In 2007, the Supreme Court of Malawi ruled in the case of Kafantayeni and Others v. Attorney General that it was unconstitutional to make the death penalty mandatory for murder or treason convictions.
[2] Four years after the court decision outlawing the mandatory death penalty, the Malawian Penal Code was updated to reflect the introduction of sentencing discretion in murder and treason cases.
[4] Prior to Malawi becoming a protectorate of the British Empire, the region's criminal justice system revolved more around the idea of compensation for wrongs and social solidarity.
Precolonial communities in the region seldom inflicted physical or severe punishments for antisocial or criminal behaviours unless a perpetrator failed to pay lipo, a fine for damages.
Hector Duff, a former Chief Secretary of the British Empire, erroneously claimed that in southern Africa's precolonial law, "Murder, battery, abduction, robbery, theft: these are the principal crimes which [the African] recognizes, and all of them.
Hastings Banda led a totalitarian dictatorship in the nation for the next 30 years, maintaining the colonial-era penal code and its provisions for a mandatory death penalty.
President Muluzi was an opponent of capital punishment[3] who, upon taking power, immediately commuted all active death sentences to life imprisonment.
The World Coalition to Abolish the Death Penalty blamed the lack of re-sentencing hearings on the fact that none of the 180 inmates could retain private lawyers, as indigent inmates were reliant on aid from public attorneys, many of whom lived far from the Zomba Maximum Security Prison in Zomba, Malawi, where the nation's death row was located.
The coalition expressed concern that inmates would die before they would get a chance to genuinely appeal their mandatory death sentences, as the life expectancy in Malawian prisons was 10 years due to overcrowding and rampant disease.
[12] To address this problem, the Kafantayeni Resentencing Project aided over 150 inmates who had received unconstitutional mandatory death sentences, particularly those whose court files were missing or lost.
On March 7, 1970, Walla Laini Kawisa was arrested after his fingerprints were found at the scene of an attempted burglary that was unrelated to any of the murders.
The physical evidence suggested that his co-defendant, Pitilizani Chabuka, who received a life sentence in exchange for his testimony against Gome, was the sole perpetrator.
[19] Around 2014, Malawian officials responded to a spate of murders and mutilations against people with albinism by promising harsher punishments against their assailants, including the death penalty.
Mchinji District High Court Judge Esmey Chombo imposed death sentences against Douglas Mwale, Sophie Jere, and Fontino Folosani for their involvement in the murder, claiming that she hoped the death sentences would send "a strong message" to others who wished to commit such crimes against people with albinism.
In May 2019, Mikaele was sentenced to death for the murder, with Malawian courts declaring that their particularly tough stance in his case was in response to what they saw as a recent surge of attacks against albino citizens.
On April 3, 2016, Whitney Chilumpha, a 23-month-old baby girl with albinism, was abducted from her mother's side while sleeping in her home near the town of Kasungu.
[14] Twelve days later, the girl's skull, teeth, and clothes were discovered; she had been murdered and dismembered by her father, 30-year-old White Chilumpha, and 23-year-old James Kanjira.
"[3] They also stated that the death penalty was in violation of the Constitution of Malawi, which, in Chapter IV, section 16,[2] contains a provision protecting every citizen's "right to life.
He also criticized the fact that many sub-Saharan African nations still retain the death penalty and expressed a desire that Malawi might serve as an example to them.
[25] However, the abolition of the death penalty was criticized by others, such as Malawian social commentator Humphrey Mvula, who feared that the lack of capital punishment in the country could lead to mob justice.
[9] On 19 August 2021, following an appeal, the Supreme Court of Malawi overturned their judgment from April which had declared that the death penalty was unconstitutional.
[27] In May 2022, over twenty separate institutions submitted oral and written statements in a meeting concerning their desire to see the death penalty abolished.
Youth and Society Executive Director Charles Kajoloweka stated that he believed the death penalty to be in violation of a person's right to life, citing Amnesty International's research on executions following "grossly unfair trials," confessions extracted by torture, and "inadequate legal representation."
One Legal Affairs Committee member, Peter Dimba, stated that he wanted to consult public opinion before making a decision on abolishing the death penalty.