Death Penalty Database

Malawi

Information current as of: August 29, 2014

General

Official Country Name

Republic of Malawi (Malawi). [1]

Geographical Region

Africa (Eastern Africa). [2]

Death Penalty Law Status

Abolitionist de facto. The last execution took place in 1992. [3]

Methods of Execution

Hanging.
Executions are carried out by hanging in the prison in which the prisoner is detained. [4]

References

[1] BBC, Country Profiles: Malawi Profile, http://www.bbc.com/news/world-africa-13864368, May 21, 2013.
[2] U.N., Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings, http://unstats.un.org/unsd/methods/m49/m49regin.htm, Oct. 31, 2013.
[3] Amnesty Intl., Death Penalty: Countries Abolitionist in Practice, http://www.amnesty.org/en/death-penalty/countries-abolitionist-in-practice, last accessed Aug. 20, 2014.
[4] Malawi Penal Code, sec. 26(1), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.

Country Details

Language(s)

Chichewa and English are both official languages. [1]

Population

15,900,000 (U.N., 2012). [2]

Number of Individuals Currently Under Sentence of Death

There were 29 people on death row as of May 2014. [3]

Annual Number of Reported Executions

Executions in 2017 to date (last updated on June 21, 2017)

0. [4]

Executions in 2016

0. [5]

Per capita execution rate in 2016

Executions in 2015

0. [6]

Per capita execution rate in 2015

0 executions.

Executions in 2014

0. [7]

Per capita execution rate in 2014

0 executions

Executions in 2013

0. [8]

Per capita execution rate in 2013

0 executions.

Executions in 2012

0. [9]

Per capita execution rate in 2012

0 executions.

Executions in 2011

0. [10]

Per capita execution rate in 2011

0 executions.

Executions in 2010

0. [11]

Executions in 2009

0. [12]

Executions in 2008

0. [13]

Executions in 2007

0. [14]

Year of Last Known Execution

1992. [15]

References

[1] BBC, Country Profiles: Malawi Profile, http://www.bbc.com/news/world-africa-13864368, May 21, 2013.
[2] BBC, Country Profiles: Malawi Profile, http://www.bbc.com/news/world-africa-13864368, May 21, 2013.
[3] Sandra Babcock, Clinical Professor of Law, Cornell Law School, Email to DPW, DPW Malawi Doc. E-3, May 5, 2014. Amnesty International, Death Sentences and Executions in 2013, p. 53, ACT 50/001/2014, Mar. 26, 2014.
[4] DPW Executions and Death Sentences Monitor.
[5] Amnesty International, Death sentences and executions in 2016, ACT 50/5740/2017, Apr. 11, 2017.
[6] DPW Executions and Death Sentences Monitor.
[7] Amnesty Intl., Death Sentences and Executions in 2014, ACT 50/001/2015, Mar. 31, 2015.
[8] Amnesty Intl., Death Sentences and Executions in 2013, ACT 50/001/2014, Mar. 26, 2014.
[9] Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013.
[10] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://www.amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[11] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[12] Amnesty International, Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[13] Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 24, 2009.
[14] Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[15] Amnesty Intl., Death Penalty: Countries Abolitionist in Practice, http://www.amnesty.org/en/death-penalty/countries-abolitionist-in-practice, last accessed Aug. 20, 2014.

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Murder.
Section 201 of the Penal Code provides that individuals convicted of murder “shall be liable to be punished with death or with imprisonment for life.” [1]

Rape Not Resulting in Death.
Rape is punishable by death. [2] Under section 132 of the Penal Code, only women and girls can be victims of rape. [3]

Robbery Not Resulting in Death.
Section 301 of the Penal Code provides that robbery is punishable by death if it is committed while “armed with any dangerous of offensive weapon,” while in the company of one or more other persons, or if the offender “wounds, beats, strikes, or uses any other personal violence to any person” immediately before or after the robbery. [4]

Burglary Not Resulting in Death.
Section 309 of the Penal Code provides that burglary is punishable by death. Burglary is a contained within the offense of “housebreaking,” which is more broadly defined as breaking and entering into any structure used as a dwelling with the intent to commit a felony therein. [5]

Treason.
Section 38 of the Penal Code provides that individuals convicted of treason “shall be sentenced to death.” [6]

Military Offenses Not Resulting in Death.
The Military Defence Force Act stipulates that anyone who incites a mutiny or who fails to suppress a mutiny shall be sentenced to death if he did so with the intention of assisting the enemy. [7] Anyone who shares intelligence with the enemy shall be subject to the death penalty. [8] Anyone who commits treason is subject to the death penalty. [9]

Other Offenses Not Resulting in Death.
Section 309 of the Penal Code authorizes the imposition of the death penalty for housebreaking, which is defined as breaking and entering into any building, tent or vessel used as a human dwelling with the intent to commit a felony therein. [10]

Comments.
Although the Penal Code provides for the death penalty for rape, robbery, housebreaking and treason in addition to murder, every prisoner sentenced to death since 1995 has been convicted of murder. [11]

Does the country have a mandatory death penalty?

