The Supreme Court of Appeal of Malawi holds the death penalty sentence as unconstitutional for being a derogation from the right to life and thus impermissible
May 24, 2021
KIhoviwa v Republic
Miscellaneous Criminal Appeal No 12 of 2017
Supreme Court of Appeal of Malawi
AKC Nyirenda, CJ; EB Twea, JM Ansah, RR Mzikamanda, AC Chipeta, LP Chikopa, FE Kapanda, DF Mwaungulu, AO Kamanga, SCJJA
April 28, 2021
Reported by Faith Wanjiku
Statutes – interpretation of statutes – interpretation of section 210 of the Malawi Penal Code – where section section 210 of the Malawi Penal Code provided for the death sentence which violated the sanctity of life - whether section 210 of the Penal Code of Malawi was unconstitutional for abolishing a Part IV right and being a derogation from the right to life hence impermissible - Constitution of the Republic of Malawi, sections 5, 16, 44, 45 and 46; Penal Code of Malawi,1994, section 210
Statutes – interpretation of statutes – interpretation of legislative provisions alleged to have infringed on constitutional rights – what was the proper way of interpreting a legislative provision alleged to have infringed on constitutional rights – Constitution of the Republic of Malawi, sections 44, 45, 46 and 108
Constitutional Law –sentences – constitutionality of sentences – where courts were required to pass sentences especially those with restrictions on them – what was required of the courts when considering that a particular sentence was not unconstitutional
The appellant and another, who was not brought to trial, were charged at the High Court with the offence of murder. He was convicted on September 16, 2003 and sentenced, under section 210 of the Penal Code then, to a mandatory sentence of death. The sentence of death was commuted, by the President, to a sentence of imprisonment for life on April 9, 2004. In 2007, the appellant appealed against the conviction and death sentence to the Supreme Court of Appeal. The ground of appeal, against the conviction, was that the trial court did not fully explain the possible defence of provocation to the jury.
The ground of appeal against the death sentence was based on the decision in the case of Kafantayeni and Others v The Attorney General (Kafatanyeni); that the mandatory sentence of death for murder, was unconstitutional. The Supreme Court of Appeal fully considered the grounds of appeal and found that the trial court did not err when directing the jury on the defence of provocation and indeed confirmed that the defence was not applicable. The Supreme Court of Appeal found that the appellant pursued the deceased, who was unarmed and running away from a fight, and fatally stabbed him. For the said reasons the Supreme Court of Appeal found that the conduct of the appellant and his colleague was inexcusable and confirmed of the death sentence.
There was no reference, in that judgment, that the President commuted the sentence of death to imprisonment for life. The Supreme Court of Appeal was not made aware that the appellant’s sentence of death had been commuted by the President. The appellant then brought the case again before the High Court seeking a sentencing re-hearing on the basis of the decision of the Supreme Court of Appeal in the case of Maclemonce Yasin v The Republic (Yasin). The High Court refused to grant him a sentence rehearing on the grounds stated by the Supreme Court of Appeal. The appellant then appealed for a sentence rehearing at the Supreme Court of Appeal.
i. Whether section 210 of the Penal Code of Malawi was unconstitutional for abolishing a Part IV right and being a derogation from the right to life hence impermissible.
ii. What was required of the courts when considering that a particular sentence was not unconstitutional?
iii. What was the proper way of interpreting a legislative provision alleged to have infringed on constitutional rights?
Relevant provisions of the law
Constitution of the Republic of Malawi 1994 as amended to 2017
Section 5 –Supremacy of this Constitution
Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid
Section 16 – The Right to Life
The right to life Every person has the right to life and no person shall be arbitrarily deprived of his or her life:
Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life
Section 44 (1) –Limitation of rights
No restrictions or limitations may be placed on the exercise of any rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society.
Section 45 (1) – Derogation and public emergency
No derogation from rights contained in this Chapter shall be permissible save to the extent provided for by this section and no such derogation shall be made unless there has been a declaration of a state of emergency within the meaning of this section.
There shall be no derogation with regard to—
the right to life;
Malawi Penal Code, 1994
Section 210 – Punishment of Murder
Any person convicted of murder shall be liable to be punished with death or with imprisonment for life.
