Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General

Chapter 9
Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General

Sandra Babcock and Ellen Wight McLaughlin


Limbikani Wilson Mtambo was only 16 in 1997, when he was arrested for the murder of his wife. After four years on ‘remand’ and a trial with numerous procedural irregularities, he was convicted in 2001 of murder, a crime carrying a mandatory death sentence. Although Malawi’s president commuted his sentence to life without parole, he has no prospect of release. During 15 years in prison, he has suffered from tuberculosis, suicidal thoughts, and chronic headaches and seizures, which may stem from severe beatings received as a child.

In 2007, in Kafantayeni and Others v. Attorney General,1 the Malawi High Court invalidated the sentence imposed on Mr. Mtambo – the mandatory penalty of death for murder. It held that Malawi’s constitution and international law forbid the automatic application of the death penalty. Instead, sentences must be imposed with regard for the circumstances of the individual and the offence.

For the approximately 200 offenders in Malawi sentenced to the mandatory death penalty, the Kafantayeni judgment promised hope, even possible release for those who had served lengthy terms or whose circumstances were compelling. Yet five years later, 23 of these individuals remain on Malawi’s death row in Zomba Prison. Meanwhile, the 169 prisoners whose sentences were commuted to natural life have little hope of release from prison before death, as their sentences provide no opportunity for parole.

This case study of the death penalty in Malawi demonstrates the challenges of implementing international principles in a domestic context. We discuss in Sections II and III how the mandatory death penalty has been abolished in much of the Caribbean and Africa through the incorporation of international and foreign human rights jurisprudence into domestic law, and how, in the wake of its demise, mitigating evidence has affected capital sentencing. In Section IV, we review the Kafantayeni judgment and its implementation. Section V describes the population sentenced to the mandatory death penalty in Malawi and the mitigating factors these prisoners’ cases present. Section VI explores how the principles underpinning Kafantayeni might be put into practice.

The Mandatory Death Penalty

The Death Penalty in Malawi

The death penalty in Malawi is, as Schabas (1997, 33) writes of the death penalty in Africa, ‘very much a part of the legacy of colonialism.’ In 1930, Britain imposed a Model Criminal Code on its colonies (Lehrfreund, 2007). The death penalty was a maximum punishment for several crimes, including rape and armed robbery. But under Section 210 of the Penal Code, judges were required to impose a death sentence upon those convicted of murder or treason.

The end of colonial rule in Malawi in 1964 was followed by the thirty-year dictatorship of Hastings Banda. The post-independence constitution was replaced by one ensuring a strong executive, but the country retained its colonial-era penal code. Hundreds were executed under Banda (Novak, 2009). According to Hands Off Cain (2012), 823 death sentences were handed down between 1972 and 1993; 299 prisoners were executed, the rest dying in prison or pardoned.

A transition to democracy began in 1994, with the election of Bakili Muluzi. A new constitution was designed to secure the separation of powers and protect individual rights, including the right to life and to be free from torture and cruel, inhuman, or degrading treatment. These rights, also found in the constitutions of other former British colonies, echo the fundamental freedoms set out in the central instruments of international human rights law, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), as well as regional instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the African Charter on Human and People’s Rights. Despite these political transformations, however, the new constitution retained the death penalty (Novak, 2009). The government made no substantive amendments to the offence of murder in the Penal Code or to the mandatory death sentence for murder and treason.2

Upon taking office, Muluzi commuted all existing death sentences to life imprisonment (Amnesty International [AI], 1995). Nevertheless, the courts continued to hand down mandatory death sentences (AI, 1995). Although the Penal Code allows the death penalty to be imposed for rape, robbery, burglary, housebreaking, and treason,3 all 200 prisoners sentenced to death between 1995 and 2007 were convicted of murder (Center for International Human Rights, 2010).

On 23 July 1997, Muluzi again commuted all existing death sentences to life imprisonment and pledged not to sign execution orders (AI, 1997). On 9 April 2004, he commuted 79 new death sentences and freed 320 other prisoners.4 Bingu wa Mutharika, Muluzi’s successor from May 2004 until April 2012, also declined to sign death warrants (Hands Off Cain, 2012). Thus, no person has been executed under the current constitution, and Malawi is considered ‘abolitionist de facto.’5 Even so, as of March 2012, 32 prisoners remained on death row, 23 of whom received mandatory death sentences before Kafantayeni. Their cells in Zomba Prison are literally in the shadow of the gallows. Meanwhile, those whose sentences were commuted to life have had no opportunity to receive punishments tailored to their particular crimes and circumstances.

