Death Penalty Database

Malawi

Information current as of: September 7, 2018

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 on September 26, 1992. [3]

Methods of Execution

Hanging.
De facto abolitionist. The last execution took place on September 26, 1992. [4]

References

[1] BBC, Country Profiles: Malawi Profile, http://www.bbc.com/news/world-africa-13864368, Jun. 16, 2015.
[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, last accessed Mar. 8, 2018.
[3] Hands Off Cain, The Offenses for which Capital Punishment either can or must be applied are murder…, http://www.handsoffcain.info/notizia/the-offences-for-which-capital-punishment-either-can-or-must-be-applied-are-murder-40001151, Jan. 12, 2018. 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.
[4] Hands Off Cain, The Offenses for which Capital Punishment either can or must be applied are murder…, http://www.handsoffcain.info/notizia/the-offences-for-which-capital-punishment-either-can-or-must-be-applied-are-murder-40001151, Jan. 12, 2018. 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.

Country Details

Language(s)

Chichewa and English are both official languages. [1]

Population

18,622,104 (2017 estimate). [2]

Number of Individuals Currently Under Sentence of Death

15.

At the end of 2017, 15 people were on death row in Malawi, [3] down from over 200 on death row prior to the ruling in Mclemonce Yasini v. The Republic and the subsequent Malawi Capital Resentencing Project. [4]

Annual Number of Reported Executions

Executions in 2018 to date (last updated on December 12, 2018)

0. [5]

Executions in 2017

0. [6]

Executions in 2016

0. [7]

Executions in 2015

0. [8]

Executions in 2014

0. [9]

Executions in 2013

0. [10]

Executions in 2012

0. [11]

Executions in 2011

0. [12]

Executions in 2010

0. [13]

Executions in 2009

0. [14]

Executions in 2008

0. [15]

Executions in 2007

0. [16]

Year of Last Known Execution

1992. [17]

References

[1] BBC, Country Profiles: Malawi Profile, http://www.bbc.com/news/world-africa-13864368, Jun. 16, 2015.
[2] World Bank, Population total, Malawi, https://data.worldbank.org/indicator/SP.POP.TOTL?locations=MW, last accessed Aug. 3, 2018.
[3] Amnesty Intl., Death Sentences and Executions in 2017, p. 34, ACT 50/7955/2018, Apr. 12, 2018.
[4] Cornell Center on the Death Penalty Worldwide, Malawian Traditional Leaders’ Perspectives on Capital Punishment: A Targeted Survey of Traditional Leaders Affected by the Malawi Capital Resentencing Project, 2017.
[5] DPW Executions and Death Sentences Monitor.
[6] Amnesty Intl., Death Sentences and Executions 2017, p. 34, ACT 50/7955/2018, Apr. 12, 2018.
[7] Amnesty International, Death sentences and executions in 2016, ACT 50/5740/2017, Apr. 11, 2017.
[8] DPW Executions and Death Sentences Monitor.
[9] Amnesty Intl., Death Sentences and Executions in 2014, ACT 50/001/2015, Mar. 31, 2015.
[10] Amnesty Intl., Death Sentences and Executions in 2013, ACT 50/001/2014, Mar. 26, 2014.
[11] Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013.
[12] 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.
[13] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[14] Amnesty International, Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[15] Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 24, 2009.
[16] Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[17] Hands Off Cain, The Offenses for which Capital Punishment either can or must be applied are murder…, http://www.handsoffcain.info/notizia/the-offences-for-which-capital-punishment-either-can-or-must-be-applied-are-murder-40001151, Jan. 12, 2018. 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.

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Murder.
Section 210 of the Penal Code provides that individuals convicted of murder “shall be liable to be punished with death or life imprisonment.” [1]

Rape Not Resulting in Death.
Rape may be punishable by death. [2] Rape is defined as an offense against women and girls only. [3]

Robbery Not Resulting in Death.
Armed robbery, robbery committed with another, or robbery committed with violence against a person, are all punishable by death. Robbery may be punishable by death if it is committed while “armed with any dangerous or offensive weapon or instrument, or is in the company with one or more person or persons, or if immediately before or immediately after the time of the assault, [the offender] wounds, beats, strikes, or uses any other personal violence to any person.” [4]

Treason.
Individuals convicted of treason may be punished by death. [5]

Military Offenses Not Resulting in Death.
Anyone who incites a mutiny or who fails to suppress a mutiny shall be sentenced to death if he had the intention of assisting the enemy. [6] Anyone who shares intelligence with the enemy shall be subject to the death penalty. [7] Anyone who commits treason is subject to the death penalty. [8] Anyone who commits treachery, cowardice, or other offences arising out of military service that aid the enemy may be subject to death. [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] Since 1995, the prosecution does not, in practice, seek the death penalty except in murder cases. [12]

Does the country have a mandatory death penalty?

No. Malawi does not have a mandatory death penalty. A 2011 amendment to the Penal Code repealed the requirement that the death penalty be imposed for murder and treason. [13] The Amendment reconciled the Penal Code with the Malawi High Court’s 2007 decision in Kafantayeni and Others v. Attorney General, which struck down the mandatory death penalty as unconstitutional. This ruling introduced judicial discretion into sentencing for murder and treason. [14] While a number of death sentences have been imposed after the High Court’s ruling, an estimated 156 prisoners who received mandatory death sentences before 2007 have since been resentenced, and 132 have been released as of July 17, 2018. [15]

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

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

Crimes For Which Individuals Have Been Executed Since January 2008:

None. Malawi has not carried out an execution 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 International Covenant on Civil and Political Rights, [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.
When a woman is convicted of an offense punishable by death and is found to be pregnant, the sentence shall be life in prison. [22] The issue of whether a woman is pregnant is to be determined after conviction, but prior to sentencing. [23] This conforms with Malawi’s international obligations as a party to the International Covenant on Civil and Political Rights [24] and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, [25] which prohibit the execution of pregnant women.

Mentally Ill.
In Malawi, a person is not liable for conduct punishable as a crime if, at the time of such conduct, he suffered from a disease that prevented him from understanding what he was doing. The law states that, “[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.” [26] This provision, however, does not apply to individuals who “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.” [27]

Nevertheless, even in cases where a defendant has not suffered from a disease that prevented him from knowing what he was doing at the time of the offence, other psychological factors may preclude a death sentence. In 2016, the High Court of Malawi ruled that courts should be lenient when the evidence suggests that a defendant may have suffered from a psychological disorder that did not meet the legal standard of insanity at the time of the crime. [28] Furthermore, Malawian courts have acknowledged the impact of “death row phenomenon”—psychological distress caused by long-term confinement on death row—as a factor that should mitigate against the imposition of a death sentence. [29]

If an inmate is adjudged to have a mental illness after sentencing, and he or she is still serving a sentence of death, then by law, “the Minister shall report the matter to the President.” [30] The law does not set out further action to be taken, or what options the President has in considering cases where mental illness was diagnosed following sentencing.

