Malawi and the Puzzle of Constitutional Death Penalty Clauses

On April 28, 2021, the Supreme Court of Appeal of the Republic of Malawi found the death penalty unconstitutional in its entirety. This decision, Khoviwa v. Republic, was notable because Malawi’s 1994 constitution specifically preserves the death penalty from constitutional challenges based on the right to life provision at Article 16. Khoviwa is the first example of a common law court finding the death penalty unconstitutional despite an explicit constitutional provision authorizing the death penalty—what constitutional lawyers call a “savings clause.” Because death penalty savings clauses exist in most common law constitutions, the Malawi Court’s decision could be a roadmap for future constitutional challenges elsewhere.

The procedural circumstances of Khoviwa were complex. After the Malawi High Court invalidated the mandatory death penalty in 2007, prisoners were entitled to a sentencing hearing in which they could present mitigating and aggravating factors. However, sentencing hearings may not have occurred for prisoners who were sentenced to death before this decision, those whose mandatory death sentences were still on appeal at that time, and those who were once on death row but commuted to life imprisonment before 2007. The Supreme Court of Appeal in Khoviwa corrected these gaps by invalidating the death penalty in its entirety and requiring de novo sentencing hearings at the trial level for all prisoners who were originally sentenced to death.

Malawi’s constitution was drafted in 1994 after the country’s transition to democratic, multiparty politics. The constitution came out of an elaborate popular consultation process, which resulted in a more progressive and rights-protecting document than the country’s initial independence constitution. For instance, the 1994 constitution contains a right of access to justice, protection of human dignity, and strict limitations on “states of emergency.” Among the most progressive aspects of the new constitution was the application of international human rights law to Malawi’s legal system. Article 11 requires courts interpreting the constitution to consider international and foreign law in their decisions. Article 44 prohibits limitations on rights that conflict with international human rights standards, while Article 211 states that international law is part of the laws of Malawi. Malawi’s constitution was never intended to be an isolated, inward-looking document; rather it evolves as the standards of the international community evolve. Notably, no death sentences were ever carried out under this new constitution. Malawi’s last executions took place in 1992 under the former dictatorship.

From a comparative constitutional perspective, the Court’s most important holding was its treatment of the death penalty savings clause at Article 16 of the Malawi constitution:

Every person has the right to life and no person shall be arbitrarily deprived of his or her life: Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offence under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life.

Explicit constitutional savings of the death penalty have existed in many postcolonial constitutions in common law Africa and the Caribbean, often on the model of the original Article 2 of the European Convention on Human Rights (though the death penalty clause was removed entirely by Protocols 6 and 13 to the Convention). This provision had two parts: a right to life, and then a specific exclusion for a death sentence, reading:

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Similar provisions still exist today in, for instance, Zambia’s constitution at Article 12, Ghana’s constitution at Article 13, Uganda’s constitution at Article 22, Sierra Leone’s constitution at Article 16, eSwatini’s constitution at Article 15, and The Gambia’s constitution at Article 18.

Notice how the Malawian provision is different. It did not simply carve out the death penalty as an exception to the right to life. As the Court explained in Khoviwa, Article 16 of the Malawian constitution actually created two distinct rights: a right to life and a right not to be arbitrarily deprived of life. Article 16 of the Malawian constitution ends with the words “shall not be regarded as arbitrary deprivation of his or her right to life.” In other words, as the Supreme Court of Appeal reasoned, the death penalty was preserved only against a constitutional challenge based on the right not to be arbitrarily deprived of life. The death penalty was not immunized against the right to life itself or other constitutionally protected rights such as protection of human dignity and the prohibition on cruel and degrading punishment at Article 19. Looking to Article 45 of the constitution, the Court determined that the right to life was non-derogable, while Article 44 prohibited limitations on rights that conflicted with international human rights law. The death penalty, the Court reasoned, unlawfully infringed on the right to life.

The direct importance of the Malawi Supreme Court of Appeal’s decision may be blunted by the unique wording of the constitution. First, Article 16 is unique because no other common law constitution appears to separate the right to life from the arbitrary deprivation of life. Second, the interpretive provisions of the Malawi constitution are unusually progressive, requiring courts to look to foreign and international human rights law and to interpret rights-granting provisions expansively.

Nonetheless, the Malawi Court’s decision in Khoviwa will no doubt be useful in future constitutional challenges elsewhere. Judges deciding constitutional challenges to the death penalty have often hidden behind a “plain meaning” method of interpretation: an interpretation that reconciles constitutional provisions is preferred over one that renders a constitutional clause meaningless. In the Khoviwa case, the Malawian Court interpreted the right to life provision to exclude the death penalty entirely—essentially rendering the death penalty provision meaningless. However, the Khoviwa Court validated a more progressive interpretive method: namely, that an interpretation of the constitution that expands fundamental human rights protections and that narrowly construes limitations on rights is preferred over an interpretation that restricts rights. Finding support for this interpretive method in the broad protections of the Malawian constitution and in international human rights law, the Khoviwa Court gave an important roadmap for human rights litigators seeking to challenge the death penalty in other jurisdictions.

In addition, Malawi has contributed to a growing normative consensus that the death penalty violates the right to life under international human rights law, even in countries where the death penalty is constitutionally authorized. This could be especially useful in countries like Tanzania and Lesotho, which have constitutions that protect the right to life without an explicit exception for the death penalty. Newer constitutions are also more ambiguous than they were during the early independence period. For instance, newer constitutions such as those in Kenya (2010) and Zimbabwe (2013) depart from the model of the right to life provision in the original European Convention on Human Rights. Zimbabwe’s constitution provides for an unqualified right to life at Article 48, and then includes authorization only for an extremely narrow category of capital punishment: namely, only adult men who commit aggravated murder. Kenya’s constitution is even more ambiguous, stating that one “shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law” (Article 26). Yet, except for abortion, the constitution provides no authorization and the Supreme Court has not interpreted “other written law” yet. Although it was voted down by the legislature in 2020, Article 38 of the draft constitution of The Gambia would have had a similar provision as the Kenyan one. These ambiguous provisions do not provide explicit authorization for the death penalty, and in any event only apply to the right to life, not the right to be free from cruel or degrading punishment, the right to human dignity, or other important rights. Likely, the drafters of these constitutions deliberately worded these provisions to leave the ultimate death penalty decision to courts.

The Malawi Supreme Court of Appeal’s decision in Khoviwa provides a roadmap for overcoming constitutional death penalty savings clauses. Future courts may well find that constitutional right to life provisions that make exception for the death penalty do not prevent challenges to capital punishment based on other constitutional rights. The interpretive method laid out by the Malawian Court could also assist human rights litigators who challenge the death penalty. If two interpretations of a constitutional provision are possible, courts should favour the one that expands the fundamental right and narrowly construes the limitation. Thanks to this roadmap, Khoviwa will no doubt be widely cited, followed, and distinguished for years to come.

Andrew Novak is Assistant Professor of Criminology, Law and Society at George Mason University. Twitter: @andrewjnovak