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Rep v. Chimkango: The Application of Kafantayeni to Pre-resentencing Appeals Against the Mandatory Death Penalty in Malawi

Document Cited in Related
Vincent
Published date01 November 2018
Pages527-547
DOI10.3366/ajicl.2018.0247
Author
Date01 November 2018
INTRODUCTION

In Kafantayeni v. Attorney General,1 the Malawian High Court ruled that the mandatory death sentence for murder was unconstitutional and ordered that the applicants should be resentenced. This order extended to all 200 death sentences at the time as they had been imposed as mandatory sentences for murder. However, before the resentencing process began, the Malawi Supreme Court of Appeal (MSCA) started entertaining appeals against mandatory death sentences. By September 2014, only one person had been granted a resentencing hearing by the High Court while the MSCA had upheld 13 of the 18 death sentences it had reviewed on appeal.2

As anticipated,3 when the resentencing process began, the High Court was soon faced with the question of whether offenders whose mandatory death sentences had already been decided upon by the MSCA were entitled to resentencing in Rep v. Chimkango (Chimkango 3).4 While admitting that a resentencing hearing is essentially different from an appeal, the court noted that it was wary of breaching the doctrine of judicial precedent. It decided that the best remedy in such a scenario was to remit the case to the MSCA for ‘necessary and appropriate directions’.5 It is this decision that is the subject of this article. The decision in Chimkango 3 is crucial for at least three reasons: it illustrates the procedural problems that the appeals against mandatory death sentences have raised; it reveals the lack of seriousness that characterised some of the sentencing appeals in confirming death sentences; and it gives insight into the misconceptions regarding the significance of Kafantayeni on the legal status of death-row prisoners.

This article considers Chimkango 3 against the backdrop of Kafantayeni and a technical understanding of the appellate process in as far as appeals against sentence are concerned. It argues that the High Court should have heard the matter. The article also examines the propriety of the appellate procedure before resentencing and argues that the MSCA had no power to hear appeals against mandatory death sentences. It also analyses the MSCA's decision in Yasin v. Rep6 which took centre stage in Chimkango 3 for the suggestions that it ‘extended’ the right to resentencing to all prisoners sentenced under the mandatory death sentence regime and that it laid out the ‘procedure’ for resentencing. The article also dismisses the contention in Yasin that the right to be resentenced is waivable. Three grounds are advanced in support of this position. First, holding otherwise denies the obvious reality of the context in which the appeals were brought. Second, the right to waiver is inapplicable because the offenders were in effect unsentenced prisoners. Third, even if a waiver could be possible there was no indication on the relevant court records that such a waiver had taken place.

The article commences with a brief background to the resentencing process by looking at the death penalty in Malawi and the decision in Kafantayeni. It then examines Chimkango 3 before considering Yasin and concluding with a general critique of the appellate procedure adopted by the MSCA in hearing appeals against mandatory death sentences.

 THE DEATH PENALTY AND <italic>KAFANTAYENI</italic> Context

The mandatory death penalty in Malawi was introduced by the British colonial government in 1929. Before this, history tells that while death was a permissible form of punishment among natives, it was only resorted to if the offence undermined public safety or compensation was not paid.7 Malawian law presently has at least 12 capital offences. The Penal Code has eight capital offences – treason, piracy, rape, genocide, robbery, burglary, housebreaking and murder8 – while the Defence Force Act9 (DFA) prescribes death for aiding the enemy, communication with the enemy, mutiny, failure to suppress mutiny, treason and murder.10

However, courts have been so reluctant to impose death that it has largely only been imposed for treason and murder,11 and even then only because these offences were until 2007 punishable with absolute mandatory death sentences. These absolute mandatory death sentences meant that there were no circumstances in which these offences could attract a lesser penalty.12 Treason cases subsided with the onset of multiparty democracy in 1994. From 1995, death sentences have therefore only been passed for murder, with 200 mandatory death sentences handed down for the offence between 1995 and 2007.13 However, by 2007, 169 of these sentences had been commuted to life imprisonment.14 As of June 2014, there were only 29 prisoners on death row.15

 The Decision in and Impact of <italic>Kafantayeni</italic>

Given this context, Kafantayeni was a far-reaching decision as it had the potential to bring the death penalty in Malawi into disuse and also significantly reduce the number of prisoners serving life sentences.16 It would be of little use to engage in a full analysis of the entire judgment here since Kafantayeni has been discussed in considerable detail elsewhere.17 What is crucial for the purposes of this article is the remedy that was given by the court and its implications for all prisoners sentenced to mandatory death sentences.

