government: presidential republic
state of civil and political rights: Partly free
constitution: 18 May 1994
legal system: based on English common law and customary law
legislative system: National Assembly (though the Constitution of Malawi provides that there shall be a Senate and a National Assembly, in practice, Malawi has a unicameral legislative body as only the latter is functional)
judicial system: High Court, Supreme Court of Appeal, Magistrate's courts
religion: Christian 79.9%, Muslim 12.8%, other 3%, none 4.3%
death row: 15 (as of 2017)
year of last executions: 26-9-1992
death sentences: 2
international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
1st Optional Protocol to the Covenant
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Statute of the International Criminal Court (which excludes the death penalty)
The offences for which capital punishment either can or must be applied are murder, rape, treason, armed robbery and burglary with aggravating circumstances.
Records show that from 1972 to 1993 during Kamuzu Banda's dictatorship a total of 823 were sentenced to death. Out of the 823 convicts, 299 were executed and the remaining ones either died in prison or were pardoned. Following Banda, Bakili Muluzi won the first multiparty election in 1994.
In 1994, Bakili Muluzi won the first multiparty election. He was credited for improving Malawi’s human rights record and had pledged to never sign a death warrant throughout his tenure, which lasted until May 2004. His successors, until now, have not changed attitude on the death penalty.
In April 2007, the Malawi High Court in the case of Francis Kafantayeni and Others v. Attorney General abolished the mandatory death sentence in Malawi. The sentences of all prisoners on death row were vacated and the defendants remitted for sentence. In 2011, Malawi approved amendments to the Penal Code allowing courts discretion in sentencing murder suspects.
In 2011, Malawi amended the Penal Code to allow courts wide discretion in condemning the murder suspects.
After many years of delay, finally, in February 2015, the Malawi High Courts began holding resentencing hearings on cases of the 191 prisoners entitled to be re-sentenced following the 2007 High Court ruling. The High Courts have now held 152 resentencing hearings at which Malawian defense attorneys presented mitigating evidence obtained by Malawian paralegals trained by the clinic. Volunteers funded by the NGO Reprieve and Cornell’s Center on the Death Penalty Worldwide have played a crucial role in this project by interviewing prisoners and their families, drafting legal documents, and serving as a liaison with local stakeholders.
As a result of this work, 121 former death row prisoners have been released, and another 28 have received a determinate sentence. None have been resentenced to death, and only one has received a life sentence.
On 12 November 2015, speaking at a workshop organised by the European Union, the United Nations (UN) and the Malawi Human Rights Commission (MHRC) to solicit views on the death penalty, the Minister of Justice and Constitutional Affairs, Samuel Tembenu, assured the EU, UN and MHRC that government was working towards the abolition of the death penalty.
In November 2016, Hands off Cain carried out a mission to Malawi in order to call for a vote in favor of the UNGA Resolution pro-moratorium, in the framework of a project supported by the Italian Minister for Foreign Affairs. The delegation headed by Antonio Stango (member of the Board of Hands Off Cain and President of the Italian League for Human Rights), and whose members include Eleonora Mongelli, Yuliya Vassilyeva and Raphaël Chenuil-Hazan (Vice President of the World Coalition against the Death Penalty) met in the capital of Malawi the Minister of Foreign Affairs and International Cooperation, Francis Lazalo Kasaila, and the Minister of Justice and Constitutional Affairs, Samuel Tembenu. The Foreign Minister announced that Malawi, which had abstained in previous votes, this year will vote in favor of the moratorium. As it was noticed in both meetings, Malawi, which since 1993 has observed a de facto moratorium on executions, may perform in the near future other significant steps towards abolition. However, to this end a gradually growing consensus among the population will be necessary. The Foreign Minister noted that it would be important to develop, with the help of organizations such as Hands Off Cain, information programs involving the civil society. The Minister for Foreign Affairs announced the vote in favor of the Resolution.
Last execution was carried out on 26 September 1992 in the Zomba prison by a hangman coming from South Africa.
In 2017, no new death sentence was issued and 15 inmates were on death row at the end of the year.
On 5 May 2015, Malawi was reviewed under the Universal Periodic Review of the UN Human Rights Council. The recommendations to continue the moratorium on the death penalty were examined by Malawi and enjoyed its support, while those to abolish the death penalty and to ratify the Second Optional Protocol to the ICCPR were rejected.
On 19 December 2016, Malawi, for the first time, voted in favor of the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly. It previously, abstained.