No. A 2011 amendment to the Penal Code repealed the Penal Code’s previous requirement that the death penalty be imposed for murder and treason. [12] The Amendment reconciled the Code with the Malawi High Court’s Kafantayeni decision of 2007, which struck down the mandatory death penalty as unconstitutional, bringing judicial discretion into sentencing for the offenses of murder and treason. [13] Since the High Court’s decision, courts have imposed a wide range of sentences for murder, including the death penalty. [14] Although judges no longer impose the mandatory death penalty, as of April 2014 only one of the approximately 192 prisoners who were given mandatory death sentences prior to 2007 has been resentenced. [15]

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

Malawi does not have a mandatory death penalty. The High Court deemed it unconstitutional in Kafantayeni and Others v. Attorney General and the 2011 amendment to the Penal Code reflects that decision. [16]

Crimes For Which Individuals Have Been Executed Since January 2008:

None. No offenders have been executed in Malawi since 1992. [17]

Categories of Offenders Excluded From the Death Penalty:

Individuals Below Age 18 At Time of Crime.
Malawi prohibits the application of the death penalty to individuals who were under the age of 18 at the time the offense was committed. [18] This conforms with Malawi’s international obligations as a party to the ICCPR, [19] the Convention on the Rights of the Child, [20] and the African Charter on the Rights and Welfare of the Child, [21] which prohibit the execution of individuals for crimes committed while under the age of 18.

Pregnant Women.
Section 26(4) of the Penal Code provides that where a woman is convicted of an offense punishable by death, and is found to be pregnant, the sentence shall be life. [22] This conforms with Malawi’s international obligations as a party to the ICCPR [23] and the Protocol on the Rights of Women attached to the African Charter on Human and People’s Rights, [24] which prohibit the execution of pregnant women.

Mentally Ill.
According to section 12 of the Penal Code, “[a] person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.” [25] This provision, however, does not apply to individuals who become mentally ill during the course of their detention, and for that reason does not necessarily prohibit the execution of those who are insane. [26]

References

[1] Malawi Penal Code, sec. 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[2] Malawi Penal Code, secs. 132-133, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[3] Malawi Penal Code, sec. 132, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[4] Malawi Penal Code, secs. 300-301, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[5] Malawi Penal Code, sec. 309, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[6] Malawi Penal Code, sec. 38, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[7] Military Defence Force Act, sec. 40, 2004. Military Defence Force Act, sec. 41, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[8] Military Defence Force Act, sec. 34, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[9] Military Defence Force Act, sec. 34, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[10] Malawi Penal Code, sec. 309, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[11] Sandra Babcock, Clinical Professor of Law, Cornell Law School, Email to DPW, DPW Malawi Doc. E-2, Aug. 29, 2014.
[12] Malawi Penal Code, secs. 38, 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 182, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[13] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007.
[14] Center for Capital Punishment Studies, Malawi Homicide Trials Conducted by Legal Aid Lilongwe September 2009-2010, DPW Malawi Doc. M-2.
[15] Sandra Babcock, Clinical Professor of Law, Cornell Law School, Email to DPW, DPW Malawi Doc. E-2, Aug. 29, 2014.
[16] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007. Malawi Penal Code, secs. 38, 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 182, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[17] Amnesty Intl., Death Penalty: Countries Abolitionist in Practice, http://www.amnesty.org/en/death-penalty/countries-abolitionist-in-practice, last accessed Aug. 20, 2014.
[18] Malawi Penal Code, sec. 26(2), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[19] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Aug. 20, 2014.
[20] Status, Declarations, and Reservations, Convention on the Rights of the Child, 1577 U.N.T.S. 3, http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-11&chapter=4&lang=en#Participants, last accessed Aug. 20, 2014.
[21] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Jun. 18, 2014.
[22] Malawi Penal Code, sec. 26(4), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[23] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Apr. 8, 2014.
[24] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Aug. 20, 2014.
[25] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[26] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.

International Commitments

ICCPR

Party?

Yes. [1]

Date of Accession

December 22, 1993. [2]

Signed?

No. [3]

Date of Signature

Not Applicable.

First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee

Party?

Yes. [4]

Date of Accession

June 11, 1996. [5]

Signed?

No. [6]

Date of Signature

Not Applicable.

Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty

Party?

No. [7]

Date of Accession

Not Applicable.

Signed?

No. [8]

Date of Signature

Not Applicable.

American Convention on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Death Penalty Protocol to the ACHR

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

African Charter on Human and Peoples' Rights (ACHPR)

Party?

Yes. [9]

Date of Accession

November 17, 1989. [10]

Signed?

Yes. [11]

Date of Signature

February 23, 1990. [12]

Protocol to the ACHPR on the Rights of Women in Africa

Party?

Yes. [13]

Date of Accession

May 20, 2005 [14]

Signed?

No. [15]

Date of Signature

Not Applicable.

African Charter on the Rights and Welfare of the Child

Party?

Yes. [16]

Date of Accession

September 16, 1999. [17]

Signed?

