CLA News / ‘A Death Penalty’ Free Africa (Malawi) Is Possible by Alexious Emmanuel Silombela Kamangila LLB (Hons) Mw LLM (NUIG)
From the word go, the colonization of Africa lacked legitimacy. Thus, to suppress dissent against colonization, colonialists like the British resorted to brutal mechanisms, including the imposition of harsh criminal codes over their colonies. With particular reference to the SADC region, the Britons introduced a model code that imposed a mandatory regime of capital punishment on offences like murder and treason in Malawi, Zambia, and Zimbabwe. This aggressive criminal code was loggerheads with the colonized people’s guiding principle of ubuntu or umunthu, which espouses virtues of humanity, reciprocity, and reconciliation and frowns upon a criminal justice system that is founded upon the principles of retribution.
Even at the peak of colonialism, Africa’s dislike for Death Penalty manifested itself in the African people’s continued tendency to banish those who had committed heinous offences from their communities rather than summarily executing them in the administration of their customary laws. The fact that the number of executions decreased as African countries began to obtain independence from their colonial masters, is telling of an African perspective to Capital Punishment. Africa’s movement towards abolition gathered more steam with the advent of plural politics across the African continent in the early 1990s and has continued apace to the latter day. This reveals the fact that the death penalty in an Independent Africa was solely for preserving authoritarian regimes. So decisive has Africa’s rejection of the death penalty been such that as of today, African states that actively carry out executions are the exception rather than the norm. Many countries have abolished the death penalty both in law and in fact. Even many have abolished it in fact, even though they retain it under statutes, rendering it obsolete in the process. Recently in the SADC region, Zambia took the enviable step of completely abolishing the death penalty from the laws of Zambia. This came hot on the heels of another five African countries that have completely abolished the death penalty in the last three years. Africa’s direction on death penalty is clear, ultimate abolition.
Proponents of death penalty continue to unconvincingly argue that the death penalty is a potent deterrent against further commission of crime. This argument falls flat on its face when confronted with the anecdotal evidence collected from across the globe, which decisively shows that the crime rate tends to rise in places where the death penalty is actively implemented. In some instances, death penalty proponents argue that death penalty is a useful protective mechanism for the vulnerable who are often victims of violent crime, like persons with albinism, children, and women. Apart from being a poor argument for lack of empirical evidence to back it up, this argument also stands on sinking sand for being reactive when the vulnerable groups are better protected by proactive mechanisms before the occurrence of crime. In fact, vulnerable groups like women and children, suffer when a husband or father has been sentenced to death, thus the death penalty affects others, especially the immediate family. The death penalty, therefore, causes more pain and suffering.
On the other hand, the anti-death penalty school of thought largely bases its arguments on the inherent risk of executing innocent people due to the fallibility of even the best justice systems in the world. Sadly, for the pro-death penalty camp, this poignant argument has remained unanswered. Anti-death penalty advocates further and without answer argue that the centrality of the right to life to the idea of human rights simply means that the death penalty Is in every circumstance irreconcilable with the human rights dispensation that the World and Africa, in particular, has embraced.
Closer to home, Malawi is on the verge of abolition. To be clear, Malawi has sat on the cusp of abolition since the Constitutional Court rendered the mandatory regime of the death penalty unconstitutional in 2005. That landmark decision led to the re-sentencing of more than 150 death row inmates, none of whom was re-sentenced to death. The Constitutional Court’s decision and the jurisprudence emanating from the re-sentencing project have virtually rendered the death penalty, even under the discretionary regime, untenable in democratic Malawi.
Beyond the Court’s rejection of death penalty, the people of Malawi have also decisively, both in implicit and explicit terms, spoken against the death penalty. Implicitly, Malawians have watched with indifference a succession of presidents sit on death warrants of those sentenced to death for over thirty years. Even in 2021, when the Apex Court in Malawi declared the death penalty unconstitutional before procedural reversing their decision, Malawians, who are known for protesting seismic decisions even if they emanate from the Courts, did not protest the decision.
In recent times, Malawians have welcomed with excitement the news of the commutation of death sentences of all the death row inmates to life imprisonment in 2022 by the Malawian President. There is no one on the death row and with the Ministry of Justice taking a policy decision not to ask death sentences in murder cases, the condemned section (where those sentenced to death are incarcerated) is likely to be empty. In more explicit terms, over 88.7% of Malawians supported abolition during the 2022 public inquiries on the death penalty that was commissioned by the Parliament of Malawi. More recently, most delegates at the Ministry of Justice commissioned a national consultative conference on the abolition of death penalty supported abolition.
Interestingly, in terms of preparedness to abolish the death penalty, Malawi is easily ahead of even states who have already abolished the death penalty. Never was there a better time to abolish the death penalty in Malawi than NOW! And in two decades, Africa will be free from Death Penalty.
Author: Alexious Emmanuel Silombela Kamangila LLB (Hons) Mw LLM (NUIG)
Designation: Clinical Legal Education Lecturer, Reprieve Fellow
Organisation/Law Firm: University of Malawi
Email Address: alexiuskamangila@gmail.com akamangila@unima.ac.mw
Country: Malawi
