DEATH PENALTY CASES IN MALAWI: A COUNTRY REPORT

Transcription

1 DEATH PENALTY CASES IN MALAWI: A COUNTRY REPORT 1.0 INTRODUCTION Malawi became an independent State on July 6 th, 1964 after being under the British rule for over seventy (70) years. During the period of colonization, she adopted or rather the English legal system was imposed upon her. One of the legacies of the English domination is this English legal system. Between 1964 and 1994, Malawi had a dual judicial system. 1 There was a traditional court system and the received courts system. In the former judicial system, the courts were manned by laymen and traditional leaders (i.e. chiefs) and were set up to deal with minor criminal cases and largely customary disputes. Later on, to satisfy the demands of the executive branch, these courts dramatically assumed jurisdiction over criminal cases including treason, 2 homicide, robbery and burglary. These courts became notorious for dealing away with political dissidents. 3 The received law court system was developed along the English model of Magistrate Courts, High Court and Supreme Court of Appeal. Before attaining Republican status in 1966, appeals would lie from the Court of Appeal to the Privy Council in England. These courts follow the English adversarial system of justice and apply common law principles including jury trial for all criminal cases tried by the High Court. On May 18 th, 1994 when Malawi adopted the multi-party Republican Constitution, the dual judicial system was integrated into one. There is now only the received courts system. 4 The traditional or local courts may be established as subordinate courts; and would fall under the supervision of the High Court. 5 Such courts jurisdiction would 1 For a detailed account see I.N.K. Nyasulu, Towards Single Hierarchy Judicial System, proposal on behalf of the Malawi Magistrates and Judges Association 1993 (unpublished) 2 For instance, see the case of the Republic -vs- Muwalo Ndumayo & Gwede : Criminal Case No.1 of 1997 RTC at Blantyre (unreported). 3 See Amnesty International, When the State Kills.The Death Penalty v. Human Rights (1989) at p See S.103 of the Constitution 5 See S.110 (3) of the Constitution 1

2 be limited to exclusively civil cases at customary law and such minor common law and statutory offences as might be prescribed by an Act of Parliament. 6 Today, the court system is set out as below:- Supreme Court of Appeal High Court Magistrate Courts Traditional or Local Courts 2.0 CRIMINAL JUSTICE SYSTEM AND DEATH PENALTY JURISDICTION OF THE COURTS IN DEATH PENALTY CASES CRIMES ATTRACTING DEATH PENALTY Under Malawi Law, death penalty is mandatory for prisoners convicted of murder 7 or treason. 8 Anyone convicted of rape 9, aggravated robbery 10 and house breaking / burglary 11 may suffer a maximum penalty of death or life imprisonment. 6 See s.110(3) of the Constitution 7 See S.209 and 210 of the Penal Code 8 See S.38 of the Penal Code 9 See S.133 of the Penal Code 10 See S.301 of the Penal Code 11 See S.309 of the Penal Code 2

3 2.1.2 COURTS THAT MAY TRY AND IMPOSE DEATH PENALTY Cases of treason and murder are tried only in the High Court. 12 Magistrate Courts have jurisdiction to hear cases of rape, aggravated robbery, house breaking / burglary. 13 A Magistrate Court, however, may not impose any death sentence. 14 Hence, if after hearing the case the court is of the opinion that the proper penalty is death, it is obliged to refer the case to the High Court for sentencing. In practical terms, it is extremely unlikely for any Magistrate Court to entertain the idea of calling for death penalty for such offences. Actually, the only known case where a death penalty was imposed for an offence other than murder and treason by a Court other than a High Court is the case of Banda -vs- Republic 15. The Appellant, in this case, was convicted of aggravated robbery by a Regional Traditional Court. The facts did, however, establish the offence of murder. Realising the enormity and finality of the sentence, one of the built-in safe guard here is that all accused persons appearing in the High Court are legally represented. There is a constitutional duty for the State to provide legal representation to the indigent. 16 If the accused cannot afford legal representation, the State does provide one from the Department of Legal Aid, from the Malawi Law Society Legal Aid Scheme or from any Human Rights NGOs such as Civil Liberties Committee TERRITORIAL JURISDICTION Section 66 of the CP & EC gives general authority to every court to try any person who is in Malawi and is charged with an offence committed 12 See S.13 (1) of the Criminal Procedure and Evidence Code ( hereafter CP & EC ) 13 See S.13 (2) of the CP & EC 14 See S.12 of the Penal Code 15 See Cr. App. Case No.71 of 1978 (N.T.A.C.) (unreported) 16 See s.42 of the Constitution. 3