Intellectually Disabled.
In Malawi the law does not, on its face, preclude the application of the death penalty to persons with intellectual disability. Nevertheless, it is possible that some provisions apply to persons with intellectual disabilities. In Malawi the law states that, “[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.” [31] This provision does not apply to individuals who “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.” [32]

References

[1] Malawi Penal Code, sec. 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[2] Malawi Penal Code, sec. 133, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[3] Malawi Penal Code, sec. 132, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[4] Malawi Penal Code, sec. 301, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[5] Malawi Penal Code, sec. 38(1), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[6] Military Defence Force Act, secs. 40, 41, Act No. 11 of 2004, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[7] Military Defence Force Act, sec. 34, Act No. 11 of 2004, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[8] Military Defence Force Act, sec. 80(3)(a), Act No. 11 of 2004, Laws of Malawi Ch. 12:01, as updated through to Dec. 31, 2012.
[9] Military Defence Force Act, sec. 33, Act No. 11 of 2004, 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 2016.
[11] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[12] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[13] Malawi Penal Code, secs. 38, 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[14] Kafantayeni and Others v. Attorney General, pp. 5, 8, 9, 10–11, Constitutional Case No. 12 of 2005, High Ct. of Malawi, Apr. 27, 2007.
[15] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[16] Kafantayeni and Others v. Attorney General, pp. 10–11, Constitutional Case No. 12 of 2005, High Ct. of Malawi, Apr. 27, 2007. Malawi Penal Code, secs. 38, 210, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[17] Hands Off Cain, The Offenses for which Capital Punishment either can or must be applied are murder…, http://www.handsoffcain.info/notizia/the-offences-for-which-capital-punishment-either-can-or-must-be-applied-are-murder-40001151, Jan. 12, 2018. 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.
[18] Malawi Penal Code, sec. 26(2), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[19] ICCPR, art. 6(5), 999 U.N.T.S. 171, Dec. 19, 1966.
[20] Conv. on the Rights of the Child, art 37(a), 1577 U.N.T.S. 3, Nov. 20, 1989.
[21] African Charter on the Rights and Welfare of the Child, art. 5(3), O.A.U. Doc. CAB/LEG/24.9/49ch, 1990.
[22] Malawi Penal Code, sec. 26(4), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[23] Malawi Criminal Procedure and Evidence Code, sec. 327, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[24] ICCPR, art. 6(5), 999 U.N.T.S. 171, Dec. 19, 1966.
[25] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, art. 4(2)(g), http://www.achpr.org/files/instruments/women-protocol/achpr_instr_proto_women_eng.pdf, Jul, 11, 2003.
[26] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[27] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[28] The Republic v. Khonje, pp. 4–5, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Oct. 7, 2016.
[29] The Republic v. Langanyiwa, p. 12, Sentence Rehearing No. 34 of 2016, High Ct. of Malawi, Jun. 16, 2016. Cornell Center on the Death Penalty Worldwide, Death Row Phenomenon, http://www.deathpenaltyworldwide.org/death-row-phenomenon.cfm, last accessed Mar. 28, 2018.
[30] Malawi Prisons Act, sec. 72(2), Laws of Malawi Ch. 9:02, Jul. 20, 1967.
[31] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[32] Malawi Penal Code, sec. 12, Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.

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

Cosponsor

No. [20]

Vote

In Favor. [21]

Signed the Note Verbale of Dissociation

No. [22]

2014 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [23]

Vote

Abstained. [24]

Signed the Note Verbale of Dissociation

No. [25]

2012 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [26]

Vote

Abstained. [27]

Signed the Note Verbale of Dissociation

No. [28]

2010 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [29]

Vote

Abstained. [30]

Signed the Note Verbale of Dissociation

No. [31]

2008 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [32]

Vote

Abstained. [33]

Signed the Note Verbale of Dissociation

No. [34]

2007 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [35]

Vote

Abstained. [36]

Signed the Note Verbale of Dissociation

No. [37]

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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[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 Mar. 8, 2018.
[20] U.N.G.A., 71st 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. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[21] U.N.G.A., 71st 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. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[22] U.N.G.A., 71st Session, Note Verbale dated 7 September 2017, U.N. Doc. A/71/1047, Sep. 13, 2017.
[23] 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.
[24] U.N.G.A., 69th Session, 73rd Plenary Meeting, pp. 17-18, U.N. Doc. A/69/PV.73, Dec. 18, 2014.
[25] U.N.G.A., 69th Session, Note Verbale dated 28 July 2015, U.N. Doc. A/69/993, Jul. 29, 2015.
[26] 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.
[27] U.N.G.A., 67th Session, 60th Plenary Meeting, pp. 16-17, U.N. Doc. A/67/PV.60, Dec. 20, 2012.
[28] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[29] 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.
[30] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18-19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[31] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. A/65/779, Mar. 11, 2011.
[32] 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.
[33] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16- 17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[34] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[35] 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.
[36] U.N.G.A., 62nd Session, 76th Plenary Meeting, p. 17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[37] 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 the 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 public international law, specifically international human rights agreements and standards, in multiple sections:

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

Section 44(1) of Chapter IV stipulates that “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 211 of Chapter XXII states that any international agreement ratified by an Act of Parliament shall form part of the law of Malawi and that customary international law, unless inconsistent with the Constitution or an Act, shall form part of the law. [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] In 2007, the Supreme Court of Appeal affirmed the Kafantayeni judgment. [8] In 2010, in McLemonce Yasini v. The Republic, the Supreme Court of Appeal ruled that the Kafantayeni decision applied retroactively to all those sentenced to death prior to 2007. [9] Nevertheless, in the years following the Kafantayeni decision, the Supreme Court of Appeal upheld the imposition of a death sentence in 13 of 18 death penalty appeals. [10]

With the advent of discretionary sentencing, the Supreme Court of Appeal has directed the High 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 the commission of the crime” in deciding whether to pass a sentence of death. [11] Despite this instruction, implementation of the instruction to review mitigating evidence has been slow, due to a range of factors including limited resources and lack of training. [12]

The Kafantayeni decision has, however, substantially reduced the number of new death sentences. Moreover, the High Courts have held 156 resentencing hearings for prisoners who received mandatory death sentences before 2007. Those resentencing hearings have generated a significant body of jurisprudence on capital sentencing that has placed significant restrictions on the use of the death penalty in line with international human rights principles. [13] Of those prisoners resentenced as of July 17, 2018, 132 have been released, and the rest—with one exception—have been sentenced to a term of years. One was given a sentence of life imprisonment. None were sentenced to death. [14]

During resentencing hearings, the High Court placed the burden on the State “to prove beyond reasonable doubt that death is the appropriate sentence.” [15] The Court made clear that “[t]he burden never lies on the defence.” [16] In several decisions, the Court ruled that a prisoner’s post-conviction conduct may be considered as evidence in mitigation. [17] In one case, the High Court expressly found that evidence of “reform and re-adaptation or re-integration” could be considered as a mitigating factor. [18] Other mitigating factors considered by the High Courts in the resentencing hearings include economic deprivation, [19] mental impairment, [20] intoxication, [21] youth, [22] old age, [23] trauma, [24] and a sincere belief in witchcraft. [25]

In Republic v. Khonje, the High Court concluded that for a convict to spend more than “three years of custody on death row” would render a death sentence inhuman and unconstitutional. [26] In addition, the Court observed that “poor prison conditions” violated “basic human dignity, [were] unconstitutional, and [fell] below international minimum standards” and that a judge should “naturally take this into consideration in sentencing.” [27]

The last reported mass commutation for those on death row was in 2004 when President Muluzi commuted the death sentences of 79 prisoners to life imprisonment. [28] In January 2018, President Peter Mutharika pardoned 238 prisoners, none of whom had been sentenced to death or had been convicted of serious offences. [29]

In recent years, an increase in maiming and killing of people with albinism, motivated by superstitions and folklore, has prompted politicians, lawyers, and some members of the religious community to call for the implementation of the death penalty for the perpetrators of those crimes. [30] President Peter Mutharika opposed a reintroduction of the death penalty that would target individuals who kill people with albinism [31] and the President’s Information Minister stated that such legislation would not be introduced as it would contravene “many human rights instruments.” [32] Nevertheless, the President has introduced new laws, including an update to the Penal Code and the Anatomy Act, to allow for increased punishments for those convicted of crimes against people with albinism. [33] On April 5, 2018, the President issued a statement calling for a renewed national dialogue on whether the death penalty should be implemented for these crimes. [34]

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

There is no official moratorium, but there have been no executions since 1992. [35]

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

Many of the resentencing proceedings resulted in significant new rulings on the death penalty, particularly with regard to mitigation, prison conditions, and access to consular assistance.

