The death penalty in Malawi : an assessment against regional and international human-rights standards

• Author: Esther Gumboh
• Pages: 1-32
• Date: 01 December 2018
• DOI: 10.10520/EJC-13bd88ba98
• Published date: 01 December 2018
• Record Number: sapr1_v33_n2_a6

Southern African Public Law

https://doi.org/10.25159/2522-6800/4874

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 2 | 2018 | #4874 | 32 pages

© Unisa Press 2018

Article

The Death Penalty in Malawi: An Assessment against

Regional and International Human-rights Standards

Esther Gumboh

http://orcid.org/0000-0002-9286-6869

Researcher, Centre for Applied Legal Studies, University of the Witwatersrand

Esther.Gumboh@wits.ac.za

Abstract

Despite the global trend towards the abolition of the death penalty, Malawi has

no plans to do so. However, the country is under an obligation to ensure that the

use of the death penalty is restricted in line with regional and international

human-rights law. A survey of the application of the death penalty in Malawi

reveals that while there are some restrictions on its use, the law and practice are

not fully aligned with the regional and international standards. This is

particularly the case with the scope of capital crimes, the right to seek mercy

and the death row phenomenon. Malawi needs to address these shortfalls and

move progressively towards the abolition of the death penalty. The task of this

article is to make known some findings on how Malawi fares in this regard. The

paper first discusses the regional and international human rights standards for

the death penalty then it considers the Malawian Constitution and the

restrictions on the death penalty under Malawian law. It concludes with an

assessment of the extent to which Malawi conforms to international law insofar

as the death penalty is concerned.

Keywords: death penalty; death row; abolition; punishment; capital crimes; fair trial;

pardon; Malawi

2

Introduction

There is an unmissable global trend towards the abolition of the death penalty.

1

In line

with this decline, in 2007 Malawi outlawed the mandatory death penalty for murder in

Kafantayeni v Attorney General.

2

While the death penalty remains on the statute books,

Malawi is a de facto abolitionist state with a twenty four-year unbroken record of no

executions; however, it is unlikely that the death penalty will be abolished in the near

future. Indeed, Malawi ‘has no intentions or immediate plans’ to abolish the death

penalty altogether anytime soon

3

and has therefore not signed the Second Optional

Protocol to the International Covenant on Civil and Political Rights, Aiming at the

Abolition of the Death Penalty.

4

Moreover, the government of Malawi maintains that

public opinion remains in favour of the death penalty.

5

Therefore, the immediate challenge is to ensure that the use of death sentences is

restrained and in line with international and regional human rights standards. The task

of this article is to make known some findings on how Malawi fares in this regard. The

paper first discusses the regional and international human rights standards for the death

penalty. It then considers the Malawian Constitution and the restrictions on the death

penalty under Malawian law. The paper concludes with an assessment of the extent to

which Malawi conforms to international law in as far as the death penalty is concerned.

It is imperative, though, to first indicate the relevance of international law to Malawi.

Relevance of International Law in Malawi

The relevance of international law to Malawi cannot be gainsaid. International law

serves as a general guide to governance

6

and can be used in interpreting the

Constitution.

7

Section 11(2)(c) of the Constitution requires that in appropriate cases

1

For a discussion of developments in Africa, see Andrew Novak, ‘Constitutional Reform and the

Abolition of the Mandatory Death Penalty in Kenya’ (2012) 45 Suffolk University Law Review 285;

Andrew Novak, ‘The Decline of the Mandatory Death Penalty in Common Law Africa: Constitutional

Challenges and Comparative Jurisprudence in Malawi and Uganda’ (2009) 1 Loyola Journal of Public

International Law 19.

2

Kafantayeni v Attorney General [2007] MWHC 1 (HC).

3

See Malawi Human Rights Commission, ‘Annual Report 2013’ (2014) 30; Malawi Human Rights

Commission, ‘Mid-term Progress Report on the Implementation of the United Nations’ (2013) 1;

Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: Malawi’

UN Doc A/HRC/16/4 (4 January 2011) para 105.

