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“This is victory for justice and constitutionalism.”

Malawi’s highest court, The Supreme Court of Appeal this week Wednesday outlawed the death penalty labelling it unconstitutional and ordered the re-sentencing of all convicts facing the hangman’s execution.

The court determined in the ruling that “the death penalty, since it is a derogation from the right to life, is impermissible” under the nation’s constitution.”

“The essence of the right to life is life itself—the sanctity of life. The right to life is the mother of all rights. Without the right to life other rights do not exist,” ruled the court.

“Derogation from the right to life is prohibited directly and clearly by the Constitution,” the court wrote. Because “[t]he death penalty not only negates, it abolishes the right” to life, the court held that it violates Malawi’s constitution.

The Supreme Court’s decision means that life imprisonment is now the maximum sentence in Malawi, reserved only “for the worst instance of crime.”

Responding to the news that Supreme Court of Appeal in Malawi has ruled the death penalty unconstitutional, Amnesty International director for East and Southern Africa, Deprose Muchena, said: “We welcome the judgment of the Supreme Court of Appeal declaring the death penalty unconstitutional in Malawi. This is a vital victory against the death penalty and strengthens the right to life in the country. The death penalty is ultimate cruel, inhuman and degrading punishment and it has no place in this world.

The death penalty, Muchena said, is a violation of the right and an assault on human rights.

‘Landmark ruling’

In Malawi, capital punishment has long been mandatory in Malawi for prisoners convicted of murder or treason, and optional for rape. Violent robberies, house break-ins and burglaries could also be punishable by death or life imprisonment.

Executions have however not been carried out since Malawi attained her second republic under the first democratically elected president, Bakili Muluzi, who opposed the ultimate life-taking punishment when he ascended to power in 1994.

In what is being termed as a landmark ruling, the Supreme Court judges hearing an appeal by a murder convict declared the death penalty “unconstitutional”, de facto abolishing the punishment.

Malawi Human Rights Commission executive secretary Habiba Osman said: “This is victory for justice and constitutionalism.”

“The death penalty… is tainted by the unconstitutionality discussed,” the judgment said which was unanimously agreed by all the seven justices of appeal on the panel.

Malawi last executed around two dozen prisoners in 1992, according to Amnesty International.

However, More that 30 countries in Africa still have death penalty on their books, but just under half of them have actually carried out executions in the recent years.

At the end of 2020, 27 people were known to be under a death sentence in Malawi.

The nation’s highest court ordered that they must be re-sentenced, most likely to a term of years. “Those who have served long periods of their life or long sentences,” the court wrote, “are likely to get shorter terms or immediate release.”

No one has been executed in Malawi since 1975, the court wrote. The nation’s first democratically elected president, Bakili Muluzi, opposed capital punishment when he took office in 1994, and every president since has refused to sign any death warrants.

Across sub-Saharan Africa, recorded executions declined by 36 percent last year, from 25 in 2019 to 16 in 2020, consistent with a robust global trend against capital punishment.

The number of executions worldwide in 2020 was the lowest recorded by Amnesty International in the past decade. Indeed, Malawi’s high court observed in today’s decision that the death penalty “is against international human rights standards.”

Malawi is the 22nd country in sub-Saharan Africa to abolish the death penalty, following Chad’s abolition of capital punishment for all crimes last May.

Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law of a criminal offence – capital punishment should be distinguished from extrajudicial executions carried out without due process of the law.

There has always been a de facto moratorium on death sentence in Malawi since May 1994, and as a result, death row phenomenon has never been an issue in Malawi.

In the Malawi history, there is no known case of court-martial imposing death sentence. In fact, it should be stated that Malawi has never been at war with any of its neighbours let alone any other State.

Cases of treason have actually involved politicians and those cases have been dealt with by civilian courts and coup d’etat are also unheard of and an alien notion in Malawi.

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