Abolition of the Mandatory Death Penalty in the Commonwealth Caribbean

The international trend toward abolition of the mandatory death penalty for murder has been detailed elsewhere (Lehrfreund, 2007; Tittemore, 2004; Harrington, 2004). Here, we focus on the mandatory death penalty in the Commonwealth Caribbean and Sub-Saharan Africa. Although the death penalty remains popular in the Caribbean – at least among politicians eager to respond to a high crime rate6 – its use has become so rare that most of the region is considered abolitionist de facto.7 The mandatory death penalty has been abolished in ten of twelve Commonwealth Caribbean countries.8 These restrictions are a striking example of how human rights principles may become universal.

Beginning in the mid-1990s, Caribbean and British lawyers affiliated with the London-based Death Penalty Project challenged the mandatory death penalty in domestic and international tribunals in the Commonwealth Caribbean. The first decisions came from the United Nations Human Rights Committee (HRC) and the Inter-American Commission on Human Rights (Tittemore, 2004). During 1999–2001, the latter held in a series of cases that the mandatory death penalty in Trinidad and Tobago, Jamaica, Grenada, and the Bahamas violated the American Convention on Human Rights, which protects the rights to life, humane treatment and a fair trial.9 And in 2000, the HRC held that the arbitrary nature of the mandatory death penalty in St.Vincent and the Grenadines violated the right to life guaranteed by Article 6(1) of the ICCPR.10

Although arguably non-binding (Cerna, 1997, 752), these decisions allowed advocates to make a stronger case in domestic tribunals. In 2001, the Eastern Caribbean Court of Appeal held in Spence and Hughes v. The Queen that the mandatory death penalty was an inhuman and degrading punishment under the constitutions of Saint Lucia and St. Vincent and the Grenadines.11 In March 2002, in a series of three cases from Belize, St. Lucia, and St. Kitts and Nevis, the Judicial Committee of the Privy Council held that the mandatory death penalty violated constitutional proscriptions against inhumane and degrading punishment.12 In these decisions, it relied explicitly on international jurisprudence (Tittemore, 2004).

A cascade of judgments followed. The Inter-American Court of Human Rights declared that the mandatory death penalty in Trinidad and Tobago violated ‘the inherent dignity of the human being and the right to humane treatment protected in Article 5(1) and 5(2) of the American Convention,’ as well as the right to life contained in Article 4(1).13 The Privy Council subsequently held the mandatory death penalty unconstitutional in Jamaica and the Bahamas.14

The developments in the Caribbean have exemplified, as Tittemore (2004) writes, ‘the progressive integration of international human rights standards into the domestic legal systems of states.’ Critics claim that international tribunals lack sensitivity to domestic concerns (Dames, 2011), and the Privy Council’s decisions have animated efforts to abolish its appellate jurisdiction and to amend national constitutions to preserve the death penalty (Tittemore, 2004). But perhaps because of their remoteness from domestic pressures, the Privy Council and international human rights bodies have invalidated hundreds of death sentences while creating precedents influential around the world.

Abolition of the Mandatory Death Penalty in Africa

Similar post-colonial constitutions made it possible to transport death penalty jurisprudence from the Caribbean to Africa. New bills of rights modelled on provisions in existing charters, such as the European Convention and the Universal Declaration of Human Rights (Harrington, 2004), commonly included the rights to life, to be free from inhuman and degrading punishment, and to a fair trial.

The Death Penalty Project partnered with Ugandan lawyers to represent 417 prisoners on Uganda’s death row in a challenge to the mandatory death penalty (Lehrfreund, 2007). In Kigula, Uganda’s Constitutional Court held the mandatory death penalty to be arbitrary, inhuman and unconstitutional.15 Upholding the decision, Uganda’s Supreme Court declared that the mandatory death penalty violated constitutional guarantees of equal protection and separation of powers.16

This jurisprudence spread across Africa. The Kafantayeni judgment, discussed below, soon followed. Then, citing Kigula and the Privy Council decisions, Kenya’s Court of Appeal struck down the mandatory death penalty, noting that the relevant Kenyan laws were ‘largely influenced by, and in some cases lifted word for word from international instruments which Kenya has ratified.’17 On 3 August 2009, Kenya’s president commuted the mandatory death sentences of more than four thousand prisoners (Death Penalty Project, 2009). According to the Death Penalty Project (2012), further challenges to the mandatory death penalty are being pursued in Tanzania, Nigeria, and Sierra Leone.

