Malawi’s judiciary has said it will soon sit to re-hear cases of prisoners who were previously sentenced to mandatory death penalty.
The re-hearing will only deal with the question of the sentence, to according to Joseph Chigona, Registrar of the High Court of Malawi and Malawi Supreme Court of Appeal.
Re-hearing of the cases on sentence is also aimed at complying with the judgment of the High Court sitting as Constitutional Court in Kafantayeni and others v Attorney General–constitutional case No.12 of 2005 (Kafantayeni Case) and that of the Malawi Supreme Court of Appeal in Mclemonce Yasin v The Republic MSCA Criminal Appeal No.25 of 2005 (Mclemonce case).
Section 210 of the Penal Code (Cap.7:01 of the laws of Malawi), before being amended in 2011, provided “any person convicted of murder shall be sentenced to death”.
The Section didn’t not allow the High Court to exercise discretion (in sentencing a murder suspect) to take into account mitigating and aggravating factors, to consider peculiar circumstances of the case, or to decide whether to impose a lower sentence.
In effect, according to the Judiciary, the Section imposed a mandatory death penalty on murder convicts.
As such, the constitutionality of the imposition of the mandatory death sentence was challenged in the Kafantayeni Case.
On 27 April 2007, the High court held that the imposition of the mandatory death sentence was a violation of the right to a fair trial provided for under Section 42 of the Constitution and was unconstitutional.
“For avoidance of doubt, the High Court did not abolish the death penalty but rather held that courts should be able to tale into account all circumstances of the case and decide whether to impose the death penalty or a lower sentence,” said Chigona.
The Malawi Supreme Court of Appeal in the Mclemonce Case held that all prisoners who had been sentenced to the mandatory death penalty were entitled to be re-heard on sentence, for the court to take into account mitigating and aggravating factors of the case and decide the appropriate sentence to impose.
The Court further observed that it was the duty of the Director of Public Prosecutions (DPP) to bring before the High Court for sentence re-hearing all prisoners sentenced to death under the mandatory provisions of Section 210 of the Penal Code.
“The Judiciary wishes to inform the public that it is ready to start re-hearing the cases,” said Chigona.
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