Yes. [18]

Date of Signature

July 13, 1999. [19]

Arab Charter on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

2016 Record of Votes on the UN General Assembly Moratorium Resolution

Vote

In Favor. [20]

2014 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [21]

Vote

Abstained. [22]

Signed the Note Verbale of Dissociation

No. [23]

2012 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [24]

Vote

Abstained. [25]

Signed the Note Verbale of Dissociation

No. [26]

2010 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [27]

Vote

Abstained. [28]

Signed the Note Verbale of Dissociation

No. [29]

2008 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [30]

Vote

Abstained. [31]

Signed the Note Verbale of Dissociation

No. [32]

2007 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [33]

Vote

Abstained. [34]

Signed the Note Verbale of Dissociation

No. [35]

References

[1] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Aug. 20, 2014.
[2] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Aug. 20, 2014.
[3] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed Aug. 20, 2014.
[4] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Aug. 20, 2014.
[5] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Aug. 20, 2014.
[6] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en, last accessed Aug. 20, 2014.
[7] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Aug. 20, 2014.
[8] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en, last accessed Aug. 20, 2014.
[9] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Aug. 20, 2014.
[10] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Aug. 20, 2014.
[11] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Aug. 20, 2014.
[12] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on Human and People’s Rights, http://www.achpr.org/instruments/achpr/ratification, last accessed Aug. 20, 2014.
[13] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Aug. 20, 2014.
[14] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Aug. 20, 2014.
[15] African Commission on Human and Peoples’ Rights, Ratification Table: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, http://www.achpr.org/instruments/women-protocol/ratification, last accessed Aug. 20, 2014.
[16] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Aug. 20, 2014.
[17] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Aug. 20, 2014.
[18] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Aug. 20, 2014.
[19] African Commission on Human and Peoples’ Rights, Ratification Table: African Charter on the Rights and Welfare of the Child, http://www.achpr.org/instruments/child/ratification, last accessed Aug. 20, 2014.
[20] U.N.G.A., 71st Session, Recorded Vote on A/C.3/71/L.27 Moratorium on the Use of the Death Penalty, Nov. 17, 2016.
[21] U.N.G.A., 69th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 141, 144, U.N. Doc. A/69/488/Add.2, Dec. 8, 2014.
[22] U.N.G.A., 69th Session, 73rd Plenary Meeting, pp. 17-18, U.N. Doc. A/69/PV.73, Dec. 18, 2014.
[23] U.N.G.A., 69th Session, Note Verbale dated 28 July 2015, U.N. Doc. A/69/993, Jul. 29, 2015.
[24] U.N.G.A., 67th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 95-96, U.N. Doc. A/67/457/Add.2, Dec. 8, 2012.
[25] U.N.G.A., 67th Session, 60th Plenary Meeting, pp. 16-17, U.N. Doc. A/67/PV.60, Dec. 20, 2012.
[26] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[27] U.N.G.A., 65th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, p. 5, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010.
[28] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18-19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[29] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. A/65/779, Mar. 11, 2011.
[30] U.N.G.A., 63rd session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[31] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16- 17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[32] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[33] U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[34] U.N.G.A., 62nd Session, 76th Plenary Meeting, p. 17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[35] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, U.N. Doc. A/62/658, Feb. 2, 2008.

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

Chapter IV, section 16 of the Constitution provides for a right to life, but specifically recognizes that “the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.” [1]

Does the country’s constitution make reference to international law?

The Constitution references international human rights agreements and standards in multiple areas:

Chapter II of the Constitution provides that when interpreting the provisions of the constitution a court of law shall “where applicable, have regard to current norms of public international law and comparable foreign case law.” [2]

Section 44 of Chapter IV of the Constitution stipulates “Without prejudice to subsection (1), no restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.” [3]

Section 45 of Chapter IV provides that derogations are permissible during a state of emergency to the extent that they are not inconsistent with Malawi’s obligations under international law. [4]

Section 212 under Chapter XXI of the Constitution states that any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if provided for in the Act of Parliament ratifying the agreement. [5]

Have there been any significant changes in the application of the death penalty over the last several years?

In 2007, the Malawi High Court struck down the mandatory death penalty in Kafantayeni and Others v. Attorney General. [6] The court deemed the mandatory death penalty to be unconstitutional because it amounts to an arbitrary deprivation of life, violates the right to a fair trial, and violates the right to be free from cruel and inhumane treatment. [7] The Supreme Court of Appeal affirmed the Kafantayeni judgment in Jacob v. The Republic. [8] Since Kafantayeni, the Supreme Court of Appeal has directed courts to consider “the manner in which the murder was committed, the means used to commit the offence, the personal circumstance of the victim, the personal circumstances of the accused and what might have motivated in the commission of the crime,” in deciding whether to pass a sentence of death. [9] The 2011 amendment of the Penal Code reflects the change from a mandatory to discretionary system of death penalty application, making death sentences for individuals convicted of murder or treason discretionary. [10]

Pursuant to the Kafantayeni decision, over 180 prisoners are entitled to be resentenced. But as of April 2014, only one prisoner (Mr. Kafantayeni) was resentenced. [11] None of the other prisoners have actually had a resentencing hearing. [12] The Supreme Court of appeal has upheld the imposition of a mandatory death sentence in 13 of the 18 death penalty appeals that have been brought since 2007. [13]

The Kafantayeni decision has, however, had a substantial impact on the passing of new sentences. One report indicates that substantially fewer defendants convicted of murder are receiving the death penalty than before the judgment. [14] Nevertheless, these strides forward are frustrated by the realities of practicing mitigation investigation in Malawi. “Investigating a defendant’s family history would typically require travelling to remote villages on unpaved roads. Transporting witnesses to court is equally difficult, since Legal Aid attorneys often lack both private transportation and funding to pay for public transportation.” [15] For these reasons, mitigation investigation and argument are not well developed in the majority of cases. [16]

Is there currently an official moratorium on executions within the country?