**Death Penalty Sentencing Procedures**

In Chimenya v. The Republic, Malawi’s 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. [36] Similarly, many cases expand the list of, and develop the definitions of, mitigating factors available to defendants at sentencing, including the lack of a criminal record, [37] the absence of trial transcripts, [38] mental illness, [39] economic deprivation, [40] intoxication, [41] old age, [42] trauma, [43] a sincere belief in witchcraft, [44] and youth at the time of the offence or sentencing. [45]

The High Courts have generally required the “prosecution to prove beyond reasonable doubt that death is the appropriate sentence.” [46] Indeed, the High Court found that evidence of “reform and re-adaptation or re-integration” could be considered as a mitigating factor. [47] The Court also stated that a death sentence should only be imposed “in the worst of the worst of cases.” [48]

**Mitigation**

In the Republic v. Margret Nadzi Makolija, the first written judgment issued in relation to the sentence rehearing process, the Court set out seven key factors for consideration that a sentencing court will often look to when considering the sentence to be meted out upon a convict, including:

• That the maximum punishment must be reserved for the worst of offenders in the worst of cases;
• The age of the convict at the time of the offence and at sentencing;
• Whether the convict is a first offender;
• The time already spent in prison by the convict;
• The personal and individual circumstances of the offender, and as well as his or her possibility of reform and social re-adaptation;
• Duress, self-defence, provocation, lesser participation in the offence; and
• The manner in which the offence was committed. [49]

However, this is not an exhaustive list, and indeed, there is no restriction on what a court can consider as mitigating, since mitigation is always unique to the offender. After setting out the above broad factors, Judge Nyirenda noted that the “list of circumstances, mentioned by counsel, that are aggravating or mitigating is not exhaustive. For example, I see no reason why other factors such as remorse, lack of clear motive, childhood deprivation and abuse, good conduct in prison, effect on the victim, likelihood of committing further acts of violence, sense of moral justification and, in appropriate cases, socioeconomic status, cannot be taken into account.” [50]

Several High Court decisions also provided that a prisoner’s post-conviction conduct can be considered as evidence in mitigation. [51]

**Prison conditions**

In 2009, the High Court held that the chronic overcrowding in Malawi’s prisons violates basic human dignity, is unconstitutional, and falls below international minimum standards. Later, in 2015, the High Court held that “appalling prison conditions which are quite below the recognised international standard should be taken into consideration in these sentence re-hearing proceedings” and that, indeed, “such imprisonment is a punishment on its own.” [52] Despite these judgments, prison conditions remain dire throughout Malawi. [53]

**Access to consular assistance**

Significantly, the Malawi High Court has ruled that foreign nationals accused of death-eligible crimes have a right to consular assistance from their home governments under the Vienna Convention on Consular Rights. [54] In two cases, the Court held that the prisoners’ death sentences should be vacated as a remedy for the violation of their consular rights. [55]

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

The Malawi Legal Information Institute houses Malawi caselaw from the High Court and Supreme Court at http://www.malawilii.org.

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.

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.

Selected jurisprudence from the Malawi Capital Resentencing Project can be found at http://bit.ly/MalawiJurisprudence.

What is the clemency process?

After a death sentence has been confirmed on appeal, the presiding judge forwards to the President a report with notes of evidence taken at the trial and any recommendation or observation on the case. [56] This is not a clemency application, but may inform future clemency applications, and is kept on file by the office of the President. [57] Malawi’s Constitution establishes an Advisory Committee on the Granting of Pardon, the members of which are chosen by Parliament. [58] Provided that the Advisory Committee is consulted, the President appears to have unfettered power to commute a death sentence or to pardon an offender. [59] However, the guidelines that are currently in place for clemency require that the Chief Commissioner of prisons provide a list of prisoners to the President and Advisory Committee that includes only those who have committed minor crimes and who have served at least half of their sentence. [60] Clemency for eligible prisoners is granted three-to-four times each year, usually on major holidays such as Christmas, Easter and Mother’s Day. [61] Individual clemency applications by prisoners who do not fall within the guidelines for automatic consideration may be submitted to the President, and the President, in consultation with the Advisory Committee, could decide to grant them—though whether this has happened in practice is unknown. [62]

In addition to a full pardon, clemency is also available via commutation of sentences. [63] Death-sentenced prisoners are eligible to seek a commutation of their sentence from death to life following the exhaustion of their domestic remedies. [64] Until 2005, the President routinely granted commutations to all those on death row; however, since 2005, routine commutations have ceased. [65] Though no longer granted routinely, commutations still may be sought via direct application from the prisoner to the Chief Commissioner of Prisons, who will forward requests for commutation to the President. [66]

Are jury trials provided for defendants charged with capital offenses?

According to law, a jury of 12 persons tries all criminal defendants before the High Court. [67] Nevertheless, the Minister of Justice may order that any class of cases shall be triable without a jury. [68] Such an order is currently in effect, and jury trials are not available for individuals charged with capital crimes in Malawi. [69] Due to the cost of selecting and paying jurors, jury trials in homicide cases were discontinued in 2009. [70]

Brief Description of Appellate Process

Death penalty cases are held before a single High Court judge who determines guilt and imposes a sentence. [71] Appeals are made to the Supreme Court of Appeal. [72] As such, the Supreme Court of Appeal’s jurisdiction is exclusively appellate.

Anyone sentenced to death has an automatic right to appeal to the Supreme Court of Appeal. [73] The long delays that often occur between conviction and appeal, however, may effectively curtail this right. [74] Additionally, prisoners are seldom provided with pro bono (free) counsel, and thus often file their appeals on their own. These cases are received by the Supreme Court but few are reviewed. [75] Of 168 individuals sentenced to death between 1994 and 2007, only 28 had their cases reviewed on appeal. [76]