The global demise of the mandatory death penalty is by no means inevitable. Singapore and Ghana have both rejected challenges to the mandatory death penalty.18 According to research compiled by Death Penalty Worldwide, 30 states retain the penalty.19 Even so, the punishment is on the decline, having been discarded by at least 18 countries since 2000 (Hood and Hoyle, 2008, 279–80). These developments have been said to reflect the emergence of ‘a global “common law” of death penalty human rights norms’ and to portend ‘the increasing universality of human rights norms in domestic criminal justice systems worldwide’ (Carozza, 2003).

Consideration of Mitigating Circumstances after the Mandatory Death Penalty’s Demise

To understand how the demise of the mandatory death penalty has transformed the application of capital punishment, we now review the types of evidence that courts have found to mitigate against a death sentence. Domestic jurisprudence is most developed in the United States and India, while international human rights bodies have imposed additional qualifications on the use of capital punishment. We also examine factors considered in re-sentencing offenders originally sentenced to the mandatory death penalty.

General Principles of Mitigation

The first principle that emerges from international jurisprudence is that the death penalty requires special justification. Article 6(2) of the ICCPR states that the ‘sentence of death may be imposed only for the most serious crimes,’ which the Human Rights Committee (1993, para. 8) defines as crimes that result in the loss of life.20 The Human Rights Council’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Human Rights Council, 2007, para. 65) would limit use of the death penalty to ‘cases where it can be shown that there was an intention to kill which resulted in the loss of life.’ It follows from this that unintentional and unpremeditated killings – such as an accidental death during a bar fight – would not warrant the death penalty. Nor should the death penalty be imposed for a murder conviction based on participation in a felony leading to an unintended death.

Courts often reserve capital punishment for crimes rare even among murders in their heinousness. India limits its use to ‘the rarest of rare cases when the alternative option is unquestionably foreclosed.’21 In other words, the presumptive sentence for even highly aggravated murders is life or a term of years.22 In February 2012, the Indian Supreme Court commuted a man’s death sentence to a term of 21 years because his crime – the murder of his wife and three children – lacked planning, and the circumstances suggested that he was mentally imbalanced.23 Similarly, before abolishing the death penalty altogether, South Africa applied it only when a case presented ‘no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.’24

A second principle is that any type of evidence may be ‘mitigating’ if it might generate compassion for the offender or support a plea for leniency. Relevant evidence includes the offender’s character, background, remorse, capacity for reform and lack of future dangerousness, co-operation, and post-conviction behaviour.25 In Mulla, for example, the Indian Supreme Court considered the offender’s ‘mental or emotional disturbance,’ age, likelihood of future violence, potential for rehabilitation, sense of moral justification, duress, mental impairment, and socioeconomic status.26 The court emphasized that the state bore the burden to prove that an offender was beyond reform, and it declined to impose the death penalty on extremely poor offenders with no criminal history. The US Supreme Court has recognized childhood abuse, mental disabilities, and good conduct in prison as important mitigating factors.27 Evidence of mental disorders or mental illness – even if insufficient to support a defence of diminished responsibility – mitigates strongly against the death penalty. The UN Commission on Human Rights (2005) has called upon countries to avoid executing any person suffering from a mental disorder or disability. And in 2002, the US Supreme Court noted an international consensus that ‘mentally retarded offenders are categorically less culpable than the average criminal.’28

Finally, the conditions of detention may be mitigating. The most famous example of this is the ‘death row phenomenon.’ The Privy Council has stated that delay of more than five years between conviction and sentencing may ‘constitute inhuman degrading punishment or other treatment.’29 In Kigula, Uganda’s Supreme Court noted the ‘anguish’ and ‘horrible conditions’ of death row and commuted the sentences of prisoners who had spent more than three years on death row to life imprisonment.30

Jurisprudence from Uganda and the Caribbean

We next examine case law from countries in which the mandatory death penalty has recently been abolished. Uganda and various Caribbean countries have faced the task of re-sentencing hundreds of offenders.

Uganda: The Bwenge Patrick decision  In Kigula, the Supreme Court of Uganda ordered that respondents whose appeals were pending would be heard by the Ugandan High Court ‘only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.’ Uganda’s lower courts were directed to re-sentence those sentenced to death under the unconstitutional regime. Hearings began in 2009, with most conducted by the judges who had convicted the defendants (Lay, 2010, 48).

