RE-HEARING OF CASES OF PRISONERS WHO WERE PREVIOUSLY SENTENCED TO THE MANDATORY DEATH PENALTY The Judiciary wishes to inform the general public that the high court will soon sit to re-hear cases of prisoners who were previously sentenced to the mandatory death penalty. The re-hearing will only deal with the question of sentence. The decision to re-hear the cases on sentence is aimed at complying with the judgment of the High Court sitting as a constitutional court in Kafantayeni and others v Attorney General Constitutional Case No.12 of 2005(Kafantayeni Case) and that of the Supreme Court of Appeal in Mclemonce v The Republic MSCA Criminal Appeal No.25 of 2005 (Mclemonce Case). Section 210 of the Penal Code (Cap.7:01) of the Laws of Malawi), before being amended in 2011, provided that ‘any person convicted of murder shall be sentenced to death.’ The section did not allow High court to exercise discretion (in sentencing a murder convict) to take into account mitigating and aggravating factors, to consider peculiar circumstances of the case, or to decide whether to impose a lower sentence. In effect, the section imposed a mandatory death penalty on murder convicts. The constitutionality of the imposition of the mandatory death penalty was challenged in Kafantayeni Case. On 27th April,2007 the High Court held that the imposition of the mandatory death sentence was a violation of the right to fair trial provided for under section 42 of constitution and was unconstitutional. For the avoidance of the doubt, the High Court DID NOT ABOLISH the death penalty but rather held that courts should be able to take into account all circumstances of the case and decide whether to impose the death penalty or a lower sentence. The Malawi Supreme Court of Appeal in the Mclemonce Case held that all prisoners who had been sentence and to the mandatory death penalty were entitled to be re-heard on sentence, for the court to take into account mitigating and aggravating factors of case and decide the appropriate sentence to impose. The court further observed that it was the duty of the Director of Public Prosecutions to bring before the High Court for the sentence re-hearing all prisoners sentenced to death under the mandatory provisions of section 210 of Penal Code. Copies of the two judgments can be accessed at High Court (Principal Registry) in Blantyre or be visiting the Judiciary’s website at judiciary.mw The Judiciary wishes to inform the public that it is ready to start re-hearing the case. For enquiries or further information, members of the public are advised to consult the Registrar of the High Court and the Supreme Court of Appeal.
Posted on: Tue, 11 Nov 2014 09:17:06 +0000
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