References

[1] Republic of Malawi (Constitution) Act, sec. 16, Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[2] Republic of Malawi (Constitution) Act, sec. 11, Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[3] Republic of Malawi (Constitution) Act, sec. 44, Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[4] Republic of Malawi (Constitution) Act, sec. 45, Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[5] Republic of Malawi (Constitution) Act, sec. 211, Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[6] Kafantayeni and Others v. Attorney General, pp. 10–11, Constitutional Case No. 12 of 2005, High Ct., Apr. 27, 2007.
[7] Kafantayeni and Others v. Attorney General, pp. 5, 8, 9, 10, Constitutional Case No. 12 of 2005, High Ct. of Malawi, Apr. 27, 2007.
[8] Jacob v. The Republic, pp. 2–8, MSCA Crim. App. No. 18 of 2006, Supreme Ct. of Appeal at Blantyre, pp. 2–8, Jul. 19, 2007.
[9] McLemonce Yasini v. The Republic, p. 12, M.S.C.A. Criminal Appeal No. 29 of 2005, Supreme Ct. of Malawi at Blantyre, Nov. 1, 2010.
[10] Esther Gumboh, Realising the Promise of Kafantayeni: Emerging Jurisprudence from the Resentencing of Death Row Inmates in Malawi, The African Law Service, http://gavel.africanlii.org/node/15, Aug. 23, 2016. Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[11] Chimenya v. The Republic, p. 5, MSCA Crim. App. No. 8 of 2006, Supreme Ct. of Appeal at Blantyre, Dec. 21, 2009.
[12] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[13] Malawi Capital Resentencing Project: Selected Jurisprudence, as compiled by Cornell Center on the Death Penalty Worldwide and the Malawi Human Rights Commission, http://bit.ly/MalawiJurisprudence, Mar. 27, 2017.
[14] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[15] The Republic v. Banda, p. 3, Sentence Rehearing No. 9 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[16] The Republic v. Banda, p. 3, Sentence Rehearing No. 9 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[17] The Republic v. Chiliko Senti, pp. 5–6, Sentence Rehearing No. 25 of 2015, High Ct. of Malawi, Jun. 12, 2015.
[18] The Republic v. Akimu, p. 2, Sentence Rehearing No. 11 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[19] The Republic v. Richard Maulidi and Julius Khanawa, Sentence Rehearing No. 65 of 2015, High Ct of Malawi, Feb. 2, 2016.
[20] The Republic v. James Galeta, p. 5, Sentence Rehearing No. 47 of 2015, High Ct. of Malawi, Oct. 7, 2016.
[21] The Republic v. Chiliko Senti, p. 8, Sentence Rehearing No. 25 of 2015, High Ct. of Malawi, Jun. 12, 2015.
[22] The Republic v. Richard Jiba James, Charles Dick, Charles Nyapala and Gray Zimba, p. 13, Sentence Rehearing No. 69 of 2015, High Ct. of Malawi, Mar. 4, 2016.
[23] The Republic v. Baison Kaula, p. 12, Sentence Rehearing No. 5 of 2015, High Ct. of Malawi, Feb. 20, 2015.
[24] The Republic v. Lameck Bandawe Phiri, p. 3, Sentence Rehearing No. 25 of 2017, High Ct. of Malawi, Jun. 23, 2017.
[25] The Republic v. Laston Mukiwa, p. 4, Sentence Rehearing No.21 of 2015, High Ct. of Malawi, Mar. 9, 2015.
[26] The Republic v. Khonje, p. 5, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Oct. 7, 2016.
[27] The Republic v. Khonje, p. 5, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Oct. 7, 2016.
[28] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E–1, Dec. 19, 2017. 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.
[29] Green Muheya, Mutharika pardons 238 prisoners from Malawi’s harshest prisons, Nyasa Times, https://www.nyasatimes.com/mutharika-pardons-283-prisoners-malawis-harshest-prisons/, Jan. 5, 2018.
[30] Brian Ligomeka, Albino killers must be executed, Malawi MPs say, News 24, https://www.news24.com/Africa/News/albino-killers-must-be-executed-malawi-mps-say-20160518, May 18, 2016. Malawi clergy, politician & lawyer call for death penalty to albino killers, The Maravi Post, http://www.maravipost.com/6635/, Jul. 7, 2016. Mphatso Nkhoma, DPP MP tells Amnesty International ‘to go to hell with rights’, says Malawi needs death penalty on albino killers, Nyasa Times, https://www.nyasatimes.com/dpp-mp-tells-amnesty-international-go-hell-rights-says-malawi-needs-death-penalty-albino-killers/, Jun. 23, 2016.
[31] Malawi rules against death penalty for albino killers, News 24, https://www.news24.com/Africa/News/malawi-rules-against-death-penalty-for-albino-killers-20160620, Jun. 20, 2016.
[32] Malawi rules against death penalty for albino killers, News 24, https://www.news24.com/Africa/News/malawi-rules-against-death-penalty-for-albino-killers-20160620, Jun. 20, 2016.
[33] Malawi president to introduce new law for albino killers, Jamaican Observer, http://www.jamaicaobserver.com/news/Malawi-president-to-introduce-new-law-for-albino-killers_65987, Jul. 2, 2016. Chikumbutso Mafupa-Mana, DPP sensitize Malawi prosecutors on newly amended Penal Code and Anatomy Act, Nyasa Times, https://www.nyasatimes.com/dpp-sensitize-malawi-prosecutors-newly-amended-penal-code-anatomy-act/, Sep. 13, 2016.
[34] Russel Kondowe, Mutharika considering death penalty for albino killers, Malawi 24, https://malawi24.com/2018/04/05/mutharika-considering-death-penalty-for-albino-killers/, Apr. 5, 2018.
[35] Hands Off Cain, The Offenses for which Capital Punishment either can or must be applied are murder, http://www.handsoffcain.info/notizia/the-offences-for-which-capital-punishment-either-can-or-must-be-applied-are-murder-40001151, Jan. 12, 2018. 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.
[36] Chimenya v. The Republic, p. 5, MSCA Crim. App. No. 8 of 2006, Supreme Ct. of Appeal at Blantyre, Dec. 21, 2009.
[37] The Republic v. Khonje, p. 5, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Oct. 7, 2016.
[38] The Republic v. Dzimbiri, pp. 8–11, Sentence Rehearing No. 4 of 2015, High Ct. of Malawi, Jun. 1, 2015.
[39] The Republic v. Kenneth Lanyanyiwa, p. 12, Sentence Rehearing No. 34 of 2016, High Ct. of Malawi, Jun. 16, 2017.
[40] The Republic v. Richard Maulidi and Julius Khanawa, Sentence Rehearing No. 65 of 2015, High Ct of Malawi, Feb. 2, 2016.
[41] The Republic v. Chiliko Senti, p. 8, Sentence Rehearing No. 25 of 2015, High Ct. of Malawi, Jun. 12, 2015.
[42] The Republic v. Baison Kaula, p. 12, Sentence Rehearing No. 5 of 2015, High Ct. of Malawi, Feb. 20, 2015.
[43] The Republic v. Lameck Bandawe Phiri, p. 3, Sentence Rehearing No. 25 of 2017, High Ct. of Malawi, Jun. 23, 2017.
[44] The Republic v. Laston Mukiwa, p. 4, Sentence Rehearing No.21 of 2015, High Ct. of Malawi, Mar. 9, 2015.
[45] The Republic v. Banda, p. 2, Sentence Rehearing No. 9 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[46] The Republic v. Banda, p. 3, Sentence Rehearing No. 9 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[47] The Republic v. Akimu, p. 2, Sentence Rehearing No. 11 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[48] The Republic v. Akimu, p. 5, Sentence Rehearing No. 11 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[49] The Republic v. Margret Makolija, pp. 4-6, Sentence Rehearing No. 12 of 2015, High Ct. of Malawi, Mar. 4, 2015.
[50] The Republic v. Margret Makolija, p. 6, Sentence Rehearing No. 12 of 2015, High Ct. of Malawi, Mar. 4, 2015.
[51] The Republic v. Funsani Payenda, paras. 62–63, Sentence Rehearing No. 18 of 2015, High Ct. of Malawi, Apr. 23, 2015. The Republic v. Chiliko Senti, pp. 6, 8, Sentence Rehearing No. 25 of 2015, High Ct. of Malawi, Jun. 12, 2015. The Republic v Lackson Dzimbiri, pp. 12, Sentence Rehearing No. 4 of 2015, High Ct. of Malawi, Jun. 1, 2015.
[52] The Republic v. Chiliko Senti, p. 12, Sentence Rehearing No. 25 of 2015, High Ct. of Malawi, Jun. 12, 2015.
[53] Gable Masangano v. Attorney General and others, Constitutional Case No. 15 of 2007, High Ct. of Malawi, Nov. 9, 2009.
[54] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E–1, Dec. 19, 2017. The Republic v. Lameck Bandawe Phiri, Sentence Rehearing No. 25 of 2017, High Ct. of Malawi, Jun. 22, 2017. The Republic v. Mabvuto Alumeta, Sentence Rehearing No. 36 of 2017, High Ct. of Malawi, Jun. 22, 2017.
[55] The Republic v. Lameck Bandawe Phiri, Sentence Rehearing No. 25 of 2017, High Ct. of Malawi, Jun. 22, 2017. The Republic v. Mabvuto Alumeta, Sentence Rehearing No. 36 of 2017, High Ct. of Malawi, Jun. 22, 2017.
[56] Malawi Criminal Procedure and Evidence Code, sec. 326, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010.
[57] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[58] Republic of Malawi (Constitution) Act, sec. 89(2), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[59] Republic of Malawi (Constitution) Act, sec. 89(2), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[60] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[61] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[62] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[63] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[64] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[65] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[66] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[67] 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.
[68] 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.
[69] Malawi abolishes jury system in homicide cases, The Zimbabwean, http://www.thezimbabwean.co/2009/08/malawi-abolishes-jury-system-in-homicide-cases/, Aug. 11, 2009. Esther Gumboh, Realising the Promise of Kafantayeni: Emerging Jurisprudence from the Resentencing of Death Row Inmates in Malawi, The African Law Service, http://gavel.africanlii.org/node/15, Aug. 23, 2016.
[70] 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.
[71] 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.
[72] Redson Edward Kapindu, Malawi: Legal System and Research Sources, GlobaLex, http://www.nyulawglobal.org/globalex/Malawi1.html, 2.6.1, Dec. 2014. Magistrate Courts, which are subordinate to the High Court, can try other death-eligible cases, such as rape and housebreaking. Republic of Malawi (Constitution) Act, sec. 110(1), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[73] Malawi Criminal Procedure and Evidence Code, sec. 324, Act No. 36 of 1967, Laws of Malawi Ch. 8:01, as amended through to 2010. Republic of Malawi (Constitution) Act, sec. 42(f)(viii), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[74] The Republic v. Geofrey Mponda, paras. 19–21, Sentence Rehearing No. 68 of 2015, High Ct. of Malawi, Mar. 4, 2016.
[75] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[76] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