One of the first hearings was that of Bwenge Patrick, who had been imprisoned for 17 years.31 The judge recognized that the High Court was empowered ‘to pass any judgment it deem[ed] fit.’ She noted that the offender was intoxicated when he killed his wife, and the crime lacked premeditation. Defence counsel emphasized the offender’s alcohol dependency, remorse, good relations with other inmates, lengthy incarceration, and ongoing contact with his family while in prison. The judge concluded that had these circumstances been considered at the original sentencing proceeding, the offender might have received a sentence less than the 17 years already completed. She imposed a sentence of two additional years, the second to be suspended and served under probation.

Caribbean re-sentencing hearings  Privy Council decisions invalidating the mandatory death penalty required Caribbean courts to institute individualized sentencing proceedings for offenders whose sentences had been quashed, as well as those newly convicted of murder. Several principles have emerged to guide discretionary sentencing. First, courts have applied a presumption against the death penalty, requiring justification for its imposition.32 Second, judges have considered materials concerning the offenders’ backgrounds not found in the original case files.33 Third, judges have required social welfare reports for each offender, as well as psychological evaluations where there is a possibility of mental disability.34

In 2002, after the Privy Council invalidated Belize’s mandatory death penalty in Reyes, the petitioner’s case was remitted to the Supreme Court of Belize for re-sentencing. A probation officer’s report detailed the prisoner’s membership in the village council, good works, good conduct in prison, and remorse. The court concluded: ‘A remarkable picture of a hard-working, religious and family-centered and non-violent person without any previous brush with the law emerges of the prisoner from this report, by all account what he did that fateful day was quite out of character.’35 It further concluded that the prisoner was suffering from a ‘major depressive disorder’ at the time of the offence, and called the three years the offender had spent on death row ‘an extenuating consideration not to pass the death sentence.’ The court instead sentenced the prisoner to concurrent life sentences for the murder of a husband and wife.

In Jamaica, legislation enacted in March 2005 provided for the re-sentencing of 38 offenders whose death sentences were invalidated in Watson.36 Ten were re-sentenced to death (subsequently, one conviction was quashed and one sentence commuted). The others received life sentences, with varying time before parole (Ostrowski, 2009, 51). The title plaintiff in Watson was sentenced to life with the possibility of parole after 20 years for the murder of his wife and infant daughter.37 A review of 33 of the hearings completed by Ostrowski (2009) reveals that several principles guided sentencing. First, even where a murder was ‘especially heinous,’ the death penalty was not applied if mitigating factors were present. Lack of premeditation was a mitigating factor in 26 cases. Second, the courts found partial excuses or defences relevant at sentencing even if previously rejected by the jury. For example, one defendant was spared from death because it was unclear that he was the triggerman. Third, the courts ensured that social, community, and psychiatric reports were made for each offender, and accepted as mitigating both ‘past good character’ and ‘a troubled and disadvantaged start in life.’38

Other Caribbean judges have referenced the principles established by the Eastern Caribbean Court of Appeal’s Spence and Hughes decision and the Privy Council cases, declining to impose the death penalty where they found evidence of diminished responsibility,39 provocation,40 and lack of premeditation.41 In 2009, the Eastern Caribbean Supreme Court spared a defendant convicted of robbery-murder from death because, ‘although cold-blooded, brutal and brazen in the form of execution,’ his crime ‘was not the worst of the worst.’42 Similarly, the Court of Appeal of St. Lucia set aside the death sentence of a prisoner convicted of bludgeoning his girlfriend and her daughter to death. The court noted ‘some evidence in the probation report … concerning his work and conduct during the time of his incarceration, which evidence points to the possibility of his reform and rehabilitation.’43 And in March 2012, the Eastern Caribbean Court of Appeal reiterated that before imposing the death penalty, the judge must decide that the defendant falls into the ‘worst of the worst’ category and has no possibility of reform.44

Cross-cultural Issues in Mitigation

The new discretion vested in sentencing judges raises questions about how to translate existing principles of mitigation into new domestic judicial systems, where mitigating factors may be weighed differently and murders may have been committed under circumstances that did not arise in countries from which precedents are drawn.

