Legal experts in the country are giving mixed views on the recent abolition of death sentence, with some saying the abolition is wrong at law because the Supreme Court was not hearing an appeal of a constitutional nature.
On 28, 2021, a panel of seven judges of the Supreme Court of Appeal ruled that death sentence is unconstitutional because it abolishes a right to life and that it is against international human rights standards.
This followed an appeal by Charles Khoviwa who was in September 2003 convicted of murder and he was sentenced to death. In his appeal, he argued that he was entitled to a re-sentencing hearing.
The Supreme Court agreed, in an 8-1 decision, and ruled that not only that all prisoners on death row should be re-sentenced, but also that no further death sentences should be imposed to anyone in the country.
Reacting to the development in a Facebook post, commissioner for the Malawi Human Rights Commission (MHRC) Dr Sunduzwayo Madise has argued that the Supreme Court of Appeal erred in abolishing the death penalty.
In his argument, Madise said the question whether the death sentence is constitutional or not was not one that was before the Supreme Court and said in any event, that type of question should have been heard by the High Court sitting as a constitutional court and thereafter appealed to the Supreme Court.
He said the Supreme Court in this case was not hearing an appeal of a constitutional nature and added that it is important to state that the Supreme Court is an appellate court, it only decides appeals and has described the Supreme Court judgment as obiter dictum.
“I therefore believe that whatever has been written or said in addition in the Khoviwa case is either obiter dictum (things said by the way – nkhambakamwa) or per incarium (wrong at law).
“The issue of the constitutionality of the death sentence was never before the court at all. It is therefore wrong, in my view, to say the SC has in this case declared the death sentence unconstitutional,” wrote Dr Madise on his Facebook account.
However, responding to Madise’s argument, Social justice activist Alexious Kamangila, who has been advocating against the death penalty, said arguing that the Constitutionality of the Death penalty was never before the Court is absurdity of some gut.
Kamangila who volunteers for the Community of Sant’ Egidio added that first paragraph of Section 16 of the Constitution of Malawi, renders the provisions of the penal code to have no legs to stand on.
He added that as the section and the entire constitution doesn’t provide for the death penalty, no any other law can abolish the mother of all rights and has since urged all in opposition to the abolition, to clearly check the case records again.
“The issue of the constitutionality of death was before the Court. How? The issue Khoviwa brought before the High Court was on seeking rehearing having been sentenced to death, hinges on that he was sentenced to death. I refer anyone in opposition, to go and check the record.
“On the second paragraph of the Section 16, it doesn’t provide for the death penalty. It was just (before this ruling) rendering the imposition of the death penalty constitutional, no any longer of course. So being the supreme law, as the judgment well articulates, a penal code provision cannot abrogate or abolish the mother of all rights,” he said.
Kamangila further said it is important that anyone who challenges the judgment should be giving a summary and should also state what the law is.