioners in Kafantayeni premised their challenge on the grounds that the mandatory death penalty: a) amounted to an arbitrary deprivation of life in violation of section 16 of the Constitution; b) was inhuman and degrading in violation of section 19(3) of the Constitution; c) violated the right to a fair trial by denying judicial discretion in sentencing; and d) violated the principle of separation of powers. The court upheld the challenges. The court stressed imposing a final and irrevocable sentence of death without the consideration of mitigating factors is inhuman and degrading. It violated the right to dignity, which requires the court to consider the circumstances of the offence and the offender before a death sentence can be imposed. Further, since there may be varying degrees of criminal culpability, participation, and heinousness, not all murders are the same. Therefore, it is improper to impose the same punishment for all murders. The mandatory death penalty was thus found to be unconstitutional and an order for the resentencing of the applicants by the trial court was made.
In short, the effect of Kafantayeni, which has since been affirmed by the Supreme Court of Appeal (MSCA) in several cases, is that death may only be imposed as a maximum sentence. The decision is undoubtedly a landmark decision for sentencing policy in Malawi and a good example of the impact of the Bill of Rights on punishment. It reiterates that constitutional values should be respected in the imposition of punishment. While Kafantayeni obviously does not outlaw the death penalty, it has far reaching implications for its use in Malawi. This is because although the country has at least 12 capital offences, it is only in relation to murder that the penalty is mandatory. Even then, it has been sparsely used. Since the Kafantayeni case in 2005, the death penalty has reportedly been imposed in only one case - Republic v Bandawe.
At the time it was decided, Kafantayeni entitled almost 200 prisoners to resentencing. However, the resentencing process was fraught with delays. In the meantime, the MSCA has confirmed at least 13 mandatory death sentences. It was not until seven years after Kafantayeni in 2015 that the resentencing process began in earnest. By this time, section 210 of the Penal Code had been amended in 2011. It now states that ‘[a] person convicted of murder shall be liable to be punished with death or with imprisonment for life’. This amendment provided the legislative basis for courts to exercise discretion in sentencing for murder. However, its significance has been dwarfed by the fact that the amendment came almost four years after courts had started exercising discretion in murder cases on the strength of Kafantayeni.
OVERVIEW OF EMERGING JURISPRUDENCE
The High Court has since resentenced several offenders, generating much needed jurisprudence that will shape future capital sentencing in Malawi. The emerging jurisprudence is particularly encouraging as it tilts towards a very limited scope for the application of the death penalty. The High Court has clearly been more lenient than the MSCA; it has not imposed death or life on any offender so far, with sentences averaging 20 years. Troublingly however, some judgments have proposed a minimum threshold of 20 years for murder (see for instance Republic v Elias). This suggestion is incompatible with section 210, which renders a murder convict liable to death or life imprisonment. There is hardly room for the proposed minimum threshold. Enforcing the threshold 20 years amounts to the exercise of a discretionary threshold that is not recognised by law.
Resentencing courts have elaborated on many aspects of capital sentencing, including the admission of sentencing evidence. Admirably, several cases have paid careful attention to mitigating factors and the relevance of criminal records, age, vulnerability of the victim, and rehabilitation. Resentencing has also seen courts place more importance on poor prison conditions in mitigation of sentence
Courts have also grappled with how to apply the general sentencing principle that maximum sentences must be reserved for the worst case scenario of offending. Since the death penalty is now a maximum sentence for murder, a court must apply its mind to whether the case before it warrants the maximum sentence. In practice, courts have distanced themselves from finding that a murder crime or offender fits the worst case scenario, deserving the maximum sentence. Indeed, to date, none of the resentenced offenders have been found to fit into this category. This tendency suggests that the death penalty will rarely, if ever, be imposed. Further support for this conclusion can be found in the important principle that the High Court has since stressed ‘that it is always for the prosecution to prove beyond a reasonable doubt that death is the appropriate sentence’ (see Republic v Banda).
International human rights standards and favourable comparable foreign jurisprudence have also featured in resentencing decisions, particularly on questions where there is insufficient local authority. For example, in Republic v Payenda, the court relied on international instruments and foreign case law to rule that post-conviction factors are relevant to sentencing. The court also engaged with international law in exalting the relevance and primacy of rehabilitation as an aim of punishment. In Payenda, this meant that the court was at liberty to favourably consider the fact that the offender had been rehabilitated during his time on death row even though this reformation obviously happened after the commission of the offence. In Republic v Akimu, the court refuted the state’s claim that consideration of post-conviction factors will unfairly prejudice offenders not similarly placed as those undergoing resentencing.
