Comment By UN Human Rights Spokesperson Marta Hurtado on Malawi’s Death Penalty Reinstatement

(Judicial Quest News Network)

GENEVA (26 August 2021) – “We are very concerned with the implications of the Malawi Supreme Court of Appeal’s decision to recharacterize its April judgement, which had been widely understood to abolish the death penalty.

The recent decision, coming four months after public delivery of a final judgment under Malawi law, raises serious concerns on the due administration of justice, and has the effect of now allowing judges to resume imposing the death penalty.

The death penalty is, by its nature, inconsistent with a State’s duty to protect the fundamental right to life, and there is no evidence globally that it has a deterrent effect on serious crimes. The risk that an innocent person may be condemned to death, a concern in all States where the criminal punishment is still in place, is heightened in Malawi, where the law does not criminalize confessions extracted under duress, including through torture and ill-treatment, nor preclude their admission as evidence in court.

Malawi has had a moratorium on capital punishment since 1994. Even if the moratorium is now continued, the renewed uncertainty facing people who have been sentenced to death could lead to intense suffering for both themselves and their families. In particular, the prisoners on death row who believed — following the Court of Appeal’s earlier April judgment – they were free from the risk of execution, now find themselves again subject to it.

We welcome the statement of the President of Malawi, on 3 May 2021, stating that the earlier ruling abolishing the death penalty would be respected. The Court’s recent clarification does not prevent the Government and the Parliament of Malawi from taking steps to formally abolish the death penalty in the country through legislation, and we would encourage these steps to be taken to definitively resolve this important issue for the country’s future and the fundamental rights of its people.

In doing so, Malawi would expand its protection of the right to life, guaranteed under international law, and would re-join the growing trend towards abolition across the world, including Africa, where 80% of States have now abolished the death penalty in law or in practice.”