The Supreme Court of Appeal in Malaw ruled Wednesday that the imposition of the death penalty is unconstitutional and contrary to the right to life guaranteed by the Constitution of Malawi. It further ordered the re-sentencing of all convicts facing execution.
The ruling comes following an appeal by Charles Khoviwa, who, despite having no prior convictions, was sentenced to death following his conviction for murder in 2003. Under the now-defunct Section 210 of the Penal Code of Malawi, the imposition of the death penalty was mandatory for all sorts of murder, whether premeditated or involuntary.
While the appellant’s sentence was however commuted to life imprisonment in 2004, a Malawi Court had previously dismissed the appeal and had re-imposed the death penalty on the appellant, claiming that “he deserves the death sentence.” The court, however, reversed the decision, holding that “any sentence passed under the defunct section 210 of the Penal Code is unconstitutional or, if subject of appeal to this Court, tainted with unconstitutionality.”
In its landmark judgment, the court further held that;
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. The death penalty not only negates, it abolishes the right. Consequently, sections 25, 26, 210 and others prescribing the death penalty are against Part IV provision of the Constitution. Their validity could not be based on section 5 of the Constitution. The Court below actually invalidates the mandatory nature of section 210 of the Constitution based on rights under Part IV of the Constitution.
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.