Expert trashes call for referendum on death penalty


As debate on whether to abolish death penalty or not continues, one of Malawi’s legal expert has trashed a call by Malawi Law Society (MLS) for a referendum on death penalty.

This comes following a public hearing on whether the country should abolish death penalty or not which was held on Friday May 20, 2022 in Blantyre, organized by the Parliamentary Legal Affairs Committee (PLAC).

Presenting his views on the matter, Malawi Law Society president Patrick Mpaka said his institution is of the view that Malawi Parliament should call for a referendum in 2025 where he said authorities could get the right direction on the matter.

Mpaka indicated that section 196 (a) of the constitution of Malawi, states that some proposed amendments have to be put to a referendum, as the country is regarded as collective wisdom based country.

“What we would suggest is to seek collective wisdom of the people. Section 196 points to the collective wisdom to seek a referendum in 2025. This issue should be presented to people, we know there is procedure to use parliament but the best way is to advance the issue on both sides freely. What is the will of the people?” said Mpaka.

However, Alexious Kamangila, the legal expert who is also Legal Clinic Manager and Reprieve Fellow, says there is no need for a referendum arguing that the Constitution of Malawi does not prescribe for the death penalty.

Kamangila who has been advocating for the abolition of death penalty, said he finds the call for a referendum on the matter misplaced because it is only the penal code that prescribes for the punishment and not the constitution.

“The calls for a referendum are misplaced or misguided. As it is only the Penal Code that prescribes for the death penalty, hence the amendment of the Penal Code is all that is needed in order for the death penalty to be abolished.

“Further, I have argued that even if we were to amend Section 16 of the Constitution by way of deleting the proviso, that will not need a Referendum as thought or advanced, because Section 196 of the Constitution calls for a Referendum as an optional way to amend for entrenched provisions like Section 16 where the amendment will affect the substance of the section, which is the right to life and not death penalty, therefore, a referendum is not required,” argued Kamangila.

He continued to say referendum is not a threat to abolition of death penalty itself but says it is just unjustified and not relevant since majority of Malawians already understands and supports the abolition.

Concurrently, Vice Chairperson for PLAC McDowell Mkandawire who was speaking to journalists after the hearing, said he is very sure that the death penalty law can be repealed without a referendum as suggested by the Malawi Law Society.

“I am not a legal minded person but as far as those that are mentoring our group are concerned, we feel this law can actually be changed without having a referendum. So we are looking forward to seeking views from our mentors so that they tell us which section has to be considered and we believe parliament can change those sections so that death penalty is scraped out,” explained Mkandawile.

Mkandawire further told journalists that after successfully holding the three regional public hearings on the matter, the committee will compile a report which is expected to be presented in the next parliament sitting.

Meanwhile, a majority of the stakeholders that attended and presented their views on matter, have shown extreme support for the abolition of death penalty with Pastor Dr Zacc Kawalala of the Evangelical Association of Malawi which represents 68 denominations, describing the punishment as an infringement of the right to life.

Dr Kawalala told the gathering that he is of the view that death penalty be repealed because it has seen innocent people previously being condemned to death which he said is not a right punishment in a God fearing country like Malawi.

On the other hand, litigation officer for Centre for Human Rights Education Advice and Assistance (CHREA), Ruth Kaima, said there is need to abolish the punishment claiming it has failed to prove that it really helps to deter crimes, as others put it.

“The death penalty does not deter the commission of crimes.
The UN High Commissioner for Human Rights reiterated that there is no evidence that the death penalty deterred crime more effectively than any other punishment. So, it must be abolished,” said Kaima.

Records presented at the meeting by the Malawi Prison Service, shows that the country has 25 prisoners on death row, however, Aaron Kaunda, Thomas Damba and Smart Maliro who represented the service says, Malawi does not need the punishment claiming it hinders inmates from going through the rehabilitation program.