There is no official moratorium, but no executions have been carried out since 1992. [17] A previous president, Bakili Muluzi, commuted death sentences on a periodic basis. [18] The last reported mass commutation was in 2004 when President Muluzi commuted the death sentences of 79 prisoners to life imprisonment. [19] In 2012, President Joyce Banda pardoned 377 prisoners, none of whom were sentenced to death. [20]

Have there been any significant published cases concerning the death penalty in national courts?

In 2007, the Malawi High Court struck down the mandatory death penalty in Kafantayeni and Others v. Attorney General. [21] The court deemed the mandatory death penalty to be unconstitutional because it amounts to an arbitrary deprivation of life, violates the right to a fair trial, and violates the right to be free from cruel and inhumane treatment. [22] The Supreme Court of Appeal affirmed the Kafantayeni judgment in Jacob v. The Republic. [23] In Chimenya v. The Republic, the Supreme Court of Appeal directed courts to consider “the manner in which the murder was committed, the means used to commit the offence, the personal circumstance of the victim, the personal circumstances of the accused and what might have motivated in the commission of the crime,” in deciding whether to pass a sentence of death. [24]

Where can one locate or access judicial decisions regarding the death penalty?

Civil and criminal judgments are made available by the Malawi judiciary at http://www.judiciary.mw/index.php?option=com_phocadownload&view=category&id=2:civil-cases&Itemid=168.

Selected decisions by the High Court and Supreme Court in criminal matters are made available by the Malawi Legal Information Institute at http://www.malawilii.org.

The Southern Africa Litigation Centre is in the process of creating a database of significant judicial decisions for Malawi, which is available at http://www.southernafricalitigationcentre.org/library/search. While a search conducted in June 2014 did not yield any jurisprudence relating to the death penalty, the site did contain a number of decisions regarding prisoners’ rights and women’s rights.

The South African Legal Information Institute has a database of judicial decisions for Malawi, which is available at http://www.saflii.org/cgi-bin/search.pl. A search conducted in June 2014 did not yield any jurisprudence relating to the death penalty.

What is the clemency process?

After a death sentence has been confirmed on appeal, the presiding judge shall forward to the president a copy of notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observation on the case that he sees fit to make. [25] Clemency decisions shall only be taken in consultation with an advisory committee. [26] The president appears to have unfettered power to commute the death sentence or to pardon the offender.

Are jury trials provided for defendants charged with capital offenses?

Under Section 294 of the Criminal Procedure and Evidence code, all criminal trials before the high court shall be by jury. A jury is composed of 12 persons. [27] Nevertheless, the Minister may order that any class of cases shall be triable without a jury. [28] Such an order is currently in effect, and jury trials are not available for individuals charged with capital crimes in Malawi. [29] Due to the cost of selecting and paying jurors, jury trials in homicide cases were discontinued in 2009. [30]

Brief Description of Appellate Process

The Supreme Court of Appeal, the highest appellate court, and the High Court are established separately under the Constitution of Malawi. [31] The Supreme Court of Appeal has jurisdiction to hear appeals from the High Court and any other courts that an Act of Parliament prescribes. [32] As such, the Supreme Court of Appeal’s jurisdiction is exclusively appellate. The High Court has original jurisdiction to “determine any civil and criminal proceedings under any law.” [33] Magistrate Courts are subordinate to the High Court and are prescribed by an Act of Parliament. [34] In Malawi, capital murder trials are held before a single High Court judge who determines guilt and imposes sentence. [35]

Anyone sentenced to death has the right to appeal, [36] and appeal is made to the Supreme Court. [37] The reality, however, is that the right to appeal is illusory. Prisoners often file appeals pro se. [38] Legal Aid attorneys fail to properly track cases on appeal and case files frequently go missing. [39] One report indicates, “as of January 2012, no appeals had been filed for 11 prisoners sentenced to death during 2005-2009.” [40] Professor Sandra Babcock of Cornell Law School estimates that the cases of at least half of the nearly 200 individuals who were sentenced to death from 1994-2007 were never reviewed on appeal. [41]