Held by majority
- Courts had a constitutional responsibility to ensure that a particular sentence was constitutional and was not a violation of the right against inhumane, degrading treatment. The duty pervaded even where the sentence was fixed and a court had no discretion in the matter. That duty arose from the Constitution. Every sentence passed was on the face of it unconstitutional; it involved a restriction on, in case of a death sentence, the right to life, property or liberty. In considering constitutionality of a particular sentence, courts were not exercising discretion. They were testing constitutionality and that was not a discretion.
- Mandatory wasnot per se unconstitutional. Section 5 of the Constitution of the Republic of Malawi 1994 as amended to 2017 (Constitution), therefore, never applied to discretion or lack of it in sentencing. That was because there was no constitutional provision for mandatory or discretion on sentencing in the Constitution. The High Court however, proceeded to consider mandatory in terms of violating other rights of the Constitution, those were, the right to dignity under section 19, access to justice under section 41, and fair hearing under section 42 (2) (f) without, of course, regarding that mandatory was a matter for the legislature. In doing so, however, the High Court, resorting, as it did, to section 5 of the Constitution, did not subject, as it should, section 210 of the Penal Code to Part IV of the Constitution validation to which Part the substance and process or procedure of section 210 of the Penal Code was a limitation (section 44 of the Constitution), derogation (section 45 of the Constitution) or abridgment (section 46 of the Constitution).
- Section 46 (1) of the Constitution invalidated any legislation and action by the executive and Government agencies that abolished a Part IV right. It proscribed the legislature from making such law and prohibited the executive from taking action that abolished a right. The Constitution, save for non-derogable rights under sections 45 (1) and (2) and rights that could not be abridged or abolished under section 46 (1) of the Constitution, allowed limitation of rights following a certain process. Under section 44 (1) of the Constitution, the process began by asking whether the limitation of a Part IV right was by law. Rights could only be limited by law. Law, according to the General Interpretation Act, meant written law (the Constitution, Acts, subsidiary legislation) and common law, customary law and international law.
- International human right standards did not necessarily mean international human right law. Not all standards were laws but all laws were standards. Section 44 (1) of the Constitution referred to both, laws and standards. They were not one and the same thing. The legislature did not employ or deploy in vain the words or diction it chose to express its clear will or intention. The use of the word standards, when juxtaposed with the word law was condign and soigne. It presupposed that international human rights standards could be reverted to other than those standards actually set by law.
- Section 210 of the Penal Code, being a Part IV of the Constitution should have been invalidated under sections 44, 45 and 46 (2) and not section 5 of the Constitution. Or, at least, section 5 should have been invoked because the validity of a Part IV validity was established. Section 46 of the Constitution was a comprehensive scheme where any act of law, among other things, resulted in violation of the right enshrined in the Constitution.
- It was salutary that, for the High Court, in Kafantayeni the mandatory in the death penalty in section 210 of the Penal Code became unconstitutional because it violated the right to fair trial and the right against inhuman, degrading and cruel treatment or punishment. The unconstitutionality of section 210 of the Penal Code, therefore, hinged on or was itself a violation of the rights in Part IV of the Constitution. The invalidation of section 210 of the Penal Code was, therefore, based on section 46 (I) of the Constitution, rather section 5 of the Constitution.
- Section 46 (3) of the Constitution, therefore empowered a court to make any orders that were necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court found that a threat existed to such right of freedom the court had powers to prevent or contain such violation. The section, therefore had a present and future application. For the future, a court had to make an order that prevented future violation. For the present, a court had to make an order that promoted the enjoyment of those rights.
- Section 108 (2) of the Constitution altered aspects of stare decisis in some way. Section 108 (2) of the Constitution, read together with section 108 (I), empowered the High Court to review any law – legislative, precedent or customary law for constitutionality. The Supreme Court of Appeal’s decisions, in so long as they never considered constitutionality, were amenable to review by the High Court. When the High Court was exercising the section 108 (2) of the constitutional power, stare decisis did not apply. The High Court’s determination on the constitutionality of a decision of the Supreme Court of Appeal, however, could be appealed from. The High Court was bound, by stare decisis, by a decision of the Supreme Court of Appeal on the constitutionality of its reviewed decision.