The case was brought by six applicants who challenged the constitutionality of section 210 of the Penal Code which prescribed the mandatory death penalty for murder. The High Court ruled that the mandatory death penalty for murder was unconstitutional primarily because it precluded a court (both a trial and appellate court) from individualising the sentence to fit the offence and the offender, thereby resulting in disproportionate sentencing. The penalty was therefore found to be inconsistent with the right to a fair trial, the right to dignity, the prohibition of cruel and inhumane punishment, and the right of access to justice. The court concluded:

The action of the plaintiffs therefore succeeds and we set aside the death sentence imposed on each of the plaintiffs. We make a consequential order of remedy under section 46(3) of the Constitution for each of the plaintiffs to be brought once more before the High Court for a Judge to pass such individual sentence on the individual offender as may be appropriate, having heard or received such evidence or submissions as may be presented or made to the Judge in regard to the individual offender and the circumstances of the offence.

From a criminal procedure perspective, Kafantayeni reversed the status of the applicants from sentenced to unsentenced prisoners. Although the order was specific to the six applicants, there was no doubt that this judgment was applicable to all offenders sentenced under the mandatory death penalty. Accordingly, since all the 192 death-row inmates at the time were murder convicts, literally every death sentence had been set aside by virtue of Kafantayeni and thus every prisoner was entitled to a resentencing hearing in the High Court.18 This was confirmed by the MSCA in Jacob v. Rep19 and reaffirmed in Yasin where the MSCA stressed that the order for resentencing in Kafantayeni ‘affected the rights of all prisoners who were sentenced to … death under the mandatory provisions of section 210 of the Penal Code. The right to a re-sentence [hearing] therefore … accrued to all such prisoners.’20 Essentially, the effect of Kafantayeni was to render all death-row prisoners unsentenced prisoners. This is further illustrated by Rep v. Payenda where Kapindu J observed during the resentencing of the accused that ‘the previous sentence having been declared constitutionally invalid [in Kafantayeni], the valid sentencing is taking place now.’21

This construction of the impact of Kafantayeni is crucial because it emphasises that eligibility for resentencing stems from the fact of being sentenced under the mandatory death penalty provision. Inevitably, eligibility for resentencing extends to prisoners whose sentences were already commuted to life. It also encompasses offenders sentenced to other forms of mandatory penalties that could only be triggered by the mandatory nature of the death penalty as a result of the mandatory death penalty. The primary sentence being unlawful on grounds of unconstitutionality, the unlawfulness should extend to any mandatory alternatives it triggered. The mandatory alternatives are not self-standing punishments since their mandatory character automatically falls away once the death penalty is stripped of its mandatory nature. Therefore, if, in the absence of the factors that made them eligible for the mandatory alternatives, the offenders could not have been sentenced to the mandatory death penalty, neither should the presence of those factors attract any mandatory sentence. This is supported by the fact that the penal provisions themselves make it clear that these punishment are to be imposed ‘in lieu’ of the death penalty. Thus the presumption was that the death penalty would definitely be imposed should the sentencing proceed under section 210. Accordingly, eligibility for resentencing extends to murder convicts who were saved from the death penalty and sentenced to mandatory life sentences on account of being pregnant.22 It also extends to all offenders sentenced to mandatory detention at the pleasure of the President, a punishment applicable to capital convicts who were under the age of 18 years at the time the offence was committed.23

The question that arose was whether eligibility for resentencing extended to offenders whose mandatory death sentences had since been confirmed by the Supreme Court of Appeal. The High Court fell short of holding that such offenders did fall within the scope of Kafantayeni.

 THE DECISION IN <italic>CHIMKANGO 3</italic> Facts of the Case

Chimkango 3 was a resentencing hearing that arose in Chimkango 3 from the mandatory death sentence imposed on the accused by the High Court in Rep v. Chimkango (Chimkango 1).24 The accused fatally stabbed the deceased following a...

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