4

1642 UNTS 414, 15 December 1989 (hereafter ‘ICCPR’).

5

Human Rights Committee, ‘Consideration of Reports Submitted by States Parties under Article 40 of

the Covenant’ UN Doc CCPR/C/MWI/Q/1/Add.2 (25 June 2014) para 14; Human Rights Committee,

‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant’ UN Doc

CCPR/C/MWI/1 (13 July 2012) para 18.

6

Section 13(k) of the Constitution.

7

Danwood Chirwa, ‘A Full Loaf is Better than Half: The Constitutional Protection of Economic, Social

and Cultural Rights in Malawi’ (2005) 49 (2) Journal of African Law 233.

3

courts must consider international law and comparable foreign case law when

interpreting the Constitution. Courts are also required to have regard to international

human-rights standards in determining whether a limitation on a right is justifiable.

8

Courts can have recourse to international-law standards, regardless of whether they are

binding on or have been ratified by Malawi, including soft-law norms as contained in

general comments, international declarations and charters.

9

In addition, courts may have

regard to jurisprudence emerging from such instruments.

10

The Constitution also

stresses the application of international standards in prison-related matters. Indeed, the

Inspectorate of Prisons, which monitors the conditions, administration and general

functioning of penal institutions,

11

is enjoined to take ‘due account of applicable

international standards’ in exercising its powers.

12

International law is also a source of law in domestic courts. Customary international law

is automatically binding on Malawi, subject only to the Constitution and Acts of

Parliament.

13

Once domesticated, international treaty law is as good as statutory law.

14

The Universal Declaration of Human Rights,

15

the Convention on the Rights of the

Child

16

and all agreements entered into before 1994 have domestic force in Malawi.

17

This includes the African Charter on Human and Peoples’ Rights,

18

the International

Covenant on Civil and Political Rights,

19

the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment,

20

and the African Charter on

8

Section 44(1) of the Constitution.

9

Chirwa (n 7) 233.

10

Danwood Chirwa, Human Rights under the Malawian Constitution (Juta 2011) 27.

11

Section 169(3)(a) of the Constitution.

12

Section 169(1) of the Constitution.

13

Section 211(3) of the Constitution reads: ‘Customary international law, unless inconsistent with this

Constitution or an Act of Parliament, shall form part of the law of the Republic.’

14

Section 211(1). See, generally, Tiyanjana Maluwa, ‘The Role of International Law in the Protection

of Human Rights under the Malawian Co nstitution of 1995’ in African Association of In ternational

Law, African Yearbook of International Law (Brill 1995) 53.

15

GA Res 217A (III), UN Doc A/810 (1948) (hereafter ‘UDHR’).

16

GA Res 44/25 (1989) (hereafter ‘CRC’).

17

See Moyo v Attorney General [2009] MWHC 83 (HC) 6; Malawi Telecommunications Ltd v Makande

and Omar MSCA Civil Appeal No 2 of 2006 (unreported) (HC); Kalinda v Limbe Leaf Civil Cause

No 542 of 1995 (unreported) (HC); Thomas Hansen, ‘Implementation of International Human Rights

Standards through the National Courts in Malawi’ (2002) 31 (1) Journal of African Law 46.

18

OAU Doc CAB/LEG/67/3 Rev 5 (1981) (hereafter ‘African Charter’).

19

GA Res 217A (III), UN Doc A/6316 (1966) (hereafter ‘ICCPR’). Malawi has declined to sign the

Second Optional Protocol to the ICCPR (GA Res 44/128, UN Doc A/44/49 (1989)) , which calls for

the abolition of the death penalty. UDHR provisions now form part of customary international law (see

Filártiga v Peña-Irala, 630 F2d 876 (1980)) and hence automatically binding on Malawi: see Lea

Mwambene, ‘Marriage under African Customary Law in the Face of the Bill of Rights and

International Human Rights Standards in Malawi’ (2010) 10 (1) African Human Rights Law Journal

79.

20

GA Res 39/46, UN Doc A/39/51 (1984) (hereafter ‘CAT’).