Another feature of the resentencing process is the treatment of cases in which the record is wholly or partially missing. Generally, reconstruction of court records during the resentencing process has not been satisfactory. It has apparently been done extra-judicially by the state and the defence through interviews with offenders and in some cases relatives of the victim (see Republic v James). In Chalera v Republic, the MSCA ruled that a conviction must be set aside where the record is missing and circumstances are such that the interests of justice may be compromised if a court were to proceed in its absence. However, resentencing courts have tended to depart from these principles. In Republic v Dzimbiri for instance, it was held that ‘[w]here the trial record is wholly or partially missing such that there is uncertainty around the circumstances of the commission of the offence, it would be completely inappropriate to impose a death sentence’. Critical mistakes can be made as a result of this approach. In Dzimbiri, the court failed to appreciate that the accused had committed the murder as a child and sentenced him as an adult. The challenges relating to court records must signal to the Judiciary that more needs to be done in as far as the proper record keeping is concerned.
The resentencing process has also brought the shortfalls associated with Malawi’s jury system to the fore. While the jury system has been suspended for a long time in the country, all offenders undergoing resentencing were convicted by jury. Resentencing has exposed clear instances where those not guilty of murder found themselves on death row, such as the accused in Payenda. Children too were not spared, with 15 year old offenders sentenced to mandatory death penalties in contravention of section 26 of the Penal Code which exempts children from the death penalty. As a result of Kafantayeni, some have been released (see Republic v James).
Symptomatic of the Malawian criminal justice system as a whole, one upsetting aspect of the resentencing process is that victims have once again been forgotten. Section 321J of the Criminal Procedure and Evidence Code permits the admission of evidence for sentencing purposes. Surprisingly, none of the numerous judgments perused by the author contain testimony from victims. In sharp contrast, the defence has often submitted mitigatory sentencing evidence such as that of medical experts on the mental state of offenders, prison chaplain reports and positive testimony from community leaders which casts offenders in a good light.
There has been controversy about whether offenders whose mandatory death sentences were confirmed by the MSCA remain entitled to resentencing. In Republic v Chimkango, the High Court ruled itself out of jurisdiction to resentence offenders whose death sentences had been confirmed by the MSCA. On further appeal, the MSCA rejected the matter out of hand for finality. However, months later, the MSCA reached a different conclusion in Republic v Maiche, rightly finding that appeals against mandatory death sentences were misconceived as the sentences had perished by virtue of Kafantayeni. In effect, after kafanateyni, all death row inmates were effectively unsentenced prisoners. Hence, what was required was not an appeal against the death sentences that were imposed, but a resentencing process. Maiche effectively ruled the MSCA out of jurisdiction to confirm mandatory death sentences as it purported to do in the appeals that were brought before it after Kafantayeni was decided. On the strength of Maiche, decisions that are based on the mandatory death sentence are invalid. For the same reason, death sentences that were commuted to life by the President exercising his powers under section 89(2) of the Constitution would lack legal effect, and are open to resentencing in view of Kafantayeni.
Ultimately, while the emerging jurisprudence on capital sentencing is not immune to criticism, it is definitely a step in the right direction as Malawi strives to develop capital sentencing jurisprudence. The resentencing process is by its very nature unique and some aspects of its jurisprudence may not be of general application. It is therefore hoped that our courts will build on this jurisprudence as they strive to restrict the application of the death penalty in Malawi. This is particularly important given that the country recently affirmed its commitment to retain the death penalty in its statute books.
Amended Guidelines for the Exercise of Prerogative of Mercy Adopted by the Advisory Committee on the Granting of Pardon, 2005
Criminal Procedure and evidence Code, Chapter 8:01 of the Laws of Malawi
Kafantayeni v Attorney General Constitutional Case No 12 of 2005
Penal Code, Chapter 8:01 of the Laws of Malawi
Republic v Akimu Sentence Re-hearing No 11 of 2016
Republic v Banda Sentence Re-hearing No 9 of 2016
Republic v Bandawe Criminal Case No 40 of 2010
Chalera v Republic (Criminal Appeal No 5 of 2012
Republic v Chimkango Sentence Re-Hearing Cause No 36 of 2015
Republic v Dzimbiri Sentence Re-hearing No 4 of 2016
Republic v Elias Homicide Case No 4 of 2015
Republic v James Homicide Case No 69 of 2015
Republic v Maiche Sentence Re-hearing No 9 of 2016
Republic v Payenda Homicide (Sentence Hearing) Cause No 18 of 2015.