All death-sentenced prisoners are incarcerated at Zomba Central Prison in Zomba, a city in southern Malawi. [1]

Description of Prison Conditions

Conditions in Malawi’s prisons are extremely poor, as acknowledged by both the government and the courts. In Gable Masangano v. Attorney General, the High Court held that the chronic overcrowding in Malawi’s prisons violates basic human dignity, is unconstitutional, and falls below international minimum standards. [2] In 2015, the President pledged to improve the conditions of the prisons in Malawi. [3]

Insufficient water, poor sanitation, overcrowding, malnutrition, and inadequate health care continue to be major problems in some prisons. [4] Food shortages are chronic in Malawian prisons. Doctors Without Borders estimates that over five billion Kwacha (approximately U.S. $6.9 million) is needed yearly to feed the prison population. [5] Nevertheless, in the 2016 fiscal year, the Prison Service received only 1.75 million Kwacha (approximately U.S. $2,500) to cover the cost of food for its 28 jails. [6] Given these budgeting constraints and rising food prices, prisoners are served one meal per day, in some cases consisting of just nsima¬ (a maize-based starch), with the occasional addition of boiled beans. [7]

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 at least two months due to budget restraints. [8] Also, the lack of housing and suitable sanitary conditions available to prison staff has raised concerns that disease may potentially spread outside prisons. [9]

Lack of access to sanitation and medical care in Malawi’s prisons have led to high rates of tuberculosis, HIV, and pneumonia. [10] 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. [11] The group 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] It has also been reported that tuberculosis has infected up to 60% of the prison population. [13] In 2018, the Prisons Inspectorate acknowledged that tuberculosis infections are on the rise in the prisons. [14] Further, because prison regulations prohibit condoms, HIV has spread throughout Malawi’s prisons. [15]

Zomba Central Prison currently houses approximately 2,200 inmates, including the inmates on death row. [16] Built in 1935, Zomba was condemned as unfit for human habitation by the Prisons Inspectorate in 1997, but remains in use without modification or improvement, and has been described as “a death trap” for inmates. [17] Overcrowding is rampant in the general population. [18]

Prisoners on death row are housed in a separate section of the prison, referred to as the “condemned section.” As of July 2018, death row cells were both smaller and less crowded than in general population. [19] The men who are condemned to death may not socialize or interact with prisoners in the general population. They have no access to educational programming or occupational training. They may not pray or attend church services with the rest of the prison population. [20]

The cell-block housing the condemned prisoners consists of cells roughly 8 x 6 feet (1.8 x 2.4 meters). Each cell contains one window that is no more than one square foot in size. This window 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. A bucket in the corner is used as a latrine at night. [21]

Prisoners sleep on mats on the floor. Each prisoner is given two blankets: generally, prisoners sleep on one blanket and cover themselves in the second blanket. There are up to four men per cell. The men are put into their cells between 4:00-5:00pm and are released between 6:00-7:00am the following day. [22]

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 is a concrete slab that extends the length of the cellblock, and is approximately 20 x 60 feet (6 x 18 meters). At the end of the cellblock, across from the gallows, are three showers and three toilets that are shared by the condemned prisoners. [23]



There have been reports that shackling (hand and foot) and solitary confinement have been used to punish death row inmates for poor behavior. [24]

The psychological effects of protracted and indefinite detention on death row have been found to constitute cruel, inhuman or degrading treatment. [25] This mental anguish is heightened for prisoners on Malawi’s death row by the fact that the gallows are visible from their cells and in the courtyard in which they spend most of their time. [26] With death row inmates often enduring a decade or more of uncertainty regarding their potential executions, Malawian courts have found that such treatment is degrading and violates international standards. [27]

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

As of December 2017, there were no foreign nationals under sentence of death. [28]

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

As of December 2017, all death row prisoners were Malawian. [29]

Are there any known women currently under sentence of death?

No. As of December 2017, there were no women on death row. [30]

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 April 2018, there were no juveniles on death row. [31]

Malawi prohibits the application of the death penalty to individuals who were under the age of 18 at the time the offense was committed. [32] According to Amnesty International, no juveniles have been executed since 1990, when Malawi started keeping records. [33]

Nonetheless, 17 juvenile offenders were sentenced to death from 1994–2007 under the mandatory death penalty regime. All except one were eventually released after 2015; the one remaining juvenile offender is scheduled to be released in 2019. This prisoner is no longer on death row, but is still in a maximum-security facility. [34]

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. [35]

Are there lawyers available for indigent defendants facing capital trials?

The Constitution guarantees that the state will provide legal counsel to an accused “where the interests of justice so require.” [36] Defendants also have the constitutional right to be informed of the right to legal representation. [37] In practice, however, the government generally only provides legal aid to defendants in homicide cases. [38] Nevertheless, not all the 156 prisoners who were sentenced to death and then resentenced as part of the Malawi Capital Resentencing Project were provided with a government-funded lawyer at the time of trial. [39]



Although in most cases capital defendants receive the assistance of publicly-funded counsel, scarce resources make it difficult for defense attorneys to provide quality representation for indigent clients. [40] The Legal Aid Bureau, the organization required to offer legal assistance to indigent defendants, has only 14 staff members as of January 2018. [41] With over 14,000 people held in Malawian jails and prisons, these attorneys do not have the capacity to provide high quality representation in every case, and are often reduced to processing bail and appeal applications because they lack time and financial resources to provide more comprehensive assistance. [42]

Are there lawyers available for indigent prisoners on appeal?