References

[1] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 16, May 18, 1994, as amended through to 2010.
[2] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 11, May 18, 1994, as amended through to 2010.
[3] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 44, May 18, 1994, as amended through to 2010.
[4] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 44, May 18, 1994, as amended through to 2010.
[5] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 212, May 18, 1994, as amended through to 2010.
[6] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007.
[7] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 182, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[8] Jacob v. The Republic, MSCA Crim. App. No. 18 of 2006, Sup. Ct. of App. at Blantyre, 2007.
[9] Chimenya v. The Republic, p. 5, MSCA Crim. App. No. 8 of 2006, Sup. Ct. of App. at Blantyre, 2009.
[10] Malawi Penal Code, secs. 38, 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 182, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[11] Sandra Babcock, Clinical Professor of Law, Cornell Law School, Northwestern University, Email to DPW, DPW Malawi Doc. E-2, Aug. 29, 2014.
[12] Emile Carreau, Malawi-Five Years After Abolishing the Mandatory Death Penalty, World Coalition Against the Death Penalty, http://www.worldcoalition.org/Malawi---five-years-after-abolishing-the-mandatory-death-penalty.html, Sep. 19, 2012.
[13] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 196, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[14] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 195, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[15] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 195, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[16] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 195, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[17] Amnesty Intl., Death Penalty: Countries Abolitionist in Practice, http://www.amnesty.org/en/death-penalty/countries-abolitionist-in-practice, last accessed Aug. 20, 2014.
[18] Amnesty Intl., Malawi: Amnesty International Welcomes Suspension of Executions and Commutation of Death Sentences, AFR 36/03/97, July 23, 1997; IOL News, Easter Pardons for 79 Death Row Prisoners, http://www.iol.co.za/news/africa/easter-pardons-for-79-death-row-prisoners-1.210157, Apr. 9, 2004.
[19] IOL News, Easter Pardons for 79 Death Row Prisoners, http://www.iol.co.za/news/africa/easter-pardons-for-79-death-row-prisoners-1.210157, Apr. 9, 2004.
[20] Malawi Today, Joyce Banda Released Rapist Relative, http://www.malawitoday.com/news/126976-joyce-banda-released-rapist-relative, Oct. 6, 2012.
[21] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007.
[22] Kafantayeni and Others v. Attorney General, Constitutional Case No. 12 of 2005, High Court, 2007. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 182, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[23] Jacob v. The Republic, MSCA Crim. App. No. 18 of 2006, Sup. Ct. of App. at Blantyre, 2007.
[24] Chimenya v. The Republic, p. 5, MSCA Crim. App. No. 8 of 2006, Sup. Ct. of App. at Blantyre, 2009.
[25] Malawi Criminal Procedure and Evidence Code, sec. 326, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[26] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 89(2), May 18, 1994, as amended through to 2010.
[27] Malawi Criminal Procedure and Evidence Code, sec. 294(1), Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[28] Malawi Criminal Procedure and Evidence Code, sec. 294(2), Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[29] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Denial of Fair Public Trials, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[30] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, pp. 192-193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[31] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, secs. 104(1), 108(1), May 18, 1994, as amended through to 2010.
[32] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 104, May 18, 1994, as amended through to 2010.
[33] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 108(1), May 18, 1994, as amended through to 2010.
[34] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 110(1), May 18, 1994, as amended through to 2010.
[35] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[36] Malawi Criminal Procedure and Evidence Code, sec. 324, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[37] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[38] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-4, Jul. 26, 2014.
[39] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[40] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[41] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-4, Jul. 26, 2014.

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Death-sentenced prisoners are incarcerated at Zomba Maximum Security Prison in Zomba, a city in southern Malawi. [1]

Description of Prison Conditions

Prison conditions in Malawi were described by one source as “harsh and potentially life threatening.” [2] While protecting prisoners’ rights to education and access to justice has reportedly improved in the Malawi prison system, “lack of space leading to overcrowding and poor infrastructure” are gaps that need to be addressed. [3]

According to a 2010 report, overcrowding is rampant. In some prisons, detainees must sleep in shifts due to lack of space. In others, they must sleep in rows, laying on their sides, head to foot. In most prisons the detainees sleep on the floor. They are locked in their cellblocks from roughly 4 p.m. until 6 a.m. During that time, up to 200 men will share a single bucket as a toilet. Tuberculosis is rife, and there are reports that prisoners have been sexually abused by other inmates. [4] In 2011, it was reported that although the official prison capacity in Malawi was 5000, the prisons were holding 11,632 people. Reports published in 2013 describe the overcrowded condition of Malawi’s prisons. Inmates are reportedly packed into cells, where 150 men are forced to sleep in a cell designed for 50 men. [5]

Prisoners suffer from insufficient nutrition. In 2010, one group reported that “[t]he men generally eat one meal per day, and they often split their lunch portion in two to reserve food for dinner. The prison suffers from an occasional but regular shortage of food and/or electricity; when this happens, the men do not receive their meals.” [6] Recently, prisons across the country have run out of food because of budgeting and rising food prices. In 2013, the government cut the prison food budget in half, resulting in even worse food shortages. Reports indicate that prisoners are served one meal of n’sima a day. [7] In March 2013, Maula Prison was depleted of all fiscal resources and did not have food for prisoners. [8]

The budgetary restrictions have also affected hygiene. In 2013, the Centre for Legal Assistance discovered that one prison in Malawi did not provide access to disinfectants like soap and chlorine for two months due to budget restraints. [9]

Tuberculosis and HIV both spread easily through prisons. Prisons prohibit condoms and it has been reported that tuberculosis has infected up to 60% of the prison population. [10] Between January and September 2013, thirty-eight inmates died in prison from tuberculosis, pneumonia, HIV/AIDS, diarrhea, and inadequate diet. [11]

In 2014, A Human Rights Defenders group in Malawi requested that the UN Special Rapporteur on Prisons conduct an inspection and assessment of the problems faced by the prison system. They noted that “shortage of food in prisons, congestion and lack of adequate medical care raises concerns about the welfare of all prisoners particularly those on Antiretroviral Treatment.” [12]

Prisoners on death row are subjected to equally harrowing conditions. The Center for International Human Rights at Northwestern University School of Law sent a delegation to Zomba Maximum Security Prison in November 2009 to interview death row prisoners and ascertain the conditions. They reported:

“The cell block housing the condemned prisoners consists of cells roughly 8x6 feet, and approximately 10 feet high. Each cell contains one window that is no more than one square foot in size, and which is located at the top of the door that provides the only ventilation to the cell. The door is thick wood reinforced with metal bars. Each cell is lit by one light bulb that remains on all night.

