The death penalty under the laws of Malawi and the law of human rights

• Published date: 01 January 2009
• DOI: 10.10520/EJC76217
• Author: Msaiwale Chigawa
• Date: 01 January 2009
• Pages: 70-86

THE DEATH PENALTY UNDER THE LAWS

OF MALAWI AND THE LAW OF HUMAN

RIGHTS

Msaiwale Chigawa*

ABSTRACT

The death penalty is relevant to human rights because it affects a person’s

right to life and the right not to be subjected to cruel punishment. Almost all

the main instruments on human rights guarantee these rights. In view of the

importance of these rights, some international instruments have expressly

called upon states to abolish capital punishment, or at least impose stringent

conditions on its use. The Malawian Constitution and criminal laws still

recognise the death penalty, including mandatory death penalty. This

penalty can be imposed for such offences as murder, rape, treason, and armed

robbery. It is argued that these offences will normally not merit the imposition

of this penalty. Fortunately, the Constitutional Court has recently held in the

Kafantayeni case that this penalty cannot be imposed compulsorily by the

courts. Courts have discretion in sentencing and can impose this sentence only

where the aggravating circumstances are extreme. Although Malawians are

still hesitant not to abolish this penalty once and for all, this judgment, and

the fact that no executions have taken place since 1992, make it unnecessary

to still keep this punishment on the statute books.

I INTRODUCTION

The Constitution of 1994 guarantees a wide range of human rights and

fundamental freedoms of the individual.1These include the right to life, which

is non-derogable.2The Constitution also prohibits torture of any kind, or

70 (2009) MLJ VOL.3, ISSUE 1

LLB (Hons) (Mw), LLM(Cantab), DPhil (Oxon). Fellow of the Cambridge Commonwealth

Society; Lecturer, Chancellor College, University of Malawi. This article was written for the

Malawi Law Journal Launch Conference held in Blantyre on 16 17 July 2008.

*

1See Republic of Malawi Constitution of 1994 (came into force on 18 May 1994) especially cap IV

which is entitled ‘Human Rights’ See further Nakununkhe v Chankhumbira and Attorney General

Civil Case No 357 of 1997 (unreported ) where the court held that this Constitution was meant to

be a civilising legislative enactment.

2Seesecs16(1)and44(1)oftheConstitution.

cruel, inhuman or degrading treatment or punishment.3In view of these

provisions, there has been an on-gong debate as to whether the death penalty–

also called capital punishment – is compatible with the country’s

constitutional law.4It is a well known fact that certain crimes, such as murder,

rape and treason, are still punishable by death in Malawi.5This is in spite of the

fact that the current Constitution has been operative for more than 14 years. It

is also in spite of the fact that the country is a party to a number of human

rights instruments that call for the abolition of capital punishment.6

It has been strongly contended that capital punishment is not always the

best way to achieve crime deterrence.7There are better ways in which crime

can be checked. The underlying causes of crime will normally lie outside the

areas of criminal law or criminal sanction. They may be associated with issues

of human rights such as poverty and unemployment. They may be associated

with high levels of school drop-out or lack of education, and child

delinquency. The state should strive to find solutions to these problems. It is

only when this is done that the level of crime in society may be reduced.

It will also be observed that capital punishment is not always compatible

with the law of human rights. In particular, this form of punishment may

negate the right to life. A person may be condemned to death by a court of law

under circumstances where there is a miscarriage of justice. Some of the

crimes for which the penalty is mandatory may not be so ‘serious’ as to justify

its imposition. It is arguable that under these circumstances, a term of

imprisonment would be more appropriate than hanging or beheading the

criminal.

It has further been argued that the death penalty is violative of human

rights because it is cruel and inhuman.8This may be true in so far as certain

THE DEATH PENALTY IN MALAWI 71

3Sec 19. See further Palitu v Rep Criminal Appeal No 30 of 2001 (unreported); Nakununkhe v

Chakhumbira and Attorney General, note 1 above. In the latter case, the court found that the

applicant was subjected to acts of torture by the police.

4See Malawi Law Commission ‘Consultation paper’ (Lilongwe, 2006) 15; Malawi Law

Commission ‘Issues paper’ (Lilongwe, 2006) 12; Malawi Law Commission ‘Human rights under

the Constitution of the Republic of Malawi’ Discussion Paper No 1 (2006) 2 6.

5See Penal Code, Cap 7:01 of the Laws of Malawi, especially secs 38; 132; 133; 109; 110; 306; and

301.

6The most important of these is the International Covenant on Civil and Political Rights

(ICCPR), GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), 999

UNTS 171, entered into force 23 March 23, 1976, acceded to by Malawi on 22 December 1993.

7See generally Human Rights Watch When the state kills: The death penalty versus human rights

(New York: HRW, 1989). This is a comprehensive and thorough discussion of capital

punishment and human rights in the world.

8See Malawi’s Law Commission ‘Human rights under the Constitution of the Republic of

Malawi,’ above note 4, 3; Human Rights Watch, as above, 54.