Survey resurrects debate on death penalty status

A recent Afrobarometer survey revealing divided public opinion on the death penalty in Malawi has reignited a critical debate on its legal status. While 50% of Malawians believe no crime justifies capital punishment, 48% consider it a fair penalty for serious offenses like murder. This public sentiment clashes with Malawi's evolving jurisprudence, which has seen the Supreme Court of Appeal initially abolish the death penalty in 2021, only to reinstate it later the same year as a discretionary, non-mandatory sentence. The government maintains a de facto moratorium on executions since 1994 but has indicated a need for national consultations to achieve consensus, highlighting the complex interplay between constitutional rights, judicial precedent, international obligations, and public will.

The enduring debate surrounding the death penalty in Malawi has been freshly invigorated by the recent findings of an Afrobarometer survey. Published on June 2, 2026, the survey highlights a nation deeply divided on the issue, with half of Malawians believing no crime warrants capital punishment, while a significant 48% view it as a just retribution for the most heinous offenses, particularly murder. This divergence in public perception underscores the precarious and complex legal status of capital punishment in the country, prompting renewed calls for national dialogue and legislative clarity.

Malawi's journey with the death penalty has been marked by significant judicial pronouncements and a prolonged de facto moratorium on executions, yet the punishment remains on the statute books. The tension between constitutional rights, international human rights standards, and the Penal Code's provisions creates a challenging landscape for legal practitioners. This article will explore the historical and current legal framework of the death penalty in Malawi, analyze key judicial decisions that have shaped its application, and discuss the implications of the recent survey findings for the future of capital punishment in the jurisdiction.

The legal framework for capital punishment in Malawi is rooted in its Penal Code, which designates offenses such as murder, treason, and certain forms of aggravated robbery and rape as capital crimes. Historically, the death penalty for murder was mandatory, leaving judges with no discretion in sentencing once a conviction was secured. However, Malawi's 1994 Constitution, adopted after the transition to multi-party democracy, introduced a progressive Bill of Rights, including the right to life under Article 16. This right, while fundamental, included a proviso stating that the execution of a death sentence imposed by a competent court for a criminal offense would not be considered an arbitrary deprivation of life.

A pivotal moment arrived in 2007 with the landmark decision of *Francis Kafantayeni and Others v Attorney General* (Constitutional Case No. 12 of 2005). The Constitutional Court ruled that the mandatory imposition of the death penalty for murder was unconstitutional, violating the rights to human dignity, a fair trial, and protection from inhuman treatment or punishment under sections 19(1), (2), (3), 42(2)(f), and 41(2) of the Constitution. This ruling effectively abolished the mandatory death penalty, granting judges discretion in sentencing and necessitating resentencing hearings for numerous death row inmates. Following this, the Penal Code was updated in 2011 to reflect this discretion.

Despite the legal retention of the death penalty, Malawi has maintained a de facto moratorium on executions since 1992, with no executions carried out since the advent of multi-party democracy in 1994. Successive presidents have refused to sign death warrants, effectively commuting existing death sentences to life imprisonment. This practice, coupled with Malawi's accession to international human rights treaties like the International Covenant on Civil and Political Rights (ICCPR), has positioned the country as abolitionist in practice, even while the death penalty remained legally permissible.

The legal landscape of the death penalty in Malawi experienced further significant, albeit fluctuating, developments in 2021. In April of that year, the Supreme Court of Appeal, in *Khoviwa v Republic* (MSCA Miscellaneous Criminal Appeal No 12 of 2017), delivered a landmark ruling that declared the death penalty unconstitutional in its entirety. The Court reasoned that the death penalty, by negating and abolishing the right to life, was impermissible under Malawi's Constitution, particularly in light of the right to human dignity and the prohibition of cruel, inhuman, or degrading treatment or punishment under Article 19. This decision was widely celebrated by human rights advocates and appeared to align Malawi definitively with the global abolitionist trend.

However, this abolitionist stance was short-lived. In August 2021, the Supreme Court of Appeal issued a “perfected” judgment in *Khoviwa v Republic*, which reversed its earlier decision. The revised ruling affirmed the unconstitutionality of mandatory death sentences but reinstated the death penalty as a discretionary punishment that trial judges could still impose in capital cases. This reversal created a complex legal duality: while the mandatory application of capital punishment remains unlawful, its discretionary imposition is still permissible under Malawian law. This judicial oscillation highlights the deep-seated legal and societal tensions surrounding the issue, particularly concerning the interpretation of the constitutional right to life and the prohibition of cruel and inhuman punishment.

The ongoing de facto moratorium on executions since 1994, despite the legal retention of the death penalty, further complicates the situation. The Malawi Resentencing Project, initiated after the *Kafantayeni* ruling, has been highly successful, leading to the resentencing and release of over 140 former death row prisoners, none of whom were resentenced to death. This practical outcome demonstrates that even with judicial discretion, the imposition of the death penalty has significantly diminished. The recent Afrobarometer survey, indicating a near-even split in public opinion, adds another layer to this debate. While the government has called for national consultations to build consensus, human rights activists argue that fundamental human rights, such as the right to life, should not be subjected to public vote. This position is bolstered by Malawi's international obligations, which increasingly lean towards abolition.

Comparative law in the region, such as South Africa's complete abolition of the death penalty, provides a strong precedent for a rights-based approach. Malawi's own judiciary has, at times, demonstrated a willingness to interpret the Constitution in line with international human rights standards. The current legislative efforts, including a private member's bill to amend the Penal Code and Criminal Procedure and Evidence Code to remove all references to death sentences, indicate a potential path towards formal abolition, contingent on government leadership and parliamentary will.

The status of the death penalty in Malawi remains a delicate balance between constitutional provisions, judicial interpretation, international human rights norms, and evolving public sentiment. While a de facto moratorium on executions has been in place for over three decades, and mandatory death sentences have been abolished, the Supreme Court's 2021 reversal means that capital punishment, as a discretionary sentence, technically remains a legal possibility. The recent Afrobarometer survey underscores the public's divided views, prompting the government to consider national consultations to forge a consensus.

For legal practitioners, the current environment necessitates a thorough understanding of the nuanced legal position, particularly in capital cases. The emphasis on judicial discretion, the availability of mitigation evidence, and the right to resentencing hearings, as established in *Kafantayeni*, remain critical. Practitioners should closely monitor the proposed national consultations and any legislative initiatives, such as the private member's bill seeking to amend the Penal Code, as these could lead to formal abolition. The ongoing debate serves as a crucial reminder of the dynamic nature of human rights law and the imperative for legal professionals to advocate for consistency with international standards and the full protection of fundamental rights.