Thirty one United Nations (UN) member countries have recommended that Malawi abolishes the death penalty, which has remained a sticky issue for decades.
The recommendation was made following a review of Malawi’s human rights record by the United Nations Human Rights Council.
But Ministry of Justice and Constitutional Affairs spokesperson Frank Namangale said last week government is consulting to determine whether the death penalty should be abolished or not.
“While the death penalty remains in Malawi’s statutes, a de-facto moratorium issued years back continues to be observed,” he said.
Namangale, however, said it should be noted that all prisoners on death row were re-sentenced with varying prison sentences and that only one of the re-sentenced prisoners remains in custody serving a death sentence.
UN member States reviewed Malawi’s human rights record through a Universal Periodic Review, which gives an opportunity for improvements to be made through subsequent recommendations.
Through the peer review, Malawi’s human rights record has improved except for the country’s failure to abolish the death penalty, which successive governments have failed to resolve since 1994.
This is despite numerous affirmations that the country would do away with capital punishment.
So far, 28 out of 55 African Union (AU) member States have abolished the death penalty in law while 14 maintain a moratorium on executions.
“For Malawi, one issue stood out: despite several attempts and commitments, the country has yet to abolish the death penalty,” reads information published on Parliamentarians for Global Action website—a global network of legislators advocating for environmental and social principles.
“While the country hasn’t executed anyone in three decades, maintaining what’s called a de facto moratorium, the death penalty remains on the books. The Universal Periodic Review provided an opportunity to definitively put an end to this practice.”
If Malawi is to abolish the death penalty, it will require amendment of certain pieces of legislation, including the Criminal Procedure and Evidence Code (Cap. 8:01 of the Laws of Malawi) and Penal Code (Cap. 7:01) of the Laws of Malawi).
During the Universal Periodic Review, the 31 UN member States that recommended for Malawi to abolish the death penalty also suggested that the country should ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights.
Malawi Human Rights Commission commissioner Grace Malera said while the Constitution enshrines one of the most progressive Bills of Rights, including the right to life, the death penalty persists as a holdover from the colonial era, embedded in the Penal Code and Criminal Procedure and Evidence Code.
Malera, who is also the Ombudsman, said abolishing the death penalty is more than a legal matter—stressing that it is a political and human rights issue requiring inclusive dialogue, engagement and leadership.
Centre for Human Rights Education Advice and Assistance executive director Victor Mhango said continued retention of the death penalty undermines Malawi’s positive steps in justice sector reform.
A December 2018 published paper authored by Esther Gumbo The Death Penalty in Malawi: an Assessment against Regional and International Human Rights Standards argues that while there are some restrictions on use of the death penalty in Malawi, the law and practice has never been fully aligned with regional and international standards.
