By Maxwell Chisala
Some hundred odd days ago, the Malawi Supreme Court of Appeals abolished the death penalty, ruling it unconstitutional because it negates the right (to life) of murder convicts, never mind the ignored rights of murder ‘victims’, to put Malawi on the coveted growing list of countries that have outlawed the death penalty and have won glowing recognition from abolitionist organizations like the World Coalition Against the Death Penalty.
The court also said that while public opinion in Malawi was against abolition of the death penalty, this was ‘a rights issue and, therefore, a legal matter not to be settled in corridors of public opinion’. Nothing could be further from the truth because murder (as a crime) is a wrong against society so cannot be about the rights of the murdered persons (victims) alone. By asserting (or failing to assert) the rights of the murdered persons (victims), the court also serves (or fails to serve) the rights of all other members of the society who have the same human rights as the murdered person(s). Thus, criminal justice can never be ‘a private matter between the murdered person(s) and the murder convicts’, but necessarily involves ‘society’― thus, criminal justice protecting human rights necessarily remains a concern of the entire ‘society’.
Malawi has kept capital punishment on the books without exercising it –a “de facto” abolitionist, keeping capital punishment ‘legal’ but not exercising it–close to three decades. The death penalty has consistently garnered support from the Malawi public, all the while aware of the de facto moratorium (and even pushing in 1995 for the new Constitution retaining it) which means the Malawi public understood it to have been serving important penological and restorative value to relatives of murder victims and the society-at-large even though, in the eyes of the Court it may not have been sanctioned by the Constitution. To be sure, it is difficult to retain capital punishment in a purported democracy such as ours for such a long period without the support of the general public but it is very telling that the Court that abolished the death penalty was not aware of this nor could it recognize its significance. Elsewhere, the condemned (murder convicts) have often owed their fundamental right to life to ‘a history and tradition’ of diminished support for the death penalty locally and worldwide.
The judges are also said to have quoted EU law on murder-convict’s rights to life to buttress their death penalty abolition decision but conveniently ignored EU law on violent-crime victims’ rights protecting them against ‘a manifest disproportion between the gravity of the act and the punishment of the offender’ and recognition of crime-victims as rights holders owed a criminal justice response (just a Charter-paragraph away).
Criminal justice defines ‘victim’ with reference to harm caused by a criminal offence―persons who have suffered harm through acts or omissions that are violations or substantial impairment of their fundamental rights. Family members of a person whose death was directly caused by a criminal offence are included in the definition, because they too suffered harm as a result of the death of their relative. Because of this ‘double causation’―crime causing death and death causing harm to family members―these family members are “indirect victims of the crime”. So too is the society-at-large.
One thing is clear: murder convicts will eternally be spared from the pain that they so callously inflict on murder victim(s) and other “indirect victims of their murderous crime(s)” and so will all persons who have the predisposition to commit capital offences (horrible crimes).
It is also clear, there are few lawful rights without limitations (the mother of all rights is not one of them)―actually it is the justified limitations imposed on lawful rights that make lawful rights workable and practical. Human rights without limitations (the mother of all rights) is an impractical fiction and not based on reality.
Contribution by: Chisala, Maxwell L.
Short Bio: I am a native of the beautiful island of Likoma (Malawi) with unmatched passion for writing on critical issues affecting the legal, social and economic development trajectory of the country I love (Malawi).