Supreme Court’s U-turn on death penalty irks legal activists

Malawian legal activists have faulted the Malawi Supreme Court’s U-turn on the abolition of the death penalty, saying it threatens the country’s reputation for judicial independence.

The Supreme Court’s April 28, 2021 original judgement in Charles Khoviwa v The Republic stated that capital punishment is unconstitutional in the country.

However, the Malawi Supreme Court of Appeal says it never abolished the death penalty and that High Court judges are free to sentence murder convicts to death claiming the issue was never brought before the court for consideration.

In a perfected ruling, Chief Justice Andrew Nyirenda, Rezine Mzikamanda, Anaclet Chipeta, Lovemore Chikopa, Frank Kapanda and Edward Twea have distanced themselves from the judgment saying Justice of Appeal Dunstain Mwaungulu (now retired) wrote his own onions.

The twisting of the matter automatically means for the meantime the death penalty is applicable a development which legal activist Alexious Kamangila described as unfortunate claiming that revising a finalised judgement sets a dangerous precedent.

Kamangila told Malawi24 that a judgement is considered perfected after 14 days and that for the Supreme Court to revise a judgement four months after it was published, is unprecedented, and creates suspicion that there has been outside interference in the judicial process

He further said human rights campaigners celebrated abolition as a moment of Malawian leadership that would inspire other African nations to follow suit, hence the reversal comes as a significant blow.

“The Supreme Court’s ruling abolishing the death penalty was applauded domestically and around the world as a progressive judgement and a key moment in Africa’s turn away from capital punishment.

“This confusing so-called ‘perfected’ judgement throws that progress into doubt and reflects poorly on Malawi’s justice system. If Khoviwa can be reversed backdoor as it has, no judgment is safe. This is nothing to do with abolition or retention of the death penalty, it is a question of rule of law.” said Kamangila.

The legal expert still believes abolition will come soon. “The judiciary can still review to uphold Khoviwa as earlier pronounced.

“If it will not, there should be a Bill to remove the death penalty from Malawi’s law for good.” he added.

Law Professor Garton Kamchedzera, of Chancellor College, said the Supreme Court Justices had been negligent in signing such a momentous judgement into law, only to apparently change their minds and attempt to reverse course months later.

He told one of the country’s media houses that: “One can say that there was a failure in the discharge of duty with regard to making sure that the process was credible… It shouldn’t get to the point where people are asking questions ‘how did this happen?’”

In his reaction, Khumbo Soko, former president of Malawi Law Society, said: “I think it is regrettable episode. It certainly calls for review of the protocols that the court has for managing the process of decision making. For me, a draft judgment should be thoroughly vetted by all members of the panel. These protocols, if they are there, clearly failed and let our apex court down in this case.”

People on death row and awaiting trial for capital offences have become pawns amidst this confusion a thing which Psychologist Ndumanene Silungwe warned that such twists and turns can cause death-row syndrome having their expectations raised by the original judgement.

Meanwhile, Mwaungulu has since told the local media that he only gave his colleagues a draft copy of his opinion.

“But they read it and gave it to the public as the position of the court. I now see their opinions inserted in the judgement I wrote. I was entitled to see their opinions before this was made public; that never happened. Ask them. They read my judgement in my absence, but I was never shown their opinions that are coming now, why this change of heart?” said Mwaungulu