“The Malawi Supreme Court of Appeal has declared that the death penalty is unconstitutional”
“The essence of the right to life is life itself-the sanctity of life. The right to life is the mother of all rights. Without the right to life other rights do not exist. The death penalty not only negates, it abolishes the right.”, the Court (8:1) observed in its judgment.
The court observed thus while allowing an appeal filed by one Khoviwa, who was sentenced to death. Referring to the provisions of the Constitution of Malawi, the majority judgment authored by Justice D F Mwaungulu notes that the same does not provide for the death penalty; on the contrary it prohibits derogation from the right to life.
“Derogation from the right to life is prohibited directly and clearly by the Constitution. The essence of section 25, 26, and other sections that prescribe the death penalty in criminal offences is that they are derogations from the right to life – life itself, life in all its sanctity. 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. Curiously, when the legislature in 2011 amended section 25 of the Penal Code, it removed corporal punishment, because of its prohibition in section 19 (2) (b) of the Constitution, and retained the death penalty despite that there could not, under section 45 (1) and (2) (b) of the Constitution be derogation from the right to life. This could only be based on the assumption that the Constitution in section 16 was, in the proviso, ‘sanctioning’ the death penalty. That inference is untenable for many reasons, some of which are clarified earlier.”, the judgment reads.
The Court further held that Sections 25 (a) and section 26 of the penal law in prescribing death as one of the sentences and sections 38 (1) (for treason), 63 (1) (for piracy), 133 (for rape), 210 (for murder), 217A (2) (a) (for genocide) and 309 (1) and (2) (for housebreaking and burglary, respectively) of the Penal Code must be read as meaning the maximum prison sentence – life imprisonment. “If life imprisonment becomes the maximum sentence, where it is not mandatory, by fiction, it cannot be imposed, reserved as it were for the worst instance of a crime. Courts are, therefore, 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.”, the court said.
Malawi is a country in southeastern Africa that was formerly known as Nyasaland.