Convicted capital defendants have a constitutional right to representation “when it is required in the interests of justice,” which has in practice been interpreted to include capital defendants on appeal. [43] The reality, however, is that not all those convicted at trial are informed of their right to counsel on appeal. If a legal aid attorney is assigned to the client, it is likely to be a different attorney than trial counsel. With no lawyers to keep track of death row cases, case files can go missing. [44] The absence of counsel means there is no one to push cases through at the Supreme Court, leaving most clients without any recourse to avail themselves of their guaranteed right to appeal. Only 16% of the 168 cases in the Malawi Capital Resentencing Project had benefitted from an appeal. [45]

Comments on Quality of Legal Representation

There are not enough legal aid lawyers to meet the need in Malawi, and the quality of representation is generally poor due to lack of capacity, training, and resources. [46] In 2017, the entire bar in Malawi consisted of 358 lawyers: one lawyer for every 47,500 Malawians. [47] Moreover, many attorneys choose not to work in public interest jobs because private practice is more lucrative. [48] In 2018 there were only 14 Legal Aid lawyers in the country, five of whom qualified within the last two years. [49]

Legal Aid advocates are responsible for representation of all indigent clients in both civil and criminal cases, yielding a caseload of about 2,000 cases per month. [50] Due to high demand and understaffing, advocates have difficulty finding time to visit criminal clients. [51] Accordingly, clients often meet their Legal Aid lawyers on the day of trial. [52]

Representation of indigent clients is severely hampered by lack of funding. In 2016, Malawi’s Legal Aid Bureau was allocated only 130 million Kwacha (approximately U.S. $182,000) against a budget request of 1.2 billion ($1.68 million) needed to achieve its mandate. [53] In April 2016, the Legal Aid Bureau was compelled to put a hold on all its homicide trials because it did not have the resources to provide representation. [54]

Many files go missing or get temporarily misplaced because the filing systems in place are woefully inadequate to efficiently manage the number of cases, which in turn results in extreme delays for defendants on remand. [55] The problem of poor case management pervades the overburdened judiciary and the Department of Public Prosecutions, and then affects the provision of Legal Aid, as files are supposed to be sent to Legal Aid from the Registrar and the Department of Public Prosecutions. [56]

In an attempt to alleviate some of the burden on Legal Aid, the Ministry of Justice has a cooperation agreement with paralegals to provide legal aid services in police stations, prisons, and courts. [57] Other recent laws, such as the Local Courts Act, were intended to assist in removing some of the burden from Malawi’s overstretched courts and public counsel by allowing lower courts to hear cases involving less serious crimes, which would free up the higher courts to focus on more serious offenses. Unfortunately, these measures have been inadequate to compensate for the lack of properly funded and trained defense lawyers. [58]

Other Comments on Criminal Justice System

Inefficiency leads to lengthy periods of remand

The criminal justice system in Malawi is severely underfunded and inefficient. Malawi faces an extraordinary backlog of cases (including at least 1,400 homicide cases as of 2016), which can be blamed for much of the prison overcrowding in the country. [59] As of 2016, 2,275 of Malawi’s total prison population of 14,018 remained in pretrial detention. [60] Although by law there is a statutory 90-day limit on pretrial detention, [61] accused persons can spend years detained on remand, awaiting trial. [62] Furthermore, prisoners rarely have bail hearings, which results in pretrial detentions that can last up to ten years. [63] “Remandee” case files are often lost, leaving these prisoners in indefinite legal limbo. [64]

Furthermore, detainees are regularly held longer than the 48 hours that is legally permitted to hold an arrestee prior to charge. [65] Detainees are also denied their right to challenge the legality of their detention, access legal representation, as required by law. [66]

Inadequate opportunity to prepare a defense

Criminal defense lawyers lack funding and training to conduct a proper investigation. [67] Most of the crimes that have resulted in a death sentence in the past 20 years occurred in remote villages, sometimes hundreds of miles away from the regional Legal Aid office, in areas impossible to access without an all-terrain vehicle. [68] Telephone communication is not an adequate alternative to in-person investigation, as few key witnesses are likely to have a phone, and those who do will have limited access to electricity to keep it charged or to money for credit to place calls. Consequently, witnesses for the defense, beyond the defendant himself, are rarely called to testify in Malawi’s homicide trials. [69]

As of April 2018, there were no Malawian psychiatrists staffing the country’s sole mental hospital, and few mental health workers were trained to carry out comprehensive assessments of capital murder defendants to determine whether they had intellectual disabilities or mental impairments. [70] This creates an additional risk of wrongful conviction for mentally ill or intellectually disabled people. Such defendants will be simultaneously limited in their ability to present a case on their behalf and unable to access the expertise needed to diagnose their limitations, especially since defense counsel, prosecutors, and judges are not trained to recognize signs of mental illness and intellectual disability. [71]

Arbitrary arrest and false charges

Rudimentary policing tools associated with a lack of resources heightens the risk of arbitrary arrests and false charges. More advanced investigative tools are entirely absent; access to forensic analysis is nonexistent. As a result, police often respond to a reported crime by simply conducting a broad dragnet operation in the area where the crime occurred, rounding up groups of people to bring into the station for questioning on the assumption that one or more will ultimately be charged. [72]

Relatives or friends of a known suspect are sometimes arrested with the suspect, regardless of their involvement in the crime. [73] A single trait, such as nationality, may be the predicate for arrest. [74] In the most egregious cases, there is no evidence at all linking the defendants to the crime. [75]

False confessions elicited by torture and coercion

Torture is a common mechanism for eliciting confessions in the Malawian criminal justice system, [76] although it is prohibited both in the Constitution and under international law. [77] Police often beat arrestees, and often prevent them from sleeping, eating or drinking for days on end. [78] The system’s heavy reliance on torture is due in part a lack of investigative tools. Police officers may use torture to weed through arbitrarily arrested suspects by extracting a confession from the “true” culprit. [79]

Many of Malawi’s death penalty convictions rest upon defendant confessions alone. Unfortunately, the practice of using torture to elicit a confession is so pervasive and ingrained that lawyers do not always raise the issue at trial, preventing courts from barring the evidence. [80] Compounding the problem is the fact that police often draft the confession statements, without input from the prisoners, many of whom are illiterate. [81]

References

[1] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E–1, Dec. 19, 2017.
[2] Gable Masangano v. Attorney General, pp. 30–31, Constitutional Case No. 15 of 2007, High Ct. of Malawi, Nov. 9, 2009.
[3] Lydia Kalonde, President Mutharika promises improved living conditions in Prisons, MANA Online, http://www.manaonline.gov.mw/index.php/sports/item/2245-president-mutharika-promises-improved-living-conditions-in-prisons, Mar. 11, 2015.
[4] Nicolette Jackson, Malawi prisons: Are inmates at the end of the food chain?, The Nation, http://mwnation.com/malawi-prisons-are-inmates-at-the-end-of-the-food-chain/, Oct. 7, 2016.
[5] Josephine Tiyanjane Chinele, Nursing the hungry: How one Catholic nun has taken Malawi’s prisoners under her wing, Bhekisisa, http://bhekisisa.org/article/2016-09-02-00-nursing-the-hungry-how-one-catholic-nun-has-taken-malawis-prisoners-under-her-wing, Sep. 2, 2016.
[6] Josephine Tiyanjane Chinele, Nursing the hungry: How one Catholic nun has taken Malawi’s prisoners under her wing, Bhekisisa, http://bhekisisa.org/article/2016-09-02-00-nursing-the-hungry-how-one-catholic-nun-has-taken-malawis-prisoners-under-her-wing, Sep. 2, 2016. Brian Ligomeka, Malawi’s murder suspects overstay in prison, News 24, https://www.news24.com/Africa/News/malawis-murder-suspects-overstay-in-prison-report-20161001, Oct. 1, 2016.
[7] Rachel Banning-Lover, Behind the walls of Malawi’s harshest prisons – in pictures, The Guardian, https://www.theguardian.com/global-development-professionals-network/gallery/2016/jul/29/malawis-harshest-prisons-humanitarian-msf, Jul. 29, 2016.
[8] Aliko Munde, Malawi: Nkhata Bay Inmates Bathe Without Soap for Two Months, Malawi News Agency, http://allafrica.com/stories/201306090119.html, Jun. 7, 2013.
[9] Rachel Banning-Lover, Behind the Walls of Malawi’s Harshest Prisons, The Guardian, https://www.theguardian.com/global-development-professionals-network/gallery/2016/jul/29/malawis-harshest-prisons-humanitarian-msf, Jul. 29, 2016.
[10] The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, p. 5, Apr. 2015–May 2015.
[11] Fazilla Tembo, Activists ask UN Special Rapporteur to inspect Malawi Prisons, Nyasa Times, http://www.nyasatimes.com/activists-ask-un-special-rapporteur-to-inspect-malawi-prisons/, Jan. 4, 2014.