For example, as we discuss in Section V.c, witchcraft is a common theme in murder cases in Malawi, where belief in witchcraft is widespread (Short and Bedford, 2009, 119). Because the 1911 Witchcraft Act makes it a crime to accuse a person of being a witch,45 witchcraft is not recognized as a defence to murder, and a defendant’s belief in witchcraft is rarely mentioned in homicide proceedings (Short and Bedford, 2009, 124). In Chimenya v. The Republic, the Malawi Supreme Court held that a ‘wild belief that the [victim] was a witch’ was not a mitigating factor.46 Even if witchcraft does not constitute a defence, however, the fact that an offender believed himself or a family member to have been bewitched may be crucial to understanding his mental state. Foreign precedents offer little guidance as to how this factor should be weighed. A state wishing to discourage mob justice stemming from belief in witchcraft may be reluctant to view ‘bewitched’ offenders sympathetically. On the other hand, if an offender sincerely believed that his actions were necessary to protect himself or loved ones, that belief might justify the exercise of compassion.

The role of the victim’s family in sentencing also varies widely. In some pre-colonial African societies, victims’ families were compensated with payment (Schabas, 1997, 34). Few modern judicial systems would allow an offender to avoid sentence by paying the bereaved, but the views of the victim’s relatives are often considered. Victim impact statements are frequently allowed in the United States, despite fears of prejudice to the defendant and arbitrary sentencing.47 There may be benefits to involving the victim’s family. A Ugandan High Court judge commented in Bwenge Patrick that African justice systems historically prioritized ‘harmonious community relations’, including ‘reconciliation between the offender, the victim and their families.’

A more obvious issue is the vast difference in resources available to develop mitigating evidence. Best practices in the United States require a defence team including a mitigation specialist charged with gathering records and preparing the offender’s social history, and defendants’ constitutional rights may be violated if their defence counsel fails to uncover crucial mitigating factors.48 The devotion of such resources to investigation, however, seems impossible in countries where heavy caseloads preclude public defenders from spending significant time on any particular case. Most African judicial systems are plagued by lengthy case backlogs and a scarcity of licensed attorneys. In 2001, there were only 200 attorneys in Mozambique, 400 in Uganda and 125 in Sierra Leone, and these few were concentrated in urban areas (Schonteich, 2008, 105).

The materials available to an advocate may also vary markedly. In the United States, counsel normally gather school, government disability, military, hospital, and psychiatric records, interview family members, teachers, and acquaintances, and seek the assistance of mental health and other experts (Fabian and Kelley, 2007, 26). In countries like Malawi, school and health records may be nonexistent.49 Even travelling to interview family members may be nearly impossible given high fuel prices or poor infrastructure. In the United States and the Caribbean, the state has been required to fund psychiatric evaluations for defendants facing capital charges.50 In Dacosta Cadogan, the Inter-American Court held that Barbados violated an offender’s right to a fair trial by failing to inform him of his right to a psychiatric evaluation.51 But in poorer countries, no competent psychiatrist or funds for an evaluation may be available. If an evaluation can be arranged, the psychiatrist may lack the life history and records essential for a thorough diagnosis.

Add to these problems missing dockets and a lack of judges to handle cases (Ugandan Human Rights Commission, 2007, 35), and the prospects for mitigation hearings that comport with international law seem bleak. One consequence is that countries such as Malawi will need to employ creative strategies to gather evidence, as discussed further below. Another is that courts should not require the level of documentation expected in countries where records are more readily available. While a US court might expect to see low IQ scores and school records demonstrating an offender’s mental impairment, a Malawi court might rely on statements from family members or prison staff.

Implementation of the Kafantayeni Judgment

Overview of Malawi’s Judicial System

Like many former British colonies, Malawi’s criminal justice system is based on common law traditions. Capital murder trials are held before a single High Court judge who determines guilt and imposes sentence. The justice system depends heavily on foreign aid to cover trial expenses. Although Malawi’s criminal procedure code provides for the right of trial by jury, jury trials in homicide cases were discontinued in 2009 by executive fiat,52 a decision justified in part by the cost of selecting and paying jurors.

The Director of Public Prosecutions (DPP) prosecutes serious criminal cases, including treason and homicide. Article 42 of the Malawi Constitution provides that indigent defendants are entitled to free Legal Aid ‘where the interests of justice so require.’ In practice, however, Legal Aid is provided only in homicide cases. The Legal Aid department is perpetually short-staffed and under-resourced; as of March 2012, only 18 lawyers served the entire country. Advocates handle both civil and criminal cases and rarely find time to visit criminal clients. Most also lack transportation to conduct investigations. The starting salary for a Legal Aid lawyer is approximately $300 per month, and low pay leads to high turnover: most advocates leave after a year or two for more lucrative opportunities in private practice.

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