Each prisoner is given two blankets; generally, they sleep on one blanket and cover up with the second. Most cells hold two men but some hold three. The men generally sleep in a U shape, where two sleep along the length of the cell, and the third along the far wall. The men are put into their cells between 4:00 - 5:00pm and are released between 6:00 -7:00am the following day. The condemned prisoners have their own small courtyard area outside of their cells, at the end of which is the gallows that would be used for their executions. The courtyard extends the length of the cellblock, and is approximately 20’x60’. It is not big enough for playing football (soccer). At the end of the cellblock, across from the gallows, are three showers and three toilets that are shared by all of the men on death row, as well as a few prisoners who were being housed on death row (as punishment or as a security measure, it was not quite clear) . . .

. . . The condemned men are nearly always kept separate from the other prisoners. The men are not given access to the (high school) classes or occupational training offered to other prisoners. Some of the men do have books; bibles are provided by an NGO to whoever wants one.” [13]

Are there any known foreign nationals currently under sentence of death?

According to the Mozambican Human Rights League, there were six Mozambicans on death row as of May 2010. [14] We do not know if they are still on death row.

What are the nationalities of the known foreign nationals on death row?

According to the Mozambican Human Rights League, there were six Mozambicans on death row as of May 2010. [15] We do not know if they are still on death row.

Are there any known women currently under sentence of death?

No. As of August 2014, there were no women on death row. [16]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

No. As of August 2014, there were no juveniles on death row. [17]

Malawi prohibits the application of the death penalty to individuals who were under the age of 18 at the time the offense was committed. [18] According to Amnesty International, no juveniles have been executed since 1990, when it started keeping records. [19]

Although no juvenile offenders have been executed, Northwestern University’s Center for International Human Rights identified at least three juvenile offenders who were given mandatory death sentences in the 1990s. Although their sentences were commuted to life imprisonment, they remain in a maximum security prison. [20]

Comments regarding the racial/ethnic composition on death row

It is not apparent that there are racial or ethnic disparities among those who are sentenced to death in Malawi. [21]

Are there lawyers available for indigent defendants facing capital trials?

Accused persons have a constitutionally guaranteed right to be represented by a legal practitioner of his/her choice and at the state’s expense when “it is required in the interests of justice.” [22] Defendants also have the constitutional right to be informed of the right to legal representation. [23] In practice the government generally only provides lawyers to defendants in homicide crimes. [24] Still, everyone sentenced to death in Malawi that has been convicted of murder was provided with a government-funded lawyer. [25]

Are there lawyers available for indigent prisoners on appeal?

Accused persons have a constitutionally guaranteed right to be represented by a legal practitioner of his/her choice and at the state’s expense when “it is required in the interests of justice.” [26] Defendants also have the constitutional right to be informed of the right to legal representation. [27] The reality, however, is that the right to appeal is illusory. Legal Aid attorneys fail to properly track cases on appeal and case files frequently go missing. [28] Prisoners often file their appeals pro se. [29] One report indicates, “as of January 2012, no appeals had been filed for 11 prisoners sentenced to death during 2005-2009.” [30] Professor Sandra Babcock of Cornell Law School estimates that the cases of at least half of the nearly 200 individuals who were sentenced to death from 1994-2007 were never reviewed on appeal. [31]

Every person sentenced to death has the right to appeal. [32] In practice, however, there is no effective system for tracking appeals, and they can be delayed for years or denied altogether as a result of bureaucratic inefficiency. [33] One report indicates that as of January 2012, no appeals had been filed for 11 prisoners sentenced to death between 2005 and 2009. [34]

Comments on Quality of Legal Representation

There are not enough legal aid lawyers to meet the demand in Malawi, and the quality of representation is generally very poor. [35] In 2013, there were only 18 lawyers and 16 paralegals working as public defenders throughout the country. [36] Legal Aid advocates are responsible for both civil and criminal cases. [37] Due to high demand and understaffing, advocates have difficulty finding time to visit criminal clients. [38] Accordingly, clients often meet their Legal Aid lawyers on the day of trial. [39] All of the death row prisoners interviewed by the International Center for Human Rights at Northwestern University in November 2009 stated that they had met with their lawyer only briefly before the start of trial. [40]

Legal aid lawyers are frequently hired directly from law school and lack sufficient training. They typically spend one to two years at the office in order to hone their trial skills before leaving for private practice. [41] In 2011, 16 of the lawyers were junior and there was an average turnover period of nine months. [42] High turnover is due in part to the low salary a starting Legal Aid attorney can expect: $300 per month. [43] Private practice provides a more lucrative alternative. [44]

The Ministry of Justice has a cooperation agreement with paralegals to provide legal aid services in police stations, prisons and courts. [45] Paralegals work for separate non-governmental organizations but are coordinated by the Paralegal Advisory Service Institute. [46]

Other Comments on Criminal Justice System

The criminal justice system in Malawi is underfunded and inefficient. The justice system in Malawi is heavily funded by foreign aid. [47] Due to the cost of selecting and paying jurors, jury trials in homicide cases were discontinued in 2009. [48]

Malawi faces an extraordinary backlog of cases (including homicide case), which can be blamed for much of the prison overcrowding in the country. [49] Accused persons can spend years imprisoned, awaiting trial on remand. [50] Furthermore, prisoners rarely have bail hearings, which results in pre-trial detentions that can last up to ten years. [51] Overcrowding is rampant. The excesses of pre-trial detention in Malawi are a by-product of the lack of an efficient case management system. [52]

