6 June 2022
In 2007, the Malawi High Court abolished the mandatory death penalty for murder and treason in the case of Kafantayeni and Others v. Attorney General. Following this ruling, judges were allowed to consider mitigating factors, such as a person’s prior criminal record, mental illness, drug or alcohol intoxication, age, trauma, and “sincere belief in witchcraft” at the time of the crime, when deciding on the sentence for murder and treason.
Consequently, a series of international, regional and national non-governmental organisations formed the Malawi Resentencing Project in 2014, in order to address the significant lack of capacity of Malawi’s legal aid sector to aid in prisoners’ resentencing trials.
However, from 2019, the political climate in Malawi surrounding the death penalty changed. Following a three-year hiatus, 12 death penalty sentences were handed out in 18 months as an attempt at deterring an increase in brutal attacks on victims with albinism.
In response to this change in circumstances, the partnership between Reprieve, Akin Gump and Legal Aid Bureau Malawi amended its main goals. Initially it had sought to train young legal aid lawyers in mitigating evidence to be used in resentencing trials. As it became clear that contextual changes would require the partnership to adapt its approach, the ROLE UK Programme supported the delivery of a two-and-a-half-day strategy session in November 2020. The aim of this session was to re-define the partnership’s objectives and create a feasible roadmap on how to best tackle the staggering increase in death penalties. Partner organisations noted how the strategy session also provided them with the opportunity to foster a much stronger and more trusting relationship.
By remaining flexible and changing its activities and primary goal, the partnership ensured that it was responding to the actual problem rather than moving forward with activities regardless of rapidly changing political and judicial circumstances that would ultimately render them useless.
Partner organisations also ensured that they mitigated the risk of being perceived as “doing too much” to help those committing brutal crimes against people with albinism by working with local albinism groups, including APAM – the Association of Persons with Albinism in Malawi.
Unexpectedly, given the recent increase in death penalties and the political debate around it, on 28 April 2021, Malawi’s Supreme Court of Appeal formally outlawed the death penalty following the case of Charles Khoviwa, along with 8 other people that had been submitted in 2018. Unfortunately, on 18 August 2021, the Supreme Court of Appeal retreated from the Khoviwa ruling, in an unprecedented and highly controversial move by the court.
Immediately after the ruling was overturned, the partnership reconvened to discuss how to best move forward to tackle this new challenge. A few days after the judgement, partners already had a three-way strategy in place, to advocate (both in relation to the judiciary and to the public), to continue their resentencing appeals despite this U-turn, and to continue to build capacity for legal aid lawyers to continue to resentence prisoners unfairly being held on death row.
The ROLE UK Programme’s role in supporting the collaboration between Reprieve, Akin Gump and LAB Malawi has helped to ensure the relationship runs quickly, casually and without bureaucratic challenges. This has increased the partnership’s efficiency particularly in their need to adapt to unprecedented change. The Programme’s support has also guaranteed that partners have been able to develop a close relationship, which has further eased communication. As partners face the resentencing hearings of those still on death row, ROLE UK Programme-supported trainings on mitigation will continue to be crucial.
In the face of the ongoing challenges in Malawi, the Programme will continue to support Reprieve in its capacity-building work with legal aid lawyers and paralegals. As A4ID’s partner Reprieve commented, “we cannot tackle this if we are not in a partnership and that partnership requires ROLE UK’s support.”
In February 2022, the Programme assisted Reprieve in their first trip to Malawi since the beginning of the pandemic. For two days, Reprieve staff met in person with LAB Malawi paralegals and legal aid lawyers to discuss case strategy on active cases of resentencing, with the remote support of Akin Gump. As a result of this training, LAB Malawi and Reprieve submitted eight bail requests. These prisoners had bail hearings on the 31 March 2022. We are now awaiting the court’s judgement.
As Reprieve highlighted, “the work for this partnership has just begun”.
For further insight into this project, read the full Story of Change paper here.
Thanks are due to Bronte Creighton-Shaw for drafting this blog.
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