With prospects the death penalty may finally be abolished, human rights defenders say the situation presents an opportunity to build a fair judicial system.
Legislators are expected to deliberate on whether or not to abolish the death penalty through a Private Members Bill to be tabled by Democratic Progressive Party legislator Yusuf Nthenda.
If the Bill sails through, particular pieces of legislation will be amended to effectively push out the death penalty, which has remained a contentious issue in the post-multiparty era.
Among the legislation expected to be amended are the Criminal Procedure and the Evidence Code (Cap. 8:01 of the Laws of Malawi) and Penal Code (Cap. 7:01 of the Laws of Malawi).
Sections 323 and 324 of the Criminal Procedure and Evidence Code outline sentencing and execution when the death penalty is imposed.
This also includes informing an accused person’s right to appeal.
The Penal Code on the other hand outlines Malawi’s criminal laws, including provisions for the various offences and their corresponding punishments, including the death penalty.
Abolition of the death penalty has been a sticky issue that successive governments have failed to resolve since 1994.
No President after 1994 has signed death warrants of convicts on death row.
As of March 2025, 26 African countries had abolished the death penalty for all crimes while two countries abolished it for ordinary crimes only.
A further 12 countries still maintain the death penalty and executions while 14 others have not effected executions in the preceding decade.
Centre for Human Rights Education Advice and Assistance executive director Victor Chagunyuka Mhango in an interview last week said the organisation has thrown its weight behind the Private Members Bill to abolish the death penalty in Malawi.
He said it is inhumane, outdated and disproportionately affects poor individuals who lack adequate legal representation.
Mhango said: “Malawi has already taken significant steps towards abolition as demonstrated by the landmark Kafantayeni case, which ended the mandatory death sentence for murder convictions and the 2022 decision by President Lazarus Chakwera to commute all existing death sentences.”
In December 2022, Chakwera commuted the death sentences of 26 convicts on death row to life imprisonment.
The Kafantayeni case dates back to 2007 when the High Court of Malawi sitting as a Constitutional Court outlawed mandatory death sentence leading to resentencing of death row inmates.
Other inmates were released based on the number of years served while others had their sentences commuted to life imprisonment.
Mhango said abolishing the death penalty aligns with Malawi’s constitutional commitment to upholding human rights, in particular, the right to life.
He said it also reflects a growing trend across Africa with countries such as Zambia and Zimbabwe recently removing capital punishment from their laws.
Mhango urged Parliament to pass this Bill and take Malawi one step closer to a more just and progressive legal system.
In 2018, former president Peter Mutharika called for a national dialogue on whether Malawi should implement the death penalty on murder convicts.
The death sentence is imposed on murder and treason convicts.
A paper authored by Esther Gumbo in 2018 says while there are some restrictions on the death penalty in Malawi, the law and practice has never been fully aligned with regional and international standards.
Titled The Death Penalty in Malawi: An Assessment Against Regional and International Human Rights Standards, the paper argues that relevance of international law to Malawi cannot be gainsaid on the premise that it serves as a general guide and can be used in interpreting the constitution.
In April 2022, a report from Parliament’s Legal Affairs Committee recommended abolishment of the death penalty on the basis that it serves no purpose.
The report came a year after a controversial Malawi Supreme Court of Appeal ruling by retired Justice of Appeal Dunstan Mwaungulu, on behalf of his colleagues, in the case of Charles Khoviwa, that imposition of the death penalty was unconstitutional and contrary to the right of life as guaranteed in Malawi’s Constitution.
He ordered the immediate resentencing of Khoviwa and others in his position who had been subjected to the mandatory death penalty, but were denied hearings during the original resentencing phase in 2017.