4 within Malawi or partly within and partly beyond Malawi, or which, according to law, may be dealt with by it. Treason and murder even if committed outside Malawi are nevertheless triable by the courts in Malawi. 17 Malawi territory is extended further by the fiction that a Malawian airplane or lake steamer is part of the territory of Malawi, and jurisdiction therefore exits though the plane or boat is outside Malawi airspace or lake waters. 3.0 IMPOSITION OF DEATH SENTENCE BY A MILITARY COURT As already stated, in Malawi it is only the High court that can impose death sentence. The only exception applies in the case of military personnel. A Court martial may also impose death sentence. 18 In the case of the Court martial imposing death sentence there is an automatic right of appeal to court of appeal. 19 In any event a sentence of death cannot be carried out unless it has been approved by the President 20. In line with the right to fair trial a court-martial generally sits in open Court and in the presence of the accused. 21 The accused is entitled to legal representation and any finding by a court martial is required to be announced in open Court 22 and any finding of guilty has to be announced as being subject to confirmation by Army Council. 23 The Army Council also serves as a supervisory body over the Court martial business. In relation to its supervisory powers, the Army Council only exercises those powers upon the advice of the Attorney General See S.209 and 38 (3) of the Penal Code 18 See S.70 of the Army Act 19 See S.132 of the Army Act. 20 See s.102 of the Army Act 21 See S. 89 of the army Act. 22 See S. 92 (1) of army Act. 23 See S. 92(2) of the Army Act. 24 See S.229 of the Army Act. 4

5 4.0 DEATH SENTENCE AND ITS EXECUTION The following are relevant provisions of the CP & EC relating to carrying out death sentence: Section 323 When any person is sentenced to death, the sentence shall direct that he shall suffer death in the manner authorized by law. Section 324 When an accused is sentenced to death, the Court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred. Section 325 A certificate under the hand of the Registrar or other officer of the Court sentence of death has been passed, and naming the person condemned, shall be sufficient authority for the detention of such person. Section As soon as conveniently may be after sentence of death has been announced, if no appeal from the sentence is preferred, or if such appeal is preferred and the sentence is confirmed, then as soon as conveniently may be after such confirmation, the presiding judge shall forward to the president a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make. 2. The president shall communicate to the dais judge or his successor in the office, the terms of any decision which he may have reached in the matter, and such the judge shall cause the tenor and substance thereof to be entered in the records of the Court. 3. The President shall issue a death warrant, or an order of the sentence to be commuted, or a pardon, under his hand to give effect to the said decision. If the sentence of death is to be carried out, the warrant shall state the place where and the time the execution is to be had, and shall give directions as to the place of burial of the body of the person executed. If the sentence is commuted of any other punishment, the order shall specify that punishment, if the person sentenced is pardoned. The pardon shall state whether it is free, or to what conditions, if any, it is subject. 5

6 Section Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the Court before whom a woman is so convicted thinks fit to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by the court. 2. The question whether the woman is pregnant or not shall be determined by the Court on such evidence as may be laid before it either on the part of the woman or on the part of the Republic and the Court shall find that the woman is not pregnant unless it is proved affirmatively to its satisfaction that she is pregnant. 3. Where on proceedings under this section, the Court finds that the woman in question is not pregnant the Court may appeal to the Supreme Court of Appeal and that Court, if satisfied for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her a sentence of imprisonment for life. Section 328 Where a woman convicted of an offence punishable with death is found to be pregnant in accordance with section 327, the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death. No death sentence can be passed on a juvenile but instead life imprisonment. 25 Otherwise, there are no legal special considerations given to women with very young children or dependants. 5.0 DEATH SENTENCE PRACTICE IN MALAWI There is a de facto moratorium on death sentence in Malawi since May As a result, death row phenomenon is not an issue in Malawi. In the Malawi history, there is no known case of court-martial imposing death sentence. In fact, it should be stated that Malawi has never been at war with any of its neighbours let alone any other State. Cases of treason have actually involved politicians and those cases have been dealt with by civilian courts. Coup d etat are also unheard of in Malawi. Hence, no military personnel has faced treason charge grounded in failed or foiled coup d etat. 25 See s.11 of Children and Young Persons Act. 6

7 Between 1964 and 1970, it was the High Court that dealt with murder and treason cases; and sentences for these offences was determined by law as mandatory death sentences. Thus, one does not get any guidelines of sentencing principles in murder and/or treason cases. From 1970, the traditional courts assumed total jurisdiction as the State policy was to prosecute all murder and treason cases in Regional Traditional Courts (RTC) where an accused had no right of legal representation. 26 These courts were abolished by the new Constitution on May 18 th, 2004; and thus no traditional court can now hear any serious criminal case. This experience has led to a big loss in experience in terms of both prosecuting and defending serious criminal cases in the High Court. It is only in the last nine (9) years that lawyers have been engaged in addressing members of the jury and judges summing up cases and directing members of jury. To say the least, the legal profession and judiciary lost a lot and are only recovering. This sad state of affairs just goes to underscore the need for re-training and re-orienting lawyers in handling death penalty cases. 6.0 PUBLIC OPINION ON DEATH PENALTY The public opinion seems to be for retention of death penalty. At the National Constitutional Conference held in Lilongwe in 1995, the present author was almost booed by a very representative grouping of Malawians that insisted on the new Constitution retaining death penalty. There are of course abolitionists calls coming from the Roman Catholic Church through its Catholic and Justice Peace Commission. One Supreme Court judge, Justice Kalaile has come out in the open lobbying law-makers and politicians to abolish death penalty that is expressly reserved by section 16 of the Constitution See s.24 of Traditional Courts Act. This provision is now, arguably, unconstitutional as it essentially negates the right to legal representation and right to equality. 27 See Kalaile (ed.), Right to Life in the Constitutional Court of the Republic of South African (1996). 7

