Activists commemorate anti-Death Penalty Day: Tonse urged to abolish the penalty

Youth and Society (YAS) – one of the local human rights watchdogs – has urged the Tonse Alliance-led government to seriously consider repealing all laws giving effect to the death penalty in line with the Second Optional Protocol to the International Covenant on Civil and Political Rights of the United Nations (UN).

YAS has made the appeal as local human rights activists join the rest of the world in commemorating a global day of activism against the death penalty, which falls on10 October annually.

Kajoloweka stressing a point during the presser in Lilongwe

The organization’s executive director, Charles Kajoloweka, in a statement issued on Sunday morning, said YAS opposes the death penalty in all cases without exception, as a violation of the right to life and

Kajoloweka says, while Malawi has not ratified the Second Optional Protocol, the practice in Malawi reflects a commitment to abolish the death penalty.

“In this light, we acknowledge that since 1994, Malawi has had a de facto moratorium on the execution of the death penalty. Since the establishment of democracy, no person sentenced to death has been executed.

Malawi has made clear its commitment to this moratorium in its interactions with the African Commission on Human and Peoples’ Rights and United Nations Human Rights bodies, for instance in its engagement with the United Nations Human Rights Council’s Universal Periodic Review (UPR), Malawi signalled its intent to continue the moratorium,” reads the statement in part.

In its second UPR cycle in 2015, Malawi accepted three crucial recommendations on the death penalty: (1) to continue the moratorium on death penalty; (2) to continue its efforts to review the cases of persons sentenced to death, to commute all death sentences, and put in place a moratorium with a view to the death penalty’s future abolition; and (3) to review and provide appropriate re-sentencing decisions for those sentenced under the now-abolished mandatory death penalty.

Kajoloweka recalls that most significantly, in December 2016, Malawi voted in favour of the UN General Assembly Resolution “Moratorium on the Use of the Death Penalty.”

He says this was the first time Malawi had voted in favour of this Resolution. The resolution states that the signing nations are “convinced that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights.”

Further, the resolution calls upon all states “to ensure that those facing the death penalty can exercise their right to apply for pardon or commutation.”

Kajoloweka states that by voting in favour of this resolution, Malawi had made clear its commitment to refrain from carrying out executions.

“Remarkably, in respect to the Kafantayeni Judgment, Malawi has made a tremendous progress in re-sentencing prisoners who were on death-row.

“Despite progressive steps Malawi has taken towards abolition of death penalty, it is of grave concern that it still retains death penalty in its supreme law and statutes,” he argues.

Kajoloweka says YAS holds that it is not safe for the country to continue relying on a moratorium and the goodwill of those in the office of the President on death penalty as the case is now.

He says it is worrisome that Malawian Courts continue to mete out death sentences in some capital offence cases.

He cited the sentencing to death of three people, namely Douglas Mwale, Sophie Jere and Fontino Folosani, who were found guilty of murder in Mchinji.

Kajoloweka further argues that there is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment, as evidence shows that countries that have death penalty laws do not have lower murder rates than countries without such laws.

To reduce murder rates, the YAS executive director advises, the government must invest heavily in security to protect citizens from criminals, and not by executing people.

“Death penalty laws falsely convince the public that government has taken effective measures to combat crime. In reality, such laws do nothing to protect citizens or our communities from the acts of dangerous criminals.

“In light of the foregoing, we commend the Government of Malawi for being progressive in practice and commitments and call for the undertaking of the following steps: To abolish the death penalty through amending section 16 of the Constitution and repealing all laws giving effect to the death penalty in Malawi; to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights and to commute the sentences of the prisoners remaining on death row,” concludes Kajoloweka.

Recently, the UN Human Rights Spokesperson Marta Hurtado expressed concern with the decision of the Malawi Supreme Court of Appeal to validate death penalty, overturning the verdict Justice Dunstan Mwaungulu had earlier made on the matter.

In his determination, Mwaungulu outlawed death penalty.

Hurtado said the perfected judgment of the Malawi Supreme Court of Appeal raised serious human rights issues in Malawi.

She argued that the death penalty is, by its nature, inconsistent with Malawi’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,” reads the statement in part.

Hurtado added that Malawi has had a moratorium on capital punishment since 1994 and that 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.

She said, 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,” she said.

Hurtado emphasized that 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 percent of States have now abolished the death penalty in law or in practice.

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