Fazilla Tembo, Activists ask UN Special Rapporteur to inspect Malawi Prisons, Nyasa Times, http://www.nyasatimes.com/activists-ask-un-special-rapporteur-to-inspect-malawi-prisons/, Jan. 4, 2014.

[12] Fazilla Tembo, Activists ask UN Special Rapporteur to inspect Malawi Prisons, Nyasa Times, http://www.nyasatimes.com/activists-ask-un-special-rapporteur-to-inspect-malawi-prisons/, Jan. 4, 2014.
[13] 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.
[14] Green Muheya, Mutharika pardons 238 prisoners from Malawi’s harshest prisons, Nyasa Times, https://www.nyasatimes.com/mutharika-pardons-283-prisoners-malawis-harshest-prisons/, Jan. 5, 2018.
[15] 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.
[16] The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, p. 5, Apr. 2015–May 2015. Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[17] Kenneth Jali, K10bn maximum security project is in limbo, The Times Group, https://www.times.mw/k10bn-maximum-security-prison-project-is-in-limbo/, Apr. 30, 2016. The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, p. 5, Apr. 2015–May 2015.
[18] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[19] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[20] The Republic v. Michael Khonje, Exhibit JGM 3 - Statement of Dr. George Woods M.D. (Defense submissions), paras. 21–26, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Aug. 7, 2016.
[21] The Republic v. Michael Khonje, Exhibit JGM 3 - Statement of Dr. George Woods M.D. (Defense submissions), paras. 21–26, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Aug. 7, 2016.
[22] The Republic v. Michael Khonje, Exhibit JGM 3 - Statement of Dr. George Woods M.D. (Defense submissions), paras. 21–26, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Aug. 7, 2016.
[23] The Republic v. Michael Khonje, Exhibit JGM 3 - Statement of Dr. George Woods M.D. (Defense submissions), paras. 21–26, Sentence Rehearing No. 28 of 2016, High Ct. of Malawi, Aug. 7, 2016.
[24] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[25] Cornell Center on the Death Penalty Worldwide, International Legal Issue: Death Row Phenomenon, http://www.deathpenaltyworldwide.org/death-row-phenomenon.cfm, Feb. 21, 2012. The Republic v. Langanyiwa, p. 12, Sentence Rehearing No. 34 of 2016, High Ct. of Malawi, Jun. 16, 2016.
[26] The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, p. 5, Apr. 2015–May 2015.
[27] The Republic v. Langanyiwa, p. 12, Sentence Rehearing No. 34 of 2016, High Ct. of Malawi, Jun. 16, 2016.
[28] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[29] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[30] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[31] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[32] Malawi Penal Code, sec. 26(2), Act 22 of 1929, Laws of Malawi Ch. 7:01, as amended through to 2016.
[33] Amnesty Intl., Executions of Juveniles Since 1990, ACT 50/3832/2016, https://www.amnesty.org/en/documents/act50/3832/2016/en/, last accessed Mar. 8, 2018.
[34] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[35] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[36] Republic of Malawi (Constitution) Act, sec. 42(2)(f)(5), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[37] Republic of Malawi (Constitution) Act, sec. 42(2)(f)(5), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[38] U.S. Dept. of State, Malawi 2015 Human Rights Report, https://www.state.gov/documents/organization/252913.pdf, p. 6, last accessed Mar. 11, 2018. Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[39] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017, citing The Republic v. Banda, p. 3, Sentence Rehearing No. 9 of 2016, High Ct. of Malawi, Apr. 4, 2016.
[40] U.S. Dept. of State, Malawi 2016 Human Rights Report, http://www.state.gov/documents/organization/265486.pdf, pp. 6, 7, last accessed Mar. 8, 2018.
[41] Bwighane Mwenifumbo, affiliated with Legal Aid Bureau, Email to DPW, DPW Malawi Doc. E-2, Jan. 11, 2018. U.S. Dept. of State, Malawi 2016 Human Rights Report, https://www.state.gov/documents/organization/265486.pdf, p. 5, last accessed Mar. 8, 2018.
[42] Nicolette Jackson, Malawi prisons: Are inmates at the end of the food chain?, The Nation, http://mwnation.com/malawi-prisons-are-inmates-at-the-end-of-the-food-chain/, Oct. 7, 2016. U.S. Dept. of State, Malawi 2016 Human Rights Report, https://www.state.gov/documents/organization/265486.pdf, p. 5, last accessed Mar. 8, 2018.
[43] Republic of Malawi (Constitution) Act, sec. 42(2)(f)(5), Act No. 20 of 1994, May 18, 1994, as amended through to 2017.
[44] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[45] Malawi Resentencing Project Case Database, as analyzed by the Cornell Center on the Death Penalty Worldwide, Aug. 2017.
[46] Mandy Podani, Pricey justice for Malawi, The Times Group, https://www.times.mw/pricey-justice-for-malawi/, Jul. 6, 2017.
[47] Mandy Podani, Pricey justice for Malawi, The Times Group, https://www.times.mw/pricey-justice-for-malawi/, Jul. 6, 2017.
[48] The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, p. 5, Apr. 2015–May 2015.
[49] Bwighane Mwenifumbo, affiliated with Legal Aid Bureau, Email to DPW, DPW Malawi Doc. E-2, Jan. 11, 2018.
[50] Mandy Podani, Pricey justice for Malawi, The Times Group, https://www.times.mw/pricey-justice-for-malawi/, Jul. 6, 2017.
[51] 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.
[52] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[53] Mandy Podani, Pricey justice for Malawi, The Times Group, https://www.times.mw/pricey-justice-for-malawi/, Jul. 6, 2017.
[54] Poor law: The rise of paralegals, The Economist, https://www.economist.com/news/middle-east-and-africa/21709011-rise-paralegals-poor-law, Oct. 20, 2016.
[55] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[56] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[57] Julinda Beqiraj and Lawrence McNamara, International Access to Justice: Legal Aid for the Accused and Redress for Victims of Violence: A Report by the Bingham Centre for the Rule of Law, p. 22, International Bar Association, https://www.biicl.org/documents/749_international_access_to_justice_report_october_2015.pdf?showdocument=1, Oct. 2015.
[58] Mandy Podani, Pricey justice for Malawi, The Times Group, https://www.times.mw/pricey-justice-for-malawi/, Jul. 6, 2017.
[59] Brian Ligomeka, Malawi’s murder suspects overstay in prison, News 24, https://www.news24.com/Africa/News/malawis-murder-suspects-overstay-in-prison-report-20161001, Oct. 1, 2016.
[60] U.S. Dept. of State, Malawi 2016 Human Rights Report, p, 6, http://www.state.gov/documents/organization/265486.pdf, last accessed Mar. 11, 2018.
[61] U.S. Dept. of State, Malawi 2016 Human Rights Report, p. 6, http://www.state.gov/documents/organization/265486.pdf, last accessed Mar. 11, 2018.
[62] 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.
[63] 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. Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[64] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[65] U.S. Dept. of State, Malawi 2016 Human Rights Report, p. 5, http://www.state.gov/documents/organization/265486.pdf, last accessed Mar. 11, 2018.
[66] U.S. Dept. of State, Malawi 2016 Human Rights Report, http://www.state.gov/documents/organization/265486.pdf, p. 5, last accessed Mar. 11, 2018.
[67] Ian Twea, affiliated with Barnett and James legal firm, interviewed by the Cornell Center on the Death Penalty Worldwide, Jul. 13, 2017.
[68] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-3, Mar. 28, 2018.
[69] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[70] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[71] Katie Campbell, affiliated with Reprieve, Email to DPW, DPW Malawi Doc. E-1, Dec. 19, 2017.
[72] For example, in the case of Harrison Raviwa, in his capacity as Village Chief, Mr. Raviwa escorted a group of villagers who had committed an act of mob justice to the police station. Upon arrival, Mr. Raviwa and the six others were all detained, but ultimately, Mr. Raviwa alone was sentenced for a murder committed by the group. The Republic v. Harrison Raviwa, para. 5, Sentence Rehearing No. 17 of 2016, Post–conviction statement of Charles Sani, Dec. 31, 2015.
[73] For example, see the case of The Republic v. Abraham Phonya, p. 36, Sentence Rehearing No. 2 of 2017, High Court of Malawi, Defense Submissions, Dec. 9, 2016.
[74] For example, see the case of The Republic v. George Mshani, where Mr. Mshani was arrested seemingly solely because he was Tanzanian and the police were looking for a Tanzanian suspect. The Republic v. George Mshani, pp. 2–4, Sentence Rehearing No. 34 of 2017, High Ct. of Malawi, Defense Submissions, Jan. 19, 2017.
[75] For example, see the case of The Republic v. Charles Dick, Richard Jiba James, Charles Nyapala and Gray Zimba, where Judge Kapindu noted that the case against two of the four convicts appeared “extremely tenuous” and highlighted the fact that even the State agreed that the two were “wrongly convicted.” The Republic v. Charles Dick, Richard Jiba James, Charles Nyapala and Gray Zimba, para. 11, Sentence Rehearing No. 69 of 2015, High Ct. of Malawi, Judgment, Mar. 4, 2016.
[76] Rex Chikoko, Torture for Confessions, The Nation, http://mwnation.com/torture-for-confessions/, Apr. 29, 2017. Fidelis Edge Kanyongolo, Malawi: Justice Sector and the Rule of Law, AfriMap and Open Society Initiative for Southern Africa, p. 107, 2006.
[77] Article 19 of the Constitution of Malawi, as well as Malawi’s international law obligations, specifically Article 7 of the International Covenant on Civil and Political Rights, which relates to the prohibition against torture, and Article 15 of the Convention Against Torture, which imposes an obligation upon states parties to ensure that any statement made as a result of torture shall not be admissible as evidence. Republic of Malawi (Constitution) Act, sec. 19, Act No. 20 of 1994, May 18, 1994, amended 2010. ICCPR, art. 7, 999 U.N.T.S. 171, Dec. 16, 1966.
[78] Malawi Resentencing Project Case Database, as analyzed by the Cornell Center on the Death Penalty Worldwide, Aug. 2017. Rex Chikoko, Torture for Confessions, The Nation, http://mwnation.com/torture-for-confessions/, Apr. 29, 2017. Fidelis Edge Kanyongolo, Malawi: Justice Sector and the Rule of Law, AfriMap and Open Society Initiative for Southern Africa, p. 107, 2006.
[79] Freedom House, Malawi: Freedom in the World, 2016, https://freedomhouse.org/report/freedom-world/2016/malawi, 2016.
[80] Malawi Resentencing Project Case Database, as analyzed by the Cornell Center on the Death Penalty Worldwide, Aug. 2017.
[81] For example, see the case of The Republic v. Clitus Chimwala, p. 3, Sentence Rehearing No. 39 of 2015, High Ct. of Malawi, Defense Submissions, Jul. 9, 2015.

