The Malawi SC has Declared the Death Penalty to be Unconstitutional

The Supreme Court of Appeal in Malawi ruled on Wednesday that the death penalty is illegal and violates Malawi’s Constitution’s guarantee of the right to life. It also ordered that all convicts facing execution be resentenced.

The decision follows an appeal by Charles Khoviwa, who was sentenced to death in 2003 after being convicted of murder despite having no previous convictions. The death penalty was mandatory under the now-defunct Section 210 of Malawi’s Penal Code for all types of murder, whether premeditated or involuntary. Despite the fact that the appellant’s sentence was commuted to life imprisonment in 2004, a Malawi Court had previously rejected the appeal and re-imposed the death penalty on the appellant, arguing that “he merits the death penalty.” The court overturned the decision, ruling that “any sentence passed under the now-defunct section 210 of the Penal Code is illegal or tainted with unconstitutionality if subject to appeal to this Court.”

The court went on to say in its seminal decision that the meaning of the right to life is life itself—the sanctity of life. The right to life is the most important of all. Other rights do not exist without the right to life. The death penalty not only negates, but also eliminates the right to life. As a result, sections 25, 26, 210, and others that prescribe the death penalty are in violation of the Constitution’s Part IV clause. Section 5 of the Constitution could not be used to support their legality. Based on privileges under Part IV of the Constitution, the Court below invalidates the obligatory existence of section 210 of the Constitution.

Following Chad’s abolition of capital punishment for all offences in May, Malawi has become the 22nd nation in Sub-Saharan Africa to abolish the death penalty.

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