YAS reiterates call for abolition of death penalty in Malawi By staff reporter Youth and Society (YAS) has reiterated its call that the Government of Malawi should remove the death penalty from the country’s laws. YAS said this on Friday in its contribution to a public consultation on the abolition of the death penalty in Malawi. The Ministry of Justice held the consultation meeting in Lilongwe. In its submission, YAS notes that Malawi has international human rights obligations to respect, protect, promote and fulfill for everyone within its jurisdiction, without discrimination. “These human rights include the right to life, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and the right to a fair trial all of which are guaranteed under the Constitution and international law. “Malawi has explicitly accepted obligations in regard to these rights in the international and regional human rights treaties which it has ratified, including the International Covenant on Civil and Political Rights (ICCPR), the First Optional Protocol to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, and the Statute of the International Criminal Court — the latter of which specifically commits signatories to abolishing the death penalty from their penal codes, and the African Charter on Human and Peoples’ Rights (ACHPR),” the submission, presented by YAS Executive Director Charles Kajoloweka, reads, in part. According to the submission, the death penalty was introduced during colonial Nyasaland as a deterrent to uprisings, following the Chilembwe Uprising which resulted in the execution of at least 36 Malawians. Thus, says YAS, the death penalty belongs to the dark past as it was a tool for suppressing the nationalist liberation movement. The organization observes that when Malawi rewrote its Constitution in 1994, the right to life was guaranteed, with Section 16 of the Constitution stating authoritatively that “Every person has the right to life and no person shall be arbitrarily deprived of his or her life”. “As the Ministry is aware, capital punishment was once a mandatory punishment for murder and treason. “In 2007, the constitutionality of the mandatory death penalty for capital offences was questioned in the Francis Kafantayeni and others v the Attorney General (Constitutional Case No 12 of 2005; [2007] MWHC). The High Court ruled that it was unconstitutional to make the death penalty mandatory for murder or treason convictions”. The ruling, YAS reminds, allowed judges to have discretion when deciding on sentences for murder convicts or those convicted of treason. “In deciding on an appropriate sentence in a case, judges were to consider whether or not the inmate had a significant prior criminal record, mental illness, poverty, drug or alcohol intoxication, old age, youth, trauma, or a "sincere belief in witchcraft" at the time of the crime and/or at sentencing. This was the beginning of the re- sentencing project. YAS further reminds that, In April 2020, Malawi courts appeared for a moment to have abolished the death penalty after Supreme Court judge in the case Charles Khoviwa v The Republic (MSCA Miscellaneous Criminal Appeal No 12 of 2017; [2021] MWSC, 28 April 2021) heard the petition of a convicted murderer, and ruled that the death penalty negates the right to life which is otherwise provided for under the Malawi's constitution. “In this judgement the Supreme Court of Appeal held that the right to life was “the mother of all rights”. The court further held that “without the right to life, other rights do not exist” and, therefore, “the death penalty not only negates; it abolishes the right”. “To much surprise, four months later, the Supreme Court issued a statement saying the judge had expressed his personal opinion and the death penalty remained applicable”. YAS adds it is high time Malawi abolishes the death penalty, saying, for a very long time, the country has been abolitionist in theory. “YAS believes that the stakeholders consultation on the death penalty is an opportunity for Malawi to significantly improve its own human rights record, to mark itself out as a progressive force within the region and to align itself with the global trend towards abolishing the death penalty. “Abolition of the death penalty would demonstrate a genuine commitment to protecting the population from an egregious violation of fundamental human rights”. YAS also zeroed in on international and regional scenes, where abolition of the death penalty is reportedly registering great progress and Malawi can learn from. The organization also gave five detailed reasons scandalizing the death penalty, further compelling the Government of Malawi to abolish it. Current statistics show that no known execution has taken place in Malawi since 1994. However, death sentences continue to be imposed. As of 2021, at least 25 people were on death row.

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