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

In 2014 the United Nations Human Rights Committee called on the Malawi government to consider ratifying the Second Optional Protocol to the ICCPR and to reevaluate its penal code to ensure that the death penalty, if imposed at all, is reserved for the only the most serious offenses. [1] However, to date, the Malawi Penal Code still lists non-homicide offenses such as rape, robbery, and burglary as punishable by death. [2]

Decisions of Other Human Rights Bodies

In 2015, Malawi’s human rights record was evaluated by the Human Rights Council as part of the Universal Periodic Review process. Malawi declined recommendations to abolish the death penalty, citing “constitutional values and ideals, national priorities and various sectorial policies.” [3] Government officials have indicated to the Human Rights Council that there “are no immediate plans of abolishing the death penalty.” [4] Malawi’s Solicitor General and Secretary for Justice added that, in 2006, the government tried to eliminate the death penalty but could not garner enough public support. [5]

Additionally, the United Nations Special Rapporteur on the Right to Food has recently expressed concerns about the Malawian government’s non-compliance with the Standard Minimum Rules for the Treatment of Prisoners, particularly the deprivation of “the right to adequate food. [6]

References

[1] UN commends Malawi set free 13 persons on death row: Kafantayeni Justice, Nyasa Times, http://www.nyasatimes.com/un-commends-malawi-set-free-13-persons-on-death-row-kafantayeni-justice/, May 9, 2015.
[2] The Advocates for Human Rights & World Coalition Against the Death Penalty, Submission to the 22nd Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council: Malawi, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, pp. 3–4, Apr. 2015–May 2015.
[3] U.N. Human Rights Council, Human Rights Council Adopts Outcomes of the Universal Periodic Review of Malawi, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16494&LangID=E, Sep. 24, 2015.
[4] Malawi will not abolish the death penalty, Nyasa Times, http://www.nyasatimes.com/malawi-will-not-abolish-the-death-penalty-un-told/, Jul. 11, 2014.
[5] U.N. Human Rights Council, Human Rights Council Adopts Outcomes of the Universal Periodic Review of Malawi, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16494&LangID=E, Sep. 24, 2015.
[6] U.N.G.A. Human Rights Council, Twenty-Fifth Session, Report of the Special Rapporteur on the Right to Food, U.N. Doc. A/HRC/25/57, Jan. 24, 2014.

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

Reprieve
PO Box 72054
London EC3P 3BZ
Tel: +44 (0) 207-553-8140.
info@reprieve.org.uk

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

Cornell Center on the Death Penalty Worldwide
Cornell Law School, Hughes Hall
Ithaca, New York 14853
deathpenaltyworldwide@cornell.edu
www.deathpenaltyworldwide.org

Helpful Reports and Publications

Justice Denied: A Global Study of Wrongful Death Row Convictions, Cornell Center on the Death Penalty Worldwide, http://www.deathpenaltyworldwide.org/pdf/innocence_clinic_report_2018_R4_final.pdf, Jan. 2018.

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, https://www.opensocietyfoundations.org/sites/default/files/malawi_20060912.pdf, 2006.

Intl. 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.

Malawi Death Penalty, The Advocates for Human Rights & World Coalition Against the Death Penalty, http://www.theadvocatesforhumanrights.org/uploads/malawi_hrc_death_penalty_2014.pdf, Apr. 2015–May 2015.

Additional notes regarding this country

None.

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