Detainees are regularly held longer than the 48 hours that is legally permitted. [53] They are often held in police stations. In 2011, for example, 87 detainees were found detained at Lilongwe Police Station. [54] When they are held in jails, pre-trial detainees are housed alongside convicted prisoners. [55] Detainees are also denied their right to challenge the legality of their detention, access legal representation, and be released on bail within 48 hours of their detention, as required by law. [56]

Due to the insufficient number of attorneys practicing in and underfunding of the public sector, prisoners will often meet their lawyer for the first time on the day of trial. [57] Witnesses for the defense are rarities in criminal trials. [58] Similar observations have been made by other organizations and journalists. [59] Reports indicate that witnesses on behalf of defendants are rare occurrences and that forced confessions through physical abuse are known to occur. [60] “Remandee” case files are often lost, leaving these prisoners in legal limbo. [61]

In its submission to the UN Universal Period Review, the Center for Human Rights and Rehabilitation noted instances of torture and treatment that violate human rights in the excessive force members of the criminal justice system used against criminal suspects. That same submission critiqued the deplorable prison conditions in Malawi. [62]

References

[1] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[2] U.S. Dept. of State, 2013 Human Rights Reports: Malawi, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[3] Malawi prison conditions still worse: 79 inmates die due to crowding, police brutality – report, Nyasa Times, http://www.nyasatimes.com/2013/04/30/malawi-prison-conditions-still-worse-79-inmates-die-due-to-crowding-police-brutality-report/, Apr. 30, 2013.
[4] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[5] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[6] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[7] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[8] Malawi prison run out of food, Malawi Today, http://www.malawitoday.com/news/128444-malawi-prisons-run-out-food, Mar. 5, 2013.
[9] Aliko Munde, Malawi: Nkhata Bay Inmates Bathe Without Soap for Two Months, Malawi News Agency, http://allafrica.com/stories/201306090119.html, Jun. 7, 2013.
[10] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[11] U.S. Depart. of State, 2013 Human Rights Report: Malawi, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[12] Activists ask UN Special Rapporteur to inspect Malawi Prisons, Nyasa Times, http://www.nyasatimes.com/2014/01/04/activists-ask-un-special-rapporteur-to-inspect-malawi-prisons/comment-pagE-1, Jan. 4, 2014.
[13] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[14] AllAfrica.com, Mozambique: Government Urged to Prevent Executions in Malawi, http://allafrica.com/stories/201005211063.html, May 21, 2010.
[15] AllAfrica.com, Mozambique: Government Urged to Prevent Executions in Malawi, http://allafrica.com/stories/201005211063.html, May 21, 2010.
[16] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-5, Aug. 25, 2014.
[17] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-5, Aug. 25, 2014.
[18] Malawi Penal Code, sec. 26(2), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2012.
[19] Amnesty Intl., Executions of Juveniles Since 1990, http://www.amnesty.org/en/death-penalty/executions-of-child-offenders-sincE-1990, last accessed Jun. 24, 2014.
[20] Mtambo, Dzimbiri, & Lemani v. R., Appellants’ Brief, High Court of Malawi, 2012.
[21] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[22] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 42 (2)(f)(5), May 18, 1994, as amended through to 2010.
[23] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 42 (2)(f)(5), May 18, 1994, as amended through to 2010.
[24] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Denial of Fair Public Trials, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014. Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010. Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, pp. 192-193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[25] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-4, Jul. 26, 2014. Sandra Babcock, Clinical Professor of Law, Cornell Law School, Email to DPW, DPW Malawi Doc. E-2, Aug. 29, 2014.
[26] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 42 (2)(f)(5), May 18, 1994, as amended through to 2010.
[27] Republic of Malawi (Constitution) Act, Act No. 20 of 1994, sec. 42 (2)(f)(5), May 18, 1994, as amended through to 2010.
[28] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[29] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-4, Jul. 26, 2014.
[30] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[31] Sandra Babcock, Clinical Professor of Law, Cornell University, Email to DPW, DPW Malawi Doc. E-4, Jul. 26, 2014.
[32] Malawi Criminal Procedure and Evidence Code, sec. 324, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[33] U.S. Dept. of State, 2009 Human Rights Reports: Malawi, Denial of Fair Public Trial, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135963.htm, Mar. 11, 2010.
[34] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[35] Fidelis Edge Kanyongolo, Malawi: Justice Sector and the Rule of Law, pp. 112-13,Open Society Foundation, 2006. U.N.G.A. Human Rights Council, Summary Prepared by the Office of the High Commissioner for Human Rights in Accordance with paragraph 15(c) of the Annex to Human Rights Council Resolution 5/1, p. 5, U.N. Doc. A/HRC/WG.6/9/MWI/3, Aug. 10, 2010.
[36] U.S. Dept. of State, 2013 Human Rights Reports: Malawi, Arbitrary Arrest or Detention, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[37] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[38] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[39] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[40] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[41] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[42] United Nations Office on Drugs and Crime, Access to Legal Aid in Criminal Justice Systems in Africa, p. 10, https://www.unodc.org/pdf/criminal_justice/Survey_Report_on_Access_to_Legal_Aid_in_Africa.pdf, Apr. 2011.
[43] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[44] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[45] United Nations Office on Drugs and Crime, Access to Legal Aid in Criminal Justice Systems in Africa, p. 11, https://www.unodc.org/pdf/criminal_justice/Survey_Report_on_Access_to_Legal_Aid_in_Africa.pdf, Apr. 2011.
[46] United Nations Office on Drugs and Crime, Access to Legal Aid in Criminal Justice Systems in Africa, p. 26, https://www.unodc.org/pdf/criminal_justice/Survey_Report_on_Access_to_Legal_Aid_in_Africa.pdf, Apr. 2011.
[47] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 192, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[48] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, pp. 192-193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[49] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[50] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[51] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[52] Louise Ehlers, Pre-trial detention in Malawi, Open Society Initiative for Southern Africa, http://www.osisa.org/open-learning/law/malawi/pre-trial-detention-malawi, Nov. 23, 2011.
[53] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[54] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[55] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Prison and Detention Center Conditions, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[56] U.S. Dept. of State, 2013 Human Rights Report: Malawi, Arrest Procedures and Treatment of Detainees, http://www.state.gov/j/drl/rls/hrrpt/2013/af/220132.htm, Feb. 27, 2014.
[57] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[58] Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, p. 193, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.
[59] Fidelis Edge Kanyongolo, Malawi: Justice Sector and the Rule of Law, pp. 123-26, Open Society Foundation, 2006; Michael Wines, The Forgotten of Africa, Wasting Away in Jails Without Trial, A1, New York Times, Nov. 6, 2005; U.S. Dept. of State, 2009 Human Rights Reports: Malawi, Denial of Fair Public Trial, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135963.htm, Mar. 11, 2010.
[60] Toby Collis, Boxten: and the tragic impact of Malawi’s broken justice system, Open Democracy, http://www.opendemocracy.net/toby-collis/boxten-and-tragic-impact-of-malawi’s-broken-justice-system, Oct. 23, 2013.
[61] Center for International Human Rights, Northwestern University School of Law, Report on Malawi’s Death Row, DPW Malawi Doc. M-1, Jun. 15, 2010.
[62] Centre for Human Rights and Rehabilitation, Malawi: Submission to the UN Universal Periodic Review, p. 4, Apr. 2010.

