Malawi High Court scraps automatic death penalty

The High Court of Malawi has declared the death sentences on all prisoners on death row unconstitutional in a landmark judgment that spells the end of the automatic death penalty.

In a unanimous judgment on 27 April, the High Court ruled that the automatic nature of the death penalty in Malawi for murder and other offences violated the right to life and amounted to inhuman punishment as it did not provide the individuals concerned with an opportunity to mitigate their death sentences.

As a result several dozen prisoners currently on death row, including the applicant in the High Court case Francis Kafantayeni, will be resentenced with the death penalty as a possible, but not a certain, option.

The High Court victory results from a team effort between Malawian and UK lawyers. The Malawian lawyers included Redson Kapindu from the Malawi Human Rights Commission and independent lawyers Ralph Kasambara, John-Gift Mwakhwawa and Noel Chalamanda.

They were assisted by a team of UK lawyers comprising Saul Lehrfreund and Parvais Jabbar, executive directors of the Death Penalty Project, which is run in association with London firm Simons Muirhead & Burton, and Keir Starmer QC and Joseph Middleton of London's Doughty Street Chambers.

Lehrfreund said: "The cases of at least 30 prisoners on death row will now have to be reviewed. The implications for future murder trials will be the introduction of a completely new set of procedures restricting the imposition of the death penalty in the first instance."

The four UK-based lawyers are part of a larger team that has been involved in successfully challenging mandatory death penalties in nine Caribbean countries since 2000 and in Uganda in a 2005 case that saved 417 prisoners from execution.

Jabbar said: "The jurisprudence in Uganda and other regions has now been accepted in Malawi and this reflects the notion that law should move progressively towards the greater protection of human rights."