- When the High Court exercised its powers under section 108 (2) of the Constitution, it was not sitting on appeal. The Supreme Court of Appeal therefore, in Yasini, when stating that prisoners could appeal, could not, in relation to those whose appeals the Supreme Court of Appeal determined, have been referring to an application to the High Court under section 108 (2) of the Constitution. Proceeding under section 108 (2) of the Constitution, therefore, could only have been by an application.
- Yasini should have stressed that the parties including those that had appealed to the Supreme Court of Appeal and had their matters determined or pending, had a right to apply to the High court for constitutionality of the death penalty. It was not, correct as the appellant submitted, therefore, that Kafantayeni never provided a procedure for those who wanted to impugn the death penalty. First, Kafantayeni did not have to set the procedure as it was in sections 108 (2) and 46 (2) of the Constitution. Secondly, Kafantayeni actually laid the procedure, an application under sections 46 (2) and 108 (2) of the Constitution.
- An appeal lay and the right to appeal only applied to those who had not yet appealed or never appealed. Yasini should have stressed that those who had not appealed and wanted to raise Kafantayeni as a ground for not imposing a death penalty would have to apply for extension of time. Perhaps, for those whose appeals pended in the Supreme Court of Appeal, the appeals could have been withdrawn to allow for applications under sections 46 (2) and 108 (2) of the Constitution. Yasini therefore, overlooked that, for those whose appeals were already decided by the Supreme Court of Appeal, no appeal could lie to another court from a decision of the Supreme Court before or after. They would, therefore, be without remedy, but for an application to challenge the Supreme Court of Appeal’s decision for constitutionality. That right could not be removed by the Supreme Court of Appeal.
- The Supreme Court of Appeal, rather than leave it to prisoners to apply wanted to have all prisoners under the death penalty to be brought to court. It was unclear, however, why it was the duty of the Director of Public Prosecutions to bring the prisoners to what the court renamed as a sentencing rehearing. After conviction, without an appeal, the Director of Public Prosecution was functus officio. The matter was properly commenced against the Attorney General. It was never the duty of the Director of Public Prosecution but other Government agencies to execute the sentence and, therefore, by extension, the sentencing rehearing order.
- If the prisoner was not sentenced to the death penalty under the mandatory provision of section 210 of the Penal Code, there would be no rehearing. That would be the case of many cases decided in cognizance of Kafantayeni and Yasini and the amendment to section 210 of the Penal Code. First, the death penalty, passed based on the defunct section 210 of the Penal Code, was tainted by the unconstitutionality discussed. Secondly, as happened in the case, there was no evidence proffered in mitigation. Thirdly, the Supreme Court of Appeal never received any evidence in mitigation. The High Court was presumptuous in suggesting that counsel for the appellant provided such evidence or that such evidence could be mesmerized from the judgment.
- Evidence received in mitigation had to, as it had to be, have included any post-conviction evidence, at least for those who were applying after being sentenced to death. The contamination of the mandatory sentence could not be atoned by the Supreme Court of Appeal conducting a re-sentencing hearing itself. Ordering that prisoners should be brought in the High Court for resentencing, the Supreme Court of Appeal divested itself of the power to do so. Neither could that be inferred from just that the Supreme Court of Appeal said resentencing hearing should be in the High Court. It was a matter of principle. If the question was, as would be in all those cases, that the death penalty and mandatory death penalty in section 210 of the Penal Code was unconstitutional, the first port of call, should, as it had to be under sections 108 (1) and 108 (2) of the Constitution.
- To the extent that the remedy sought, a resentencing hearing, arose from the constitutionality of a law, the Supreme Court of Appeal could not be the first to deal with it. Were constitutionality of a hearing, for some reason, to arise in the Supreme Court of Appeal, the Supreme Court of Appeal would all the same have to proffer an adequate remedy, a rehearing. That rehearing could only be in the High Court. The nature of a rehearing was that it could not be subjected to stare decisis or res judicata. All issues were open for reconsideration without the issue estoppel arising. Commencing proceedings under section 108 (2) of the Constitution gave the applicant a chance to exercise the right to appeal under section 42 (2) (t) (viii) of the Constitution from a decision of a court of first instance to a review or appeal court.
- The Supreme Court of Appeal under section 23 of the Legal Aid Act recommended to the Director of the Legal Aid Bureau that legal aid be granted to all who were ordered for a sentence re-hearing. Ultimately, the right in section 44 (2) of the Constitution inured to them. Rather than wait for the Attorney General or the Director of Public Prosecutions take up their cases, those affected, had to, if they wanted to, in their own right, make an application to the High Court and challenge the constitutionality of the death penalty and be afforded a sentence re-hearing.
