Capital punishment in Malawi is a legal punishment for certain crimes. The country abolished the death penalty following a Malawian Supreme Court ruling in 2021, but it was soon reinstated. However, the country is currently under a death penalty moratorium, which has been in place since the latest execution in 1992.
Capital punishment law In 2007, the Supreme Court of Malawi ruled in the case of Kafantayeni and Others v. Attorney General that it was unconstitutional to make the death penalty mandatory for murder or treason convictions. The ruling allowed judges to have discretion when deciding on sentences for murder convicts or those convicted of treason. In deciding on an appropriate sentence in a case, judges were to consider whether or not the inmate had a significant prior criminal record, mental illness, poverty, drug or alcohol intoxication, old age, youth, trauma, or a "sincere belief in witchcraft" at the time of the crime and/or at sentencing. Four years after the court decision outlawing the mandatory death penalty, the Malawian Penal Code was updated to reflect the introduction of sentencing discretion in murder and treason cases. The death penalty was an optional punishment for rape, armed robbery, and burglary, all of which could also be punished with life imprisonment. No convicts sentenced to death in Malawi since 1995 have been condemned for any crime other than murder.
Malawi also prohibits the death penalty for convicts who were under 18 at the commission of their crimes, as well as for pregnant women, inmates with intellectual disabilities, or inmates who have a mental illness that prohibits them from understanding their actions.
All death row inmates are housed in Malawi's only maximum security prison, located in Zomba. Executions have historically taken place at the prison in Zomba as well.
Precolonial and colonial history Prior to Malawi becoming a protectorate of the British Empire, the region's criminal justice system revolved more around the idea of compensation for wrongs and social solidarity. Precolonial communities in the region seldom inflicted physical or severe punishments for antisocial or criminal behaviours unless a perpetrator failed to pay lipo, a fine for damages. Hector Duff, a former Chief Secretary of the British Empire, erroneously claimed that in southern Africa's precolonial law, "Murder, battery, abduction, robbery, theft: these are the principal crimes which [the African] recognizes, and all of them. . . . he was wont to punish, according to his severe and simple code, by the supreme penalty of death."
Some scholars consider the usage of the death penalty in Africa to be "very much a part of the legacy of colonialism." In 1930, British authorities imposed a "Model Criminal Code" on its African colonies, making it mandatory for judges to impose the death penalty for inmates convicted of murder or treason. The death penalty remained optional for rape, armed robbery, and burglary. It was very common for British colonies to adopt hanging as a method of execution, as Malawi did.
Colonial courts often relied on dehumanizing African murderers and playing on racial tropes to convince a jury that an African defendant was dangerous enough to deserve a death sentence. Most executions in colonial Africa occurred in cases of premeditated murder, excessive violence, pecuniary motives, and especially cases of African colonists perpetrating crimes against colonial authorities. People convicted of murder under the colonial system would appeal first to the High Court of their region; next, they would appeal to their regional Courts of Appeal; and finally, their last resort would be to appeal to the Judicial Committee of the Privy Council in London. Once that final appeal failed, the execution could proceed. Between 1903 and 1947, Nyasaland (which is modern-day Malawi) passed 897 death sentences and carried out 181 executions, while 197 people had their death sentences commuted. In 1910, Nyasaland employed an African man named Mwamadi to serve as the official hangman of the region; although public hangings in Britain were abolished in 1868, many of the executions Mwamadi carried out were public.
Malawi's maximum security prison, the Central Prison located in Zomba, was constructed in 1920. Public executions were commonplace until 1924, when two men known as Jim and Makoshonga suffered botched executions in public; one had to be hanged twice, and the other was shot in the head after the rope gave way and dropped him to the ground. The scandal from this incident prompted Nyasaland to centralize all executions to one location and carry them out in private behind prison walls. Until Malawi temporarily abolished capital punishment in 2021, death row and the death chamber were still located at the Central Prison in Zomba.
Postcolonial history Colonial rule in Malawi ended in 1964. Hastings Banda led a totalitarian dictatorship in the nation for the next 30 years, maintaining the colonial-era penal code and its provisions for a mandatory death penalty. Under Banda's rule, there were at least 823 death sentences imposed in Malawi between 1972 and 1993, and 299 of those were carried out. The other death row inmates either died while awaiting execution, or they received pardons.
In the final year that Malawi carried out executions, there were approximately twelve inmates put to death, all by hanging, the only execution method permitted under Malawian death penalty law. Malawi's last execution prior to abolition occurred on September 26, 1992, in the prison in Zomba; Malawi allegedly hired a hangman from South Africa to carry out the death sentence.
