Malawi Supreme Court Rules Death Penalty Is Unconstitutional

Updated 08.25.21


The Malawian Supreme Court of Appeal on August 18 issued a “perfected” judgment in Khoviwa v. The Republic that affirms the unconstitutionality of mandatory death sentences but, in a reversal of the earlier judgment, holds that trial judges still have discretion to impose the death penalty in capital cases. Critics said the revised judgment contravenes procedural rules and the United Kingdom called on the Malawian parliament to abolish the death penalty.

Malawi’s highest court today outlawed the death penalty, 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,” the court reasoned.

“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.

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

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% 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.