8 Justice Kalaile made a few comments as introduction arguing for abolition of death sentence in a small booklet that reproduced the south African Constitutional Court s decision of State v- Makwanyane and Anor. The Malawi Law Society has not voiced its position on the matter let alone most human rights NGOs. It is only the Centre for Human Rights and Rehabilitation (an NGO set up by the then exiled Malawians) and Malawi CARER, a human rights NGO headed by Dr Vera Chirwa who was sentenced to die by hanging by a traditional court after being convicted of treason but had her sentenced commuted to life imprisonment after international pressure on the then Dr Banda s regime that has come up openly calling for scraping of the death penalty. The lack of interest or indeed main concern by lawyers and other activist who ought to be leading the call for abolition of death sentence stems from the de facto moratorium and absence of any tangible evidence of the President signing any death warrant secretly. 7.0 CONSTITUTIONAL ISSUES OF DEATH PENALTY Notwithstanding, the de facto moratorium on implementation of death sentence, there are some issues that need to be addressed before it is too late. Some of these issues are the following: 7.1 Whether death sentence being mandatory for murder and treason is constitutional or not? 7.2 Whether in homicide cases in Malawi defendants are properly represented when there is glaring evidence that new graduates with less than 1 year trial experience are representing Defendants? 7.3 Whether jury trial leads to fair trial in Malawi or ought to be substituted by the concept of a judge sitting with assessors? 7.1 Mandatory Death Sentence There is case law from the Commonwealth and United States of America that holds that mandatory death sentence is unconstitutional. These opinions 8

9 would be very persuasive if cited before the High Court and the Supreme Court of Appeal. This is a challenge that the author has mounted in one case where an accused was convicted of murder and sentenced to die. The case is likely going to be argued in June Effective Legal Representation This is a very tricky issue in Malawi given the very limited number of lawyers in Legal Aid Department. As of now there are only 6 legal aid advocates in a country of about 10 million with 95% not able to afford legal representation. Given the huge backlog of cases that the Malawi Government and donor communities are trying to clear and also the moratorium on death penalty, it is very unlikely that any such issue will receive any serious attention let alone sympathy. Part of the solution is to intensify on short courses for all lawyers involved in both prosecuting and defending homicide cases. This would partly answer the concerns of poor people getting a raw deal from a criminal justice system that is supposed to treat all people equally and ensure that death penalty is not passed arbitrarily. 7.3 Jury Trials There is a lot of disenchantment with jury system of trial in terms of quality justice. Bizarre decisions are made by jurors that defy any legal sense. A few of them are corrected by Malawi Supreme Court of Appeal when hearing appeals. The Director of Public Prosecution s off ice is also concerned about effectiveness and fairness of jury trials. Indeed in most cases where an accused raises provocation as defence the jury is quick to acquit rather than enter a verdict of guilty for manslaughter despite being so directed by the trial judge. It would be otherwise if a judge was to sit with them as assessors. The judiciary appears to be content with the system for two reasons. First, it offers them a chance to dispense justice quickly as they do not have to write lengthy judgments on issues of liability as they have only to record jury s verdict that usually is communicated to the trial judge after less than one 9

10 hour s deliberation. Secondly, in politically sensitive cases and those that have attracted public debates or opinion the issue of liability s passed on to members of public themselves through jurors. Hence, it offers a valid excuse for avoiding the judiciary clashing with the executive and/or legislature. If there is to be a change in the jury system, one has to engage the politicians in the lobbying. To be effective one needs to compile data that would demonstrate failure of justice under the present system. Law reform seems to be the solution and the role of Malawi Law Society and the human rights NGOs would be very critical. 8.0 CULTURE OF CONSTITUTIONALISM AND HUMAN RIGHTS The culture of human rights is only ten (10) years old. There is need to consolidate and deepen constitutionalism and human rights in Malawi. The high level of poverty, ignorance of human rights, high illiteracy rate and lack of political will by the politicians to be a significant partner in inculcating into the minds of Malawian a new culture militate in the fight against abolition of death penalty in Malawi. Whenever the High Court reviews conduct or legislation, the executive and legislature rushes to the press and publicly cries out that the courts in Malawi are usurping their functions that the electorate gave to the politicians. In fact in one case one lawyer cautioned the judiciary of dangers of pushing Malawi into juristocracy. This just goes on to demonstrate failure to grasp the concepts of constitutional review and constitutionalism that are essential if Courts are to promote the new culture of constitutional supremacy as opposed to parliamentary supremacy; and the need for the State to always justify its conduct within constitutional parameters. 9.0 CONCLUSION The de facto moratorium on carrying out of death penalties should not lure Malawians into deep slumber that there is nothing wrong with the law. Lawyers must form the front liners at the battle front assaulting constitutionality of mandatory death sentences and any practices that makes the imposition of death sentence appear to be arbitrary and discriminatory. They must also build up enough blocks that will stand 10

11 the lobby efforts to achieve law reform that will eventually see death sentence disappear in our Constitution and statute books. 11