Following the 1994 election of Malawi's first democratically elected president, Bakili Muluzi, a de facto moratorium on executions went into effect, meaning that the nation ceased carrying out executions without passing a law or declaring an official moratorium. President Muluzi was an opponent of capital punishment who, upon taking power, immediately commuted all active death sentences to life imprisonment. Nevertheless, even after President Muluzi issued his commutations, Malawian courts continued issuing mandatory death sentences in murder cases. Muluzi would again commute all death sentences to life on July 23, 1997, while pledging not to sign any execution orders. He commuted all death sentences once more on April 9, 2004, commuting 79 death sentences to life imprisonment and releasing another 320 inmates from prison altogether in his final year in office. That year, President Bingu wa Mutharika was elected. From his inauguration in 2004 to his death in April 2012, he refused to commute any death sentences or grant any inmates reprieves, but he also refused to sign any death warrants, thus further establishing Malawi's status as a de facto abolitionist nation.
Following the 2007 ruling prohibiting mandatory death sentences in Malawi, over 180 death row inmates won the right to a re-sentencing hearing. However, by 2012, none of those inmates had actually had their re-sentencing hearing take place. The World Coalition to Abolish the Death Penalty blamed the lack of re-sentencing hearings on the fact that none of the 180 inmates could retain private lawyers, as indigent inmates were reliant on aid from public attorneys, many of whom lived far from the Zomba Maximum Security Prison in Zomba, Malawi, where the nation's death row was located. The coalition expressed concern that inmates would die before they would get a chance to genuinely appeal their mandatory death sentences, as the life expectancy in Malawian prisons was 10 years due to overcrowding and rampant disease. To address this problem, the Kafantayeni Resentencing Project aided over 150 inmates who had received unconstitutional mandatory death sentences, particularly those whose court files were missing or lost.
By the end of 2020, there were 27 death row inmates in Malawi.
Notable cases From January 23–26, 1915, the Chilembwe uprising occurred in Malawi while it was still a British protectorate called Nyasaland; the leader of the uprising, John Chilembwe, was shot and killed by a police patrol on February 3, 1915. After the uprising was quelled, 36 Malawians were executed after convictions of murder and high treason. Unlike most British colonial executions, which were carried out by hanging, some of these executions were carried out by firing squad. To maximize the deterrent effect, some of the uprising's ringleaders were publicly hanged on a main road close to an estate where many European colonial authorities had been killed during the uprising.S Hynde, (2010). The extreme penalty of the law: mercy and the death penalty as aspects of state power in colonial Nyasaland, c. 1903 47. Journal of Eastern African Studies Vol. 4, No. 3, p. 547.
Starting in November 1968, a rash of over 30 killings known as the Chilobwe murders took place in the suburbs of Blantyre. While the murders were very unlikely to have all been committed by one individual, only one man ever went on trial for them. On March 7, 1970, Walla Laini Kawisa was arrested after his fingerprints were found at the scene of an attempted burglary that was unrelated to any of the murders. While in custody, Kawisa made several confessions to some of the murders. In October 1971, he was sentenced to death, with his sentencing judge declaring that Kawisa's motive for carrying out the murders was to overthrow the Malawian government. As he had pleaded guilty, Malawian courts prohibited Kawisa from appealing his sentence. Purportedly, he was executed by hanging in May 1972, although no Malawian officials made a public announcement confirming that an execution took place.
In late April 1969, eight Malawians were executed for attempting to assassinate President Hastings Banda and overthrow his government. Malawian security forces discovered and thwarted the plan in October 1967, and the inmates received their death sentences for treason, at the time a crime that carried the mandatory death penalty, in June 1968. The hangings took place in Blantyre.
On October 27 and November 10, 1976, respectively, Albert Muwalo, the former Minister of State in President Hastings Banda's office, and Focus Gwede, the former Head of the Malawi Security Police, were arrested on suspicions that they were involved in a plot to assassinate President Banda and overthrow his government. The two appeared before a court in January 1977 and were both sentenced to death on February 14. They were given a 30-day window in which they could appeal their death sentences, but their appeals were rejected in April and the death sentences were upheld. Muwalo was executed by hanging in the prison in Zomba on September 3, 1977. While Amnesty International initially reported that Gwede was hanged as well, he was actually held as a political prisoner until his release from prison in 1993 and reportedly died a free man in 2011.A C Mkandawire (2010) Albert Muwalo Nqumayo: His life and times, his death and legacy, pp. 125, 136, 142.
In a report on the death penalty published in 1979, Amnesty International reported that Malawi carried out at least 35 legal executions in the first four months of the year.
Around 2005, Ishmail Gome was sentenced to death for the murder of his local political rival, with the motive presented in court being that Gome wanted to replace his rival as the chieftain of a village. The physical evidence suggested that his co-defendant, Pitilizani Chabuka, who received a life sentence in exchange for his testimony against Gome, was the sole perpetrator. After consulting the International Human Rights Clinic for legal assistance, Gome was released from death row on June 28, 2017, and Chabuka admitted that he had fabricated the charges against Gome.
Albinism-related murders and the death penalty