Malawi’s Supreme Court of Appeal says the death penalty remains constitutional in the southern African country. The decision reverses a ruling from just four months ago, when the same court abolished the death penalty. Rights campaigners say the development is disappointing.
The ruling in April stemmed from the petition of a convicted murderer, who wanted the Supreme Court to re-hear his case.
In his judgment, Justice Dunstan Mwaungulu, now retired, said Malawi's constitution respects the right to life – and said the death penalty negates that right.
He emphasized the sanctity of life, saying without the right to life, other rights do not exist.
Justice Mwaungulu also ordered the re-sentencing of all cases where the death penalty was handed down.
However, in a document released this week, the other Supreme Court justices say Mwaungulu’s ruling only expressed his personal opinion.
Justice Anaclet Chipeta said he dissociates himself from the judgment because it did not reflect the views of the majority of the appeal court justices.
Another justice, Rezine Mzikamanda, said the issue of the constitutionality of the death penalty was not part of the case they were handling.
Peter Dimba is chairperson of the legal committee of Malawi’s parliament.
“The views of the majority of the judges on the panel would have carried the day because that’s what it means. So as it stands, it means death penalty still stands," Dimba said.
Michael Kaiyatsa is executive director for the Centre for Human Rights and Rehabilitation in Malawi.
He says although the justices have valid reasons for not backing Mwaungulu’s opinion, the Malawi government needs to move quickly to formally abolish the death penalty.
"We think Malawi has an obligation under international human rights law to ensure that it complies with that resolution," Kayiyatsa said. "But also we know that Malawi has not executed anybody since the 1990s. So the country needs to continue on that path. But we need a lasting solution. That’s why we think that a way should be found to repeal this death penalty”
The death penalty has long been mandatory in Malawi for those convicted of murder or treason, and optional for rape.
Court records show that 27 people are under a death sentence in Malawi.
However, according to Amnesty International, Malawi last carried out an execution in 1992 when 12 people were hanged.
Lawmaker Dimba noted that many countries are abolishing death penalty.
He said his parliamentary committee would opt for abolishing the death penalty if the proposal came to parliament in the form of a bill.
"This is an issue that was supposed to be done by the government," Dimba said. "If they see to it, they actually bring an amendment bill to parliament and I don’t think parliament would have problems in abolishing the death penalty.”
However, some critics say abolishing the death penalty may lead to an increase in acts of mob justice.
In December 2020, a mob killed a 47-year-old man in Malawi’s capital, Lilongwe, who had allegedly killed another man suspected to have raped his daughter.