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

The Human Rights Committee last reviewed Malawi’s compliance with the International Covenant on Civil and Political Rights on October 25, 2011. Malawi failed to honor its reporting obligations but did send a delegation to the Committee for its review. [1] The Committee praised Malawi for its moratorium on the application of the death penalty but was concerned about the fact that the death penalty continues to be legal. [2] Similarly, it praised Malawi for deeming the mandatory death penalty unconstitutional but regretted that the mandatory death penalty was still prescribed by the Penal Code. [3] Additionally, the Committee noted concern about the overcrowded and unsanitary conditions of Malawi’s prisons. It commented that inmates had died on account of the poor quality of the prison health system. [4]

Decisions of Other Human Rights Bodies

In 2010, Malawi’s human rights record was reviewed by the Human Rights Council as part of the Universal Periodic Review process. Malawi stated that its Constitution protected the right to life and that no-one could be arbitrarily deprived of life, except through the execution of a death sentence imposed by a court of competent jurisdiction. It added that the High Court had ruled the mandatory death penalty contrary to the right to life. [5] Malawi rejected recommendations that it enact a de jure moratorium on the death penalty with a view to its final abolition. [6]

References

[1] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Malawi, para. 2, U.N. Doc. CCPR/C/MWI/CO/1, Jun. 18, 2012.
[2] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Malawi, para. 10, U.N. Doc. CCPR/C/MWI/CO/1, Jun. 18, 2012.
[3] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Malawi, para. 2, U.N. Doc. CCPR/C/MWI/CO/1, Jun. 18, 2012.
[4] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Malawi, para. 2, U.N. Doc. CCPR/C/MWI/CO/1, Jun. 18, 2012.¬
[5] U.N.G.A. Human Rights Council, Report of the Working Group on the Universal Periodic Review: Malawi, para. 13, U.N. Doc. A/HRC/16/4, Jan. 4, 2011.
[6] U.N.G.A. Human Rights Council, Report of the Working Group on the Universal Periodic Review: Malawi, paras. 105.12-105.13, U.N. Doc. A/HRC/16/4, Jan. 4, 2011.

Additional Sources and Contacts

Direct member(s) of World Coalition Against the Death Penalty

None.

Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty

Malawi Human Rights Commission
H.B. House
Off Paul Kagame Road
Private Bag 378 Private
Capital City, Lilongwe 3
Malawi
Tel: +265 1-750-900/958/954
info@malawihrc.org
www.hrcmalawi.org

Death Penalty Project
8/9 Frith Street
Soho, London W1D3JB
United Kingdom
Tel: (+44) 203-206-2748
info@deathpenaltyproject.org
http://www.deathpenaltyproject.org

Helpful Reports and Publications

Sandra Babcock and Ellen Wight McLaughlin, Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General, in Capital Punishments: New Perspectives, Peter Hodgkinson, 2013.

Fidelis Edge Kanyongolo, Malawi: Justice Sector and the Rule of Law, Open Society Foundation, 2006.

International Commission of Jurists, International Commission of Jurists Submission for the Preparation by the UN Human Rights Committee of a List of Issues for the Examination of the Initial Report of the Republic of Malawi Under the International Covenant on Civil and Political Rights, http://www2.ohchr.org/english/bodies/hrc/docs/ngos/InternationalCommissionJurists_Malawi_HRC108.pdf, Apr. 2013.

Additional notes regarding this country

None.

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