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What Is The Case

  • The death penalty has been ruled unconstitutional by Malawi's Supreme Court of Appeal.
  • "The right to life is defined by the sanctity of life itself. The right to life is the most important of all. Other rights do not exist without the right to life. The death penalty not only negates but also eliminates the right to life ", the Court (8:1) noted in its decision.
  • The court made this observation while granting an appeal filed by a man named Khoviwa, who had been sentenced to death. The majority judgment, authored by Justice DF Mwaungulu, states that the Malawian Constitution does not allow for the death penalty; rather, it forbids derogation from the right to life.
  • The court wrote that “derogation from the right to life is prevented expressly and explicitly by the Constitution.” The court ruled that the death penalty violates Malawi's constitution because it "not only negates but also abolishes" the right to life.

Details

  • In Malawi, 27 people were estimated to be on death row as of the end of 2020. They must be re-sentenced, most likely to a term of years, according to the nation's highest court. “Those who have completed lengthy periods of time or long sentences are more likely to receive shorter terms or immediate release,” the court wrote.
  • According to the court, no one has been executed in Malawi since 1975. When Bakili Muluzi became the country's first constitutionally elected president in 1994, he opposed capital punishment, and every president since has declined to sign any death warrants.
  • Last year, reported executions in Sub-Saharan Africa fell by 36%, from 25 in 2019 to 16 in 2020, following a strong global movement toward capital punishment. The number of executions worldwide in 2020 was the lowest in a decade, according to Amnesty International. Indeed, in today's ruling, Malawi's high court stated that the death penalty "violates universal human rights principles."
  • As a result of today's ruling, Malawi's maximum penalty is now life imprisonment, which is reserved only for the "worst instance of crime."
  • Following Chad's abolition of capital punishment for all offences in May, Malawi has become the 22nd nation in Sub-Saharan Africa to abolish the death penalty.

Observation Of The Court

  • The meaning of sections 25, 26, and other sections that impose the death penalty for criminal offences are derogations from the right to life - life itself, life in all its sanctity.
  • The death penalty is prohibited under section 45 (1) of the Constitution, Malawi's supreme law, because it is a derogation from the right to life.
  • Surprisingly, when the legislature revised section 25 of the Penal Code in 2011, it repealed corporal punishment, despite the ban in section 19 (2) (b) of the Constitution, and preserved the death penalty, despite the fact that there could not be a derogation from the right to life under section 45 (1) and (2) (b) of the Constitution.
  • This could only be founded on the premise that section 16 of the Constitution was sanctioning the death penalty in the proviso. "The inference is untenable for a variety of purposes, some of which have already been explained," the ruling said.
  • "By fiction, if life imprisonment becomes the maximum penalty where it is not mandatory, it cannot be enforced, as if it were reserved for the most heinous crimes. As a result, courts are likely to impose a lengthy jail sentence.
  • Those who have completed lengthy periods of time or have served long sentences are more likely to receive reduced sentences or be released immediately ", according to the court.
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