- The legal aid had to include an urgent and immediate application to be released on bail with or without a bond. The death penalty was unconstitutional. Sections 25 (a) and section 26 in prescribing death as one of the sentences and sections 38 (1) (for treason), 63 (I) (for piracy), 133 (for rape), 210 (for murder), 217A (2) (a) (for genocide) and 309 (I) and (2) (for housebreaking and burglary, respectively) of the Penal Code had to be read as meaning the maximum prison sentence – life imprisonment. If life imprisonment became the maximum sentence, where it was not mandatory, by fiction, it could not be imposed, reserved as it were for the worst instance of a crime. Courts were, therefore, likely, to pass a prison term of years. Those who had served long periods of their life or long sentences were likely to get shorter terms or immediate release.
- The circumstances would be so variegated that a blanket release on bail was improper. Each case, therefore, had to be individualized. The appellant’s case was well known. On balance, on a resentencing hearing, there would be a reduction or release for the reasons advanced. All post conviction evidence, victim’s evidence etc., was in situ.
Per EB Twea, SCJJA (Dissenting)
- Convicts dissatisfied with their conviction and sentence had the option to appeal the conviction and sentence. That was what happened in the first appeal, in the instant case, and in the case of Yasini. In both cases the appeals against conviction and sentence were dismissed. The appeals against sentence were dismissed because the appellants did not offer any arguments in mitigation of the sentence. They just cited the decision in Kafantayeni and or Yasini and sought a sentence re hearing. Both did not succeed. It was open to the appellants to offer submissions or apply to call evidence, in mitigation of sentence. None of that was done. In both cases therefore, the Kafantayeni and others scenario did not apply. Notwithstanding that, the Supreme Court of Appeal had powers to remit a case to the High Court for further hearing. Under section 16 (d) of the Supreme Court of Appeal Act, there had be proper arguments and justification for such an order.
- A convict’s right to appeal was alternative to a right to re hearing in the sense that an appeal to the Supreme Court of Appeal was by way of re-hearing. The appellant could call evidence in mitigation of sentence. That right could be subject to restrictions for failure to call witnesses at the trial stage. However, after the decision in Kafantayeni and others, the law changed. The court was duty bound to take that into consideration. The appellant did not exercise that option.
- The Supreme Court of Appeal did not act per incuriam. The death penalty was not unconstitutional. The directive to the OPP, in the case of Yasin to call up cases of convicts who were sentenced to death under the mandatory provision was to ensure that convicts, who qualified for a sentence re-hearing, should be heard. That was deemed equitable than to place the onus on such convicts to apply for sentence rehearing individually.
- The presumption at law was that a litigant was properly advised, by counsel, of the legal choices available and made an informed decision on how to conduct the case. The conduct of the case was therefore directed by the litigant on advise of his or her counsel. The court could not be held responsible for the action taken on the advise of counsel.
- Evidence in mitigation was anticipated under the statute. The liaison between the Judiciary, the office of the President, the Secretary for Justice and the Committee on the Prerogative of Mercy was testimony that it was the intention of the law that the execution of the death penalty would only be had where all stakeholders were satisfied that there were no exculpating factors. The failure to plead in mitigation of sentence, in murder cases, did not have statutory or legal backing.
- In the instant case the President exercised his prerogative of mercy within the confines of his mandate: to commute a lawful sentence of death to life imprisonment. The courts had no inherent power to review the Presidential discretion. After the President had exercised the prerogative of mercy on April 9, 2004, it was not open to the Supreme Court of Appeal or the High Court, in the absence of any valid cause, to re-open the case. The result of re-opening the case, was that the Supreme Court of Appeal’s judgment of July 1, 2010 confirmed the death sentence when, in fact, the appellant’s sentence had been commuted to imprisonment for life by the President.
- After a decision by the Supreme Court of Appeal, the appellant could not re-open the case. The decision was final as found by the High Court. In the present case, the final position therefore, was that the President, having exercised his prerogative of mercy, within the law, it was not open to the appellant or any court to re-open it.
