Malawi starts ‘Kafantayeni’ justice: Prisoners on death sentence to be reheard

Malawi High Court will from February 11 start rehearing cases of prisoners sentenced to the mandatory death sentence, with the first hearing expected to held  in Zomba.

In 2007 the High Court of Malawi abolished the mandatory death penalty. In what become known as the Kafanteyeni ruling the mandatory death penalty was deemed by the bench as unconstitutional as it amounts to an arbitrary deprivation of life, denies an accused the right to a fair trial and the right to be free from inhuman and degrading treatment.

Malawi Human Rights Commission (MHRC) is running a ‘Kafantayeni Project’  which aims at giving a second chance to 170 prisoners on mandatory death sentence to be reheard.

Resentencing hearings give prisoners the opportunity to present mitigating evidence before the court so that a judge may be persuaded  to hand down a sentence other than death.

The project is also being implemented by Director of Public Prosecution (DPP), Legal Aid Bureau and Paralegal Advisory Service International  (PASI).

Briefing the press in Lilongwe on Monday, DPP representative Dziko Ndianthu Malunda said they will start with less complex cases.

“These are the cases which had it been that there was no mandatory death  penalty the court could have given the convicts lesser sentences,” he said.

However, he said out of the 170 prisoners, there are only traced files of 82 convicts.

“This means that we will have to reconstruct files to ensure that no one  is denied justice simply because of the missing file,” he said.

The Tilitonse funded project is also being implemented by Center for Human Rights Education, Advice and Assistance, Chancellor College Faculty of Law, Cornell Law School and Malawi Prison Service.

MHRC Executive Secretary Grace Malera said the cases will be heard on mitigation and aggravating factors.

The abolition of the mandatory death penalty in Kafantayeni and the fact that Malawi has not actually carried out an execution since 1992 puts the country in good stead to abolish the death penalty. Countries like Malawi that have made the transition to democracy increasingly see abolition of the death penalty as a necessary step to signal their commitment to human rights.