INTRODUCTION
The striking down of the mandatory death penalty for murder in 2007Footnote 1 has significant consequences for sentencing in capital cases in Malawi. Apart from the fact that courts now have discretion in sentencing for murder, the decision leaves life imprisonment as a likely alternative in punishing murder. While the 1994 Malawian Constitution (the Constitution) specifically prohibits the imposition of whole life sentences on children, it does not expressly prescribe any limitations on life imprisonment for adult offenders. This article considers the nature of life imprisonment in Malawi in view of constitutional and international standards. First it considers the international human rights aspects of life imprisonment. It then examines whether the situation in Malawi complies with these standards, by focussing on the meaning of life imprisonment and the possibility of release for offenders sentenced to life.
CONSTITUTIONAL STANDARDS ON PUNISHMENT
The Constitution elaborates a number of fundamental principles that underpin its framework and serve as a guide to state action. The entrenchment of the supremacy of the Constitution is probably the most noteworthy. According to section 5 of the Constitution, every law or act of government that is inconsistent with the provisions of the Constitution shall be invalid to the extent of any such inconsistency. This provision is important because most of the laws that apply to punishment in Malawi predate the Constitution. It calls for the examination of every law, practice and procedure concerning punishment in the light of the new Constitution.
The Constitution also enshrines the principle of the separation of powers.Footnote 2 In vesting legislative powers in Parliament,Footnote 3 the power to initiate and implement policies and laws in the executive,Footnote 4 and the enforcement and interpretation of laws in the judiciary,Footnote 5 the Constitution seeks to create a division of powers in the area of punishment as a means of curbing abuse of the rights of accused and convicted persons and maintaining a humane system of punishment. Thus, the Constitution expressly requires the state to “promote law and order … through the humane application and enforcement of laws and policing standards”.Footnote 6
The Constitution envisages significant changes to punishment and lays the foundations for a penal system that is premised on human rights. The Bill of Rights contained in chapter IV of the Constitution guarantees several rights that underpin fundamental changes to the penal regime and indeed the criminal justice system as a whole. For instance, it provides for the right to dignity,Footnote 7 and outlaws corporal punishment,Footnote 8 tortureFootnote 9 and cruel, inhuman or degrading punishment or treatment.Footnote 10 Section 16 of the Constitution restricts the application of the death penalty. The Constitution also has special provisions for sentencing children. For instance, it prohibits the imposition of life imprisonment without the possibility of parole on persons below the age of 18 years.Footnote 11 Imprisonment of children may only be used as a last resort and for the shortest time consistent with justice and public protection.Footnote 12 The Constitution also provides for the right to liberty and a wide range of rights for arrested, detained and sentenced persons.Footnote 13 For instance, it protects the right to be detained in humane conditions,Footnote 14 to challenge the lawfulness of one's detentionFootnote 15 and to be released from unlawful detention.Footnote 16 These provisions indicate that the Constitution envisages significant changes to punishment in Malawi.
The Constitution protects the right to equal and effective protection under the lawFootnote 17 and prohibits discrimination on the grounds of “race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status”.Footnote 18 The right to equality entails that all persons, including offenders, should be treated equally. In Masangano v Attorney General and Others (Masangano), the High Court said that despite the fact that prisoners are lawfully deprived of their liberty through imprisonment, they remain just as entitled to human rights.Footnote 19 Therefore, prisoners are entitled to all rights guaranteed to “every person”, subject to necessary limitations on account of their imprisonment. The Constitution also enshrines the right to human dignity in section 19. Specifically, it requires that human dignity be respected in all judicial proceedings or any proceedings before any organ of state and during the enforcement of a penalty; furthermore it prohibits corporal punishment, torture, and cruel, inhuman and degrading treatment or punishment. These provisions have significant implications for the aims and severity of criminal punishment and the manner in which it is enforced.
The Constitution also recognizes a range of rights that seek to protect the liberty of persons. The right to personal liberty is expressly protected under section 18 of the Constitution. In Re Chizombwe it was stated that liberty must be given due respect and should not be interfered with unduly.Footnote 20 In buttressing the protection of liberty, the Constitution also protects several other specific rights. These include the right to be promptly informed of the reason for one's detention,Footnote 21 the right to be brought before a court of law within 48 hoursFootnote 22 and the right to be released from detention with or without bail.Footnote 23 The Constitution also guarantees the right to challenge the lawfulness of one's detention and to be released immediately if such detention is unlawful.Footnote 24 The fact that this right is guaranteed to “sentenced” prisoners is significant. It creates the foundation for a challenge to a sentence of imprisonment even after a final order has been made by the Malawi Supreme Court of Appeal. Section 42(1)(e) can also be used to challenge the continued detention of prisoners sentenced to long term and life imprisonment. The wording of section 42(1) encompasses “every” sentenced prisoner, regardless of the length of his sentence.
