The route to scrapping the death penalty came via an appeal brought to the apex court by Charles Khoviwa, convicted of murder in 2003.
At the time of his conviction, it was mandatory for a court to impose the death penalty on someone convicted of murder. Although not stipulated in law, counsel in such a case would typically not even bother to make an argument in mitigation of sentence: why bother to explain the personal or psychological forces at work on your client if it could make no difference since the court was obliged to pass the death sentence regardless of any submissions? As a result, the numbers of convicts on death row grew steadily, even though the death penalty had not been carried out in Malawi since at least 1992, thanks to an apparent reluctance on the part of successive heads of state to sign any death warrants.
But this was not Khoviwa’s first time before Malawi’s apex court. Nor even the second. Initially, when he appealed, the supreme court confirmed his sentence. Later, after the courts found that the mandatory death penalty was unconstitutional, Khoviwa asked the high court to reconsider his sentence, but the court refused to do so, saying that the appeal court had already confirmed his original sentence and it had thus become, essentially, unappealable.
Caught in this judicial knot, Khoviwa went back to the appeal court in 2018, asking that his sentence should be reconsidered, despite the high court’s refusal to do so.
Three years later, when no decision on his appeal had been forthcoming, he asked the same court for bail while the judges continued the long consideration of his case. One of the supreme court judges, Anaclet Chipeta, granted him bail, saying he did not think ‘it would be in the interests of justice to find lame excuses for denying bail [to Khoviwa] when it is not his fault that the judgment he awaits has been pending for so long.’
The judge added that he knew the decision of the full court in Khoviwa’s case was ready and that it would be delivered ‘sometime soon’ though the exact date depended on ‘administrative logistics’.
Five months on, those administrative problems appear to have been overcome, and the nine judges of the supreme court of appeal have now delivered their decision.
It would no doubt have come as a surprise to Khoviwa to learn the terms of the decision: the court declared capital punishment unconstitutional in Malawi and ordered that everyone on death row was to be re-sentenced.
It’s a highly significant decision, and puts Malawi on the growing list of countries that have outlawed the death penalty. For the court to reach this conclusion it was required to concede that its earlier decisions on the question had been wrong.
It is a long and complicated decision although exactly how long is impossible to say since the court numbered neither its paragraphs nor its pages. Also, given that the court had been sitting on this decision for so long, and that the decision is so significant, it was a pity that the text was not more thoroughly proof-read for mistakes and to make it easier to study.
About a quarter of the way through the judgment, a reader is alerted for the first time to the possibility that this decision might go further than merely deciding whether Khoviwa’s death sentence could be replaced by a term of imprisonment.
‘Does the constitution … provide for the death penalty?’ the court asked. The question is answered in the next sentence: ‘The constitution does not provide for the death penalty; on the contrary it prohibits derogation from the right to life.’
‘Under section 45 (1) of the constitution, the supreme law of all laws of Malawi, the death penalty, since it is a derogation from the right to life, is impermissible,’ the court found. There had been a ‘gross error’ when the high court set aside the mandatory death penalty because it had concluded that the death penalty itself was ‘sanctioned by the constitution’. But this was not so, the supreme court said.
In an interesting section dealing with whether the rights’ limitation in this case was ‘recognised by international human rights standards’, the court considered the European Convention on Human Rights and how its position on the death penalty had evolved.
The judges quoted from a decision of the European Court on Human Rights, saying that, at the time the convention was drafted, in 1949, the death penalty ‘was not considered to violate international standards’ and allowed for capital punishment to be imposed by a court after ‘conviction of a crime for which this penalty is provided by law.’
This had gradually changed and by 2010, all State members of the Council of Europe, except for Azerbaijan and Russia, had signed a Protocol abolishing the death penalty ‘in all circumstances’.
The court also said that while public opinion in Malawi was against abolition this was a matter involving rights, and was thus ‘a legal matter not to be settled in corridors of public opinion’.
In its conclusion the court recommended that legal aid be granted to everyone on death row who required a sentence re-hearing. Such cases ‘must include an urgent and immediate application to be released on bail with or without bond.’
Prerogative of mercy
‘The death penalty is unconstitutional. … If life imprisonment becomes the maximum sentence [it would be reserved for the worst crimes, and courts were thus] likely to pass a prison term of years. Those who have served long periods of their life or long sentences are likely to get shorter terms or immediate release.’
Decisions, however, would depend on individual facts.
Seven members of the court agreed with this outcome, and upheld Khoviwa’s appeal. However, one judge, Edward Twea, disagreed. He said that once the supreme court had upheld the sentence passed on Khoviwa, it was not possible for him [Khoviwa] to re-open his case. The President had ‘exercised his prerogative of mercy’ and had commuted the death penalty. As a result, ‘the convict will serve the commuted sentence of life imprisonment.’