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Hats off, for the Malawi Supreme Court of Appeal

Yesterday, the Malawi Supreme Court of Appeal, declared the death penalty unconstitutional.

The move brings to an end, a legacy of capital punishment spanning many decades. More than ten years ago, the same Court, struck down mandatory death sentences, opening the door for re-sentencing hearings in which hundreds of condemned convicts, were humanised. Malawi has been most reluctant in its application of the death penalty. The last execution, in the Republic, was in 1992. Though the courts continued to churn out death sentences, by the dozens, successive Malawi Presidents have not signed any death warrants. A moratorium of sorts has been in place against the death penalty.

The aforesaid development, is refreshing, especially to those of us who campaign and defend against the death penalty, almost, on a daily basis, and yearn for the reform of the jurisprudence around the same question. But such is the character, of the Malawi Supreme Court of Appeal. It’s the same court, that annulled a presidential election not so ago, something very rare, in Africa, where rulers, generally, own judges and Magistrates, and control virtually, all arms of government. True, the Malawian example is likely not to be followed here.  Our first President signed death warrants like pay cheques! So did our second, third fourth, and now fifth, Presidents. Our Presidents have an obsession with the death penalty, unrivaled everywhere.

I have contended before that the politics of the Bosch case, and her eventual execution, have damaged our national psyche. I still can’t process, how a whole nation can find glory in killing a human being, even assuming the death penalty was humane. While progressive nations are discarding the punishment of death on both practical and human rights grounds, Batswana speak of the death penalty like a day at the races.

But the truth is that the death penalty is on its way out. We might not abolish it now, but it shall in time go the way of the dinosaur. Our Court of Appeal has resisted all efforts either to abolish the death penalty, or to reform the law, around it. It has, characteristically leaned in favour of a conservative approach, choosing precedent, and tight-lipped legalism, over jurisprudential reform.

Opportunities, have come and gone. Our Court of Appeal has been the most ardent defender of the death penalty, even if it might pretend disdain for it, or some form of reluctance to its application. It would be dishonest to suggest that it’s part has simply been limited to adjudication. The doctrine of extenuating circumstances, which evolved more through judicial interpretation, and is not legislative defined, has not been given any progressive interpretation for decades by that court, and lies in our statute, as an unchangeable relic of borrowed law. Yet when it came to more popular causes, like equity between sexes, the same court has not wasted time and has leapt at every opportunity to reform our laws.  The Court of Appeal’s adjudication in that regard has been very populistic. It is hoped that our Justices, both at the High Court, and the Court of Appeal, will finally develop the bravery to birth a new jurisprudence based on the inviolability of life. True, the language of our Constitution is not

eternally elastic as to permit every desired interpretation, especially by abolitionists. I am simply saying that the living tree metaphor has been denied death penalty jurispridence. To that extent, the Court of Appeal has been selective, and populistic in its jurisprudence on the subject of the death penalty.

In the Rodney Masoko case, the court simply deferred to the fact that there was prior jurisprudence on the question. It tossed the progressive approach of Motswagole J, out through the window. Motswagole J, had not pretended to abolish the death penalty. His judgement had, in effect, broadened the sentencing enquiry, and given the legislature, an opportunity to reform the law, by striking down a restrictive provision. It had opened a door to a consideration of factors which traditionally did not enter the sentencing enquiry, including the personal circumstances of the convict. It sought a new jurisprudence where a convict could be seen as a complete human being, in the sentencing enquiry. It recognised that there was more about a human being than their worst actions.

The least we should have seen would have been a gradual shift consistent with global trends in particular, as to what a sentencing enquiry must entail when the right to life, is itself an issue. It must be recalled, on ghost score, that the Constitution of Botswana does not prescribe the death penalty for any offence. In fact, it expressly protects the rights to life. As such, the punishment is not a constitutional imperative. It’s has been interpreted to be simply permissive of it. It is statutes, like the BDF Act, and the Penal code, that assigns the punishment to select offences.

Make no mistake about it, the people of Malawi would likely have voted overwhelmingly in favour of the death penalty, if same had been subjected to a referendum. Likewise, the people of South Africa, would likely have voted to for its retention, if they had a choice. But we must all, in time, come to the understanding that, the right to life is too valuable and fundamental to be put to a ballot. The Makwanyane case was based on critical judicial reasoning, not on the conservative, black letter approach. The drafters of the South African Constitution, had neither denounced the death penalty, nor okayed it. The court could just as well, have arrived at the decision that the death penalty was not unconstitutional. The court leaned in favour of life.

The Constitution, even in its permissive nature,  favours life. Taking a life, is not a constitutional objective. There is therefore no balanced approach, to be adopted. The courts must lean, towards life. Today, as we ponder over the bravery of the nine judges panel of the Malawi Supreme Court of Appeal, we are filled with hope. We remind that our opposition to the death penalty, is not symptomatic of any love for crime, criminality, or for criminals. We have simply looked beyond our hurts, and anger, and come to the conclusion  that all human life, is sacred, and that all life, is worth saving.Congratulations to the people of Malawi on having ridded themselves of an atrocious evil.

Chief On Friday

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