Recent press reporting suggested that a Malawian had been executed in Indonesia. The case in question now seems to have involved a person of a different nationality who had somehow obtained a Malawian passport. But what if this person had been Malawian? What would the Malawian family, government and society response have been? Perhaps they would have made representations to the authorities to prevent the execution. If so, Malawi would be on stronger ground if it had itself abolished the death penalty.
2014 marked the 50th anniversary of the last executions to take place in the UK when two men were hanged for the murder of the same man. Two months later a new Government was elected and in 1965, Parliament suspended the death penalty, abolishing it in 1969.
This was not an easy process. At the time it was abolished in the UK, the death penalty enjoyed widespread public support. Parliament decided to act contrary to the popular view, in response to a number of high profile cases where innocent people were executed. The UK Parliament took the view that sooner or later innocent people will be killed because of mistakes or flaws in the justice system. Ultimately, it was the responsibility of Government to take the lead in protecting its citizens.
Last year also marked 50 years of Malawi’s independence which stimulated calls for reform and transformation. This included calls for constitutional reform. If reform is to be delivered, perhaps it can finally include complete abolition of the death penalty.
No execution has taken place in Malawi since 1992, since when there has been a de facto moratorium on its application. Following a 2007 court decision, an amendment in 2011 repealed the Penal Code’s previous mandatory requirement that the death penalty be imposed for murder and treason (a point to note in light of treason charges previously brought against the current President and others). The UK welcomes the moratorium and urges the authorities to speed up the re-sentencing process of the 192 prisoners given mandatory death sentences prior to 2007.
But we encourage Malawi to go further. We believe the death penalty has no place in the modern world as the increasing trend of countries abolishing it demonstrates. About 160 countries have abolished the death penalty in law or in practice: of those, 98 have abolished it altogether. And this is a global trend: most of Latin America, African states such as South Africa, Rwanda, Benin and Burundi, and Asian countries such as Nepal, Mongolia and Cambodia, have abolished the death penalty.
The EU is similarly committed to abolition: no country can join the EU if it retains capital punishment and no EU country can extradite a person to another country where they may face capital punishment.
Like the UK, these countries believe that the death penalty undermines human dignity; there is no conclusive evidence of its deterrent value; and any miscarriage of justice leading to its imposition is irreversible and irreparable.
It is not possible to avoid errors from any penal system. For example, around 150 people have now been exonerated from death row in the United States, who would otherwise have been executed. Last year, the world’s longest serving death row prisoner was released from custody in Japan after 45 years following a court ruling that his original conviction was unsafe.
We believe also that capital punishment is incompatible with human rights, violating the right to life, the most basic of all human rights; the right not to be subjected to torture and other cruel, inhumane of degrading treatment or punishment; and undermining human dignity inherent to every human being.
As to its deterrent effect, there is no convincing evidence of this. This should be clear when you consider that a number of the states retaining the death penalty consistently record among the highest homicide rates in the world. Examples include Belize, Jamaica and Trinidad. Louisiana, which retains the death penalty, has led the US murder rate statistics for over 20 years.
It is for the Government of Malawi to determine whether it wishes to join this growing group of countries committed to abolishing the death penalty. The Law Commission in its 2007 review of the Constitution stated that “the populace of Malawi was not ready to have the death sentence abolished as this would be taken to mean that murder was sanctioned by the law. The Commission arrived at this conclusion after considering the overwhelming response from rural areas against the abolition of the death sentence”. But that was then. This is now.
We acknowledge that many people – including in the UK – support capital punishment in principle. The UK’s own path to abolition was a long one. Our own experience suggests that public support tends to fall as the public becomes better informed about the issue – in particular about the lack of evidence to prove that the death penalty has any deterrent effect, and the possibility of miscarriages of justice.
And there are many areas on which the public may have a different view from government – not many people, for example, would instinctively wish to pay taxes, while many would want to fix the exchange rate and fuel prices. But that does not mean it is right. Governments do many things in the best interests of the country that are not necessarily popular. It is for governments to lead, not just serve, their societies.
- The author is British High Commissioner to Malawi