Appeal allowed; each party to bear its own costs
- A rehearing was ordered in the High Court and the Registrar of the High Court was to set a sentence rehearing within 21 days of the order. The rest was to apply for bail within the next 21 days.
- The Director of Public Prosecutions and the Attorney General would continue to act according to the directions in Yasini v Republic. During or before a sentence rehearing, the Director of Public Prosecutions and the Attorney General could apply for bail if the prisoners were willing to make bail.
- The High Court could act suo motu and consider granting bail in appropriate circumstances.
Relevance to Kenya’s legal system
Under international law, article 2 of the Universal Declaration of Human Rights, 1948, and articles 2 and 26 of the International Covenant on Civil and Political Rights,1966, provide that everyone is entitled to the protection of the right to life without distinction or discrimination of any kind, and all persons shall be guaranteed equal and effective access to remedies for the violation of this right. Article 4, paragraph 2, of the International Covenant on Civil and Political Rights provides that exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any derogation from the right to life and security of the person.
The Constitution of Kenya, 2010 provides for its supremacy in article 2 and goes ahead to state that any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
Article 23 (1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Article 24 provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors…
Article 26 goes on to state that every person has the right to life and that a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. Lastly article 165 (3) (b) provides that the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
The Penal Code of Kenya, No. 81 of 1948 provides in section 203 as read with section 204 that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder and that any person convicted of murder shall be sentenced to death.
Kenya has not abolished the death penalty although it has ruled that the mandatory nature of the death penalty is unconstitutional.
In Godfrey Ngotho Mutiso v Republic  eKLR, the Court of appeal held that section 204 of the Penal Code which provided for a mandatory death sentence was antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. While the Constitution itself recognized the death penalty as being lawful, it did not say anywhere that when a conviction for murder was recorded, only the death sentence would be imposed. Section 204 would, to the extent that it provided that the death penalty was the only sentence in respect of the crime of murder be inconsistent with the letter and spirit of the Constitution, which made no such mandatory provision.
In Jackson Maina Wangui & another v Republic  eKLR, the High Court held that should the people find that the death penalty was unacceptable, the responsibility to abolish it lay with the people of Kenya, through their elected representatives. It was imperative, and as soon as possible, that the ambivalence that the society demonstrated towards the death penalty was resolved one way or the other.
This was also seen in the landmark case of Francis Karioko Muruatetu & another v Republic  eKLR where the petitioners’ case was that the mandatory nature of the death penalty under section 204 of the Penal Code jettisoned the discretion of the trial forcing it to hand down a sentence pre-determined by the Legislature thus fouling the doctrine of separation of powers and also violated the right to fair trial under article 50 of the Constitution. The Supreme Court held that what section 204 of the Penal Code was essentially saying to a convict was that he or she could not be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she was heard, it was only for the purposes of the record as at that time of mitigation because the Court had to impose the death sentence nonetheless, as illustrated by various Court of Appeal decisions. The Supreme Court could not decipher the possible rationale for that provision. A person facing the death sentence most deserved to be heard in mitigation because of the finality of the sentence.
Further it found that any court dealing with the offence of murder was allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence.
To do otherwise would render a trial, with the resulting sentence under section 204 of the Penal Code, unfair thereby conflicting with articles 25 (c), 28, 48 and 50 (1) and (2) (q) of the Constitution. The mandatory nature of the death sentence provided for under section 204 of the Penal Code long predated any international agreements for the protection of human rights. It was a colonial relic that had no place in Kenya today. Whereas it was the duty of Parliament to make laws, it was the duty of the Court to evaluate, without fear or favour, whether the laws passed by Parliament contravened the Constitution.
The Supreme Court further gave orders that:
(a)The instant matter was remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with the instant judgment.
(b)The Attorney General, the Director of Public Prosecutions and other relevant agencies would prepare a detailed professional review in the context of the instant judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the Petitioners. The Attorney General was granted twelve (12) months from the date of the Judgment to give a progress report to the Court on the same.
(c)The judgment was to be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment.
The justice system globally is thus moving towards abolition of the death penalty as it is a derogation of the right to life. Judicial systems are looking towards international human rights laws and standards such as which advocate and provide for the same. Regionally, Malawi’s highest court has ruled on the same and the jurisprudential judgment is of great importance to Kenya in development of its human rights law.