Lessons from Malawi: The Case That Challenged the Mandatory Death Penalty by Kiri Van Lengen-Welty and Saul Lehfreund

Lessons from Malawi: The Case That Challenged the Mandatory Death Penalty by Kiri Van Lengen-Welty and Saul Lehfreund

In this blog post, Kiri Van Lengen-Welty, Interim Lead Lawyer of the Africa Death Penalty Team at Reprieve, and Saul Lehrfreund, co-founder and co-Executive Director of the Death Penalty Project, examine the most strategic features in the Kafantayeni and Others v Attorney General case.

Until 2007, every person convicted of murder in Malawi was automatically sentenced to death. The Death Penalty Project, working with a coalition, helped challenge this practice and argued that this mandatory penalty was unconstitutional, inhuman, and a violation of fair trial rights and separation of powers.

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In the years before the seminal case of Kafantayeni and Others v Attorney General was decided, every person convicted of murder in Malawi faced an automatic death sentence, with no regard to their life history or to the individual circumstances of the offense. So, in 2005, a coalition made up of individual Malawian lawyers, the Malawi Human Rights Commission, and the Death Penalty Project set out to challenge this draconian sentencing regime. The case contended that the mandatory death penalty constituted inhuman and degrading treatment, amounted to an arbitrary deprivation of life, denied fair trial principles, and violated the principle of the separation of powers implicit in the Constitution.

The Court was presented with a large body of comparative case law and compelling decisions from constitutional courts around the world including decisions from the Judicial Committee of the Privy Council, the United States of America, and other jurisdictions including Uganda, South Africa, and India. The plaintiffs also placed great reliance on case law from the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights and the United Nations Human Rights Committee, in its interpretation of the International Covenant on Civil and Political Rights (ICCPR).

On April 27, 2007, the Malawi High Court, acting in its role as a Constitutional Court, ruled that the mandatory imposition of a death sentence for murder was unconstitutional, for it violated the protection against inhuman and degrading treatment or punishment, and denied the right to a fair trial by removing judicial discretion in sentencing. The Court also found that the mandatory death penalty violated the right of access to justice. They reasoned that if a sentence was automatic, no appeal on sentence would be available, meaning there could be no review of its fairness or appropriateness by a higher tribunal. The Court then overturned the death sentences of Francis Kafantayeni and five other plaintiffs and ordered that each be afforded a resentencing hearing in which both the circumstances of the individual and the specific offense would be considered.

The High Court of Malawi was inspired and greatly influenced by the large body of comparative death penalty jurisprudence relied on by the plaintiffs. Malawi had ratified the ICCPR in 1993 and critically, the Court strived to interpret the Constitution in accordance with the provisions of the ICCPR, which it recognized provide an authoritative guide to constitutional interpretation.

The Kafantayeni decision reflects current norms of public international law and the notion that the law should move progressively and dynamically towards the greater protection of human rights. The momentum away from mandatory death sentencing has become a global phenomenon, and this decision complements a diverse body of judicial decisions from a wide range of jurisdictions, in addition to the determinations of various regional and international human rights tribunals.

Over the course of two decades, Kafantayeni’s impact has also grown far beyond the bounds of the initial case. A few months after the decision was handed down, it was reaffirmed by the Malawi Supreme Court of Appeal in Twoboy Jacob v Republic. Then, in 2010, the Court expanded its impact in McLemonce Yasini v Republic, ruling that all individuals sentenced under the now-invalid mandatory death penalty law—even those whose sentences had already been commuted to life imprisonment—were also entitled to resentencing.

In response, Malawi amended its Penal Code in 2011 to reflect these legal changes, allowing judges to exercise discretion when sentencing for murder. However, despite these developments, limited resources in Malawi’s justice system—for example, at that time, there were fewer than 20 public defenders for the whole country—meant that progress on resentencing was slow. By late 2014, only one resentencing hearing had taken place. That same year, the Malawi Resentencing Project was launched by a coalition of stakeholders—including the Malawi Human Rights Commission, the Malawi Legal Aid Bureau, the Cornell Center on the Death Penalty Worldwide, and Reprieve—to help address barriers and provide legal representation to the 169 people affected by Kafantayeni and its successors.

As the resentencing hearings proceeded, the High Court developed a robust body of jurisprudence for considering aggravating and mitigating factors, and for addressing common issues such as how to deal with lost case files; violations of other constitutional rights, such as the right to appeal, the right to be free from torture; and the relevance of post-conviction conduct. The 2015 resentencing judgment in Republic v Makolija introduced a set of principles that heavily shaped future hearings, affirming the idea that the death penalty should only be imposed in the “rarest of rare” cases, and instructing courts to consider certain factors in sentencing, including but not limited to: age, lack of prior criminal history, mental health, existence of duress or provocation, degree of participation in the offense, remorse, childhood abuse, and good behaviour in prison.

The Resentencing Project’s success has also influenced broader perspectives on the death penalty in Malawi. A survey conducted by the Cornell Center on the Death Penalty Worldwide and the Paralegal Advisory Services Institute in 2017 found that village leaders, whose communities welcomed people home following their resentencing hearings, overwhelmingly opposed the death penalty. Many cited the lack of opportunity for rehabilitation if a prisoner is executed. As one leader put it, “There is no reform in death.”

Kafantayeni’s impact continues to be far-reaching. 20 years after the case was first filed, resentencing hearings for each of the 169 eligible people have now taken place. In not a single case was a death sentence re-imposed. As of April 2025, 165 of these people have been released from prison following completion of their new sentences. Kafantayeni, along with the Resentencing Project it generated, helped to correct the injustice of the mandatory death penalty and to show that systematic change is possible, even in under-resourced systems. The experience of Malawi has shown that when judges have the discretion to consider the individual facts of the offence and the circumstances of the offender, far fewer death sentences are recorded, and death row numbers diminish dramatically.

Now we are seeing the impact of Kafantayeni playing out around the world. For example, Kenya and Malaysia—two countries that have abolished the mandatory death penalty in recent years—have engaged with experts who worked on the Kafantayeni case and the Resentencing Project to learn from the established best practice and develop a plan for implementation accordingly. The case and its legacy have not only saved the lives of hundreds of Malawians but also contributed to a global movement toward the promise of rehabilitation.

Casebook Series

The REDRESS Casebook series showcases around 80 case studies of strategic litigation against torture from around the world to illustrate best practices to help strengthen the capacity of human rights lawyers worldwide. It was produced with financial assistance from the EU under the United Against Torture Consortium initiative.