Charles Khoviwa v. The Republic –Death Penalty Declared Unconstitutional In The Country Of Malawi

Key Takeaways

• Malawi Supreme Court abolished death sentence and held it derogatory to right to life.
• The various legal provisions awarding death sentence were declared to give a maximum punishment of life imprisonment.
• India still has the provision of death penalty even after various appeals and holds it to be not unreasonable.
• The assaulters should be subjected to a harsher punishment than death for a crime of such intensity that the provision of death penalty is an option before the Court to be awarded.

Introduction

The concept of punishment includes various theories of punishment. One of the theories is the theory of deterrence which targets to create a fear in the minds of the people against committing a crime. When a person is aware of the fact that his actions would be punishable and might lead to his death, he would most likely not commit the crime.

A lot of countries in the world have the provision of death penalty for severe offences against the fellow humans. It was incorporated in the legal justice system to provide a sense of security to the victims and their families that they have some recourse to seek justice. The intention was mostly to try to make sure that crime ratesin the countries are reduced. A huge number of countries in the African continent have taken the initiative to abolish death penalty in law; Malawi is one of those countries to have taken the step recently.

Malawi is a country in the southeastern part of Africa which was under the British rule for about 70 years. The country had dual court system earlier which later was simplified to a system of Magistrate’s Court and Local Courts at the lowest level followed by the High Court and then the Supreme Court of Appeal. The Magistrate’s court though has the power to listen to cases of rape, murder, etc. but cannot impose death sentence. The case has to be referred to the High Court for the Court to sentence.

Background

The case revolves around Charles Khoviwawho was sentenced to death by the lower Court.He was charged under Section 210 and convicted to a mandatory death sentence. The president had commuted the death sentence to life imprisonment after which the accused the approached the Supreme Court appealing for fault on the part of the Trial Court Judge.

Provisions of Malawi

The Malawi Supreme Court of Appeal discussed various provisions of law which deals with death sentence. The sections are:

• The Section 25 lays down what different kinds of punishments are to be awarded to an accused.
• The Section 26 deals with the provision of death sentence and states that a person who is sentenced to death shall face death as prescribed by law, i.e. by hanging or as warranted and at a placedecided by the Minister.
• Section 38 describes what would amount to treason, i.e. any act in preparation, endeavor or conspiracy against the government, policies of the government or tries to inciting violence in any way and the punishment for which would be death sentence.
• Section 63 deals with the crime related to piracy.
• Section 132 prescribes what would amount to rape and Section 133 prescribes the punishment for the same to be death or life imprisonment.
• Section 209 describes any unlawful action or omission on the part of a person would amount to murder and would be punished with death sentence under Section 210.
• Section 217A (a) prescribes the provision related to the offence of genocide.
• Section 309 of the Code laws down who would be liable under the offence of housebreak and burglary. It prescribes for a punishment of life imprisonment or death.

Observation and Analysis of the Court

The Malawi Supreme Court of Appealanalysed the essence of right to life to be the sanctity of having a life and declared it as the “mother of all rights”. The Constitution of the country has provisions which prohibit any sort of derogation from the right to life. The various provisions in the legislations that award death penalty for criminal offences are derogatory to the right to life. The Section 45 (1) of the Constitution of Malawi prescribes death penalty to be the supreme law of all laws.

The legislature of the country had previously amended Section 25 of the Penal Code which prescribed corporal punishment as it was prohibited under Section 19 (2) (b) of the Constitution. The amendment retained the death penalty though it is clearly derogatory to the provisions of right to life. The only assumption that could be made is that death penalty is sanctioned under Section 16 of the Constitution which is not acceptable.

The provisions under Section 25 (a) and Section 26 of the penal law which contains death as a sentence and various other provisions discussed above were declared to be read as life imprisonment. The punishment if given a non-mandatory status and made to be the maximum sentence would reduce the term of imprisonment for many.

Death Penalty in India

In India death penalty is considered as the highest degree of punishment that can be awarded, like in numerous other countries. The Constitution of India under Article 21 lays down that no person can be deprived of his right to life except in accordance with the procedure established under law and the state does not have the power to use its own discretion. Only a few offences in the country have been made punishable with death sentence.

The Indian legal system entails 10 Sections in the Indian Penal Code, i.e., Sections 120B (criminal conspiracy), 121 (Waging war), 132 (Abetting mutiny), 194 (false evidence), 302 and 303 (murder), 305 (abetting suicide of minor), 364A (kidnapping) and 396 (banditry with murder), which include death sentence as punishment along with Section 4 of the Prevention of Sati Act and 31A of the Narcotic Drugs and Psychotropic Substances Act.

The validity of death penalty has been challenged on various instances but the courts have always rejected the challenge. The first case of such challenge was Jagmohan v. State of UP in which the Court stated that neither the provision nor the abolition would be unreasonable. The provision is but used in the rarest of rare cases as prescribed in the Bacchan Singh v. State of Punjab case.

Conclusion

The decision to abolish death penalty though is accepted as a protection to human dignity, is derogatory to the rights of the victim. When we look into the matter of death penalty most of us would think of the victim of the accused and then the heart fills with disgust.

If a person is involved in numerous homicides or rapes, would it be justified that the victims lost their lives, their right to life and the one who took it away is enjoying his right to life? A terrorist seeking commutation or mercy after killing thousands of innocents should also be treated in the same scale. It is not just an offence against the victim; it rattles the lives of the people related to the victim. Death sentence would be too easy a punishment for the offences that are committed by the accused of such heinous crimes.