While Malawi’s supreme court judges agonized over the constitutionality of capital punishment, one of their high court colleagues had a similar problem. He was wrestling with whether to impose the death penalty on a group of men convicted of a particularly terrible crime: the gratuitous slaughter of a man with albinism, whose body parts they hoped to sell.
Judgment in the case is noteworthy partly because it is rare that killers of people with albinism are caught and tried, let alone convicted or given tough sentences, and partly because of the way the judge, Redson Kapindu, takes a reader through his decision-making on the most appropriate sentence for the case.
Judge Kapindu begins his decision by repeating the opening words of the constitution, and their recognition of the sanctity of human life. Then he introduces the reader to Fletcher Masina, ‘a very good, hardworking and highly committed family man’. He and his wife had four children, and ‘they were the world to him’.
Similarly, ‘He was to them, the best husband and the best father, respectively. These facts were clearly evidenced by the testimonies that this court heard in the course of the trial.’
He and his wife were working together in their garden one morning five years ago. Around noon, his wife went home to see to other chores, little knowing that was the last time she would ever see him alive.
During the afternoon, as he worked, a gang of ‘rapacious murderers’ attacked and killed him for his body parts. At this point, explaining that the gang wrongly believed that people with albinism are somehow supernatural, the judge said the government should increase its awareness programmes to educate the public on albinism ‘and the need for society to be vigilant in guarding against attacks on persons with albinism’.
Motivated by ‘a deep love of money’ and with a ‘false promise of bounty spinning in their criminal minds’, the gang attacked Masina in his garden with crude weapons, and ruthlessly clubbed him to death. The consequences for his family were ‘indescribable’, said the judge. It was a tragedy ‘that breaks the heart’.
The family were ‘spinning down into a sad vortex of deep poverty’ as a result of her husband’s murder, his wife explained to the court.
In all, 11 men were charged with this murder, four of whom were ultimately convicted. However, one of that group died after conviction but before sentence, under conditions that the court said required an inquest, and so the court now had only three men before it in the dock.
At the time sentence in the Masina matter was delivered, the supreme court’s decision that the death penalty was unconstitutional was still 10 days away. And of course, no one yet knew it was to be delivered, let alone the outcome.
The prosecution called for the death penalty in this case, saying that people with albinism in Malawi continued to live in fear and there was a need for a sentence that would send a clear message to such perpetrators. While the accused were all first offenders, the seriousness of their offence was so great that the death penalty was the only appropriate punishment, the judge heard.
Defence counsel on the other hand, said that this punishment was reserved for the ‘rarest of rare’ cases and urged leniency.
Judge Kapindu said that while first offenders were often given non-custodial terms, the gravity of the Masina case meant a non-custodial term would amount to a ‘clear travesty of justice’.
Killings such as this caused terrible anguish and anxiety among people with albinism and it was essential that when punishing offenders for such murders, courts should ‘fully appreciate the need to ensure public safety and peace of mind.’
‘Vile and gravely heinous’ as Masina’s murder was, the judge did not believe the three men were so ‘irredeemable’ that their lives had to be ended. On the other hand, he did not believe that the death penalty was a ‘more serious punishment’ than life in prison. While the death penalty was irrevocable, life imprisonment was arguably ‘a sterner punishment’ because it involved ‘only hopeless, painful years … stretching out forever’.
The three convicted men were to spend ‘the remainder of their lives under incarceration, in prison, with hard labour’ until they died., he ruled. Having passed sentence, the court added two significant postscripts.
First, the court had not been convinced that investigations in the case were ‘sufficiently exhaustive’ and believed the state should look more closely at the credibility of the claim as to why they decided to kill Masina.
Second, the court was aware that the President of Malawi had power to pardon or reduce sentences. However, the court expressed the strong view that people with albinism and the rest of society ‘would be most at peace if [the three accused] ... were never to benefit from the Presidential exercise of any of these powers, and therefore hopes that successive state presidents will share in this view. In other words, the court forms the strong view that, all things being constant, the justice of the present case will lie in the life sentences imposed herein applying without the possibility of release and that the convicts herein are to die in prison custody.’
Although killing of people with albinism for traditional medicinal purposes occurs in many African countries, it is most prevalent in east Africa. Research has found that killings of people with albinism has sharply increased in Malawi in the last six years or so. In 2017 alone, police were investigating at least 39 cases in which the bodies of people with albinism had been removed from their graves, while there has been an increase in cases where high-profile figures are whispered to be behind such killings.
Human rights organisations such as Amnesty International see this as a human rights crisis for Malawi, with Amnesty UK saying in 2017 that during the previous year there had been 45 incidents of murders, attempted murder, abductions and attempted abductions, ‘although the real figure could be much higher, due to the fact that secretive rituals in rural areas are rarely reported.’
Amnesty added that it had ‘serious concerns’ about the ‘inadequacy of police investigations’, and that perpetrators were generally not being given sentences ‘in line with the severity of the crime’. Perhaps the tough sentences passed by Judge Kapindu marks a new phase in judicial response to this terrible crime.
* 'A matter of justice', Legalbrief, 11 May 2021