The Constitution also contains additional provisions regarding children, who are defined as persons under the age of 18 years.Footnote 25 For instance, it requires that they must be treated in a manner that promotes their “reintegration into society to assume a constructive role”.Footnote 26 Further, children may only be imprisoned as “a last resort and for the shortest period of time consistent with justice and public protection”.Footnote 27 The imposition on children of life imprisonment without the possibility of release is specifically prohibited by section 42(2)(g)(i).
The Constitution also embraces international law. Section 11(2)(c) of the Constitution provides that courts of law “shall have regard to current norms of public international law and comparable foreign case law”, where they are “applicable” in interpreting the Constitution. Customary international law is automatically binding on Malawi and its application is subject to the Constitution and acts of Parliament.Footnote 28 Further, section 44(2) of the Constitution provides that permissible limitations to rights must be “recognised by international human rights standards”. International law can be used as a source of law in domestic courts.Footnote 29 This means that various standards for punishment contained in major international and regional human rights instruments are binding on Malawi and must be reflected in its penal regime.
INTERNATIONAL STANDARDS FOR LIFE IMPRISONMENT
International standards for life sentences reveal four key restrictions. First, life imprisonment without the possibility of release should not be imposed for offences committed by persons below the age of 18 years.Footnote 30 Regional human rights bodies have affirmed this position in their jurisprudence.Footnote 31
Further restrictions on the use of life imprisonment have been derived from various rights under international human rights instruments. These include the rights to human dignity and liberty, and the prohibition of cruel, inhuman and degrading punishment. Thus, as is the case with every other sentence, life imprisonment may only be imposed where it is proportional to the offence and the offender. Since life imprisonment is a severe sentence, it must only be imposed for serious offences committed in aggravated circumstances and where it is warranted to protect the community.
Article 77(1)(b) of the International Criminal Court Statute represents a desirous blend of these requirements by stating that life imprisonment may only be imposed “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. A life sentence that is disproportionate to the offence committed would violate the right to human dignity and the prohibition of cruel, inhuman and degrading punishment. The 1994 UN recommendations on life imprisonmentFootnote 32 go as far as stating that certain international safeguards regarding the death penalty may be applicable to life imprisonment. For instance, life sentences must only be imposed where there is “clear and convincing evidence” and only for “intentional crimes, with lethal or extremely grave consequences”.Footnote 33
Thirdly, there must be a realistic prospect of release for offenders sentenced to life imprisonment. Although an explicit prohibition of life imprisonment without parole is only recognized at treaty level in the Convention on the Rights of the Child (CRC) with respect to children, there is clear support in international law for the proposition that all prisoners must be offered the possibility of rehabilitation and the prospect of release. Indeed, article 10(3) of the International Covenant on Civil and Political Rights (ICCPR) requires that the prison system must have as its essential aim the reintegration and social rehabilitation of an offender. This intimates that prisoners cannot be kept in prison indefinitely. This is in line with article 10(1) of the ICCPR that requires that persons deprived of their liberty must be treated with “humanity and respect for the inherent dignity of the human person”. The human dignity of prisoners is intricately related to their having the prospect of being reintegrated into society.Footnote 34
While article 37 of the CRC prohibits life imprisonment for children without the possibility of release, neither the Universal Declaration of Human Rights nor the ICCPR makes specific reference to the prospect of release for prisoners in general. Similarly, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the European Convention on Human Rights (ECHR) do not have specific provisions for early release. However, the need for the possibility of release is echoed by various UN and regional instruments, as well as the jurisprudence of international human rights bodies. A range of UN and regional declarations and resolutions require that prisoners must have a prospect of release. For instance, rule 80 of the Standard Minimum Rules for Treatment of Prisoners states that, from the beginning of a prisoner's sentence, consideration must be given to his future after release. Further, rule 61 states that imprisonment should not emphasize the exclusion of prisoners from society but their continuing part in it. This is a clear indication that prisoners are expected to be released from prison at some point. In the European region, resolution (76) 2 on the treatment of long-term prisonersFootnote 35 encourages states to ensure that all prisoners are considered for release, stressing that “considerations of general prevention alone should not justify refusal of conditional release”.Footnote 36 It adds that life sentences should be reviewed after between eight and 14 years of detention and at regular intervals thereafter.Footnote 37 Further, the 2003 recommendation on conditional release (parole) requires the introduction of early release legislation applicable to all prisoners including lifers.Footnote 38 It is worth noting that, with the exception of the International Criminal Tribunal for Rwanda, the maximum sentence available to UN tribunals is life imprisonment with the possibility of release. For instance, article 110(3) of the Rome Statute makes a life sentence reviewable after 25 years of imprisonment. Considering that these tribunals deal with serious crimes like genocide, the recognition of early release for offenders is significant, as it reinforces the view that every person is capable of becoming a better person with time and that the gravity of an offence should not eliminate the possibility of release.
The African Commission on Human and Peoples' Rights has recommended the use of conditional or early release, parole and remission of sentences to improve the rehabilitation of offenders.Footnote 39 The European Committee for the Prevention of Torture has condemned irreducible life sentences and held that “it is inhuman to imprison a person for life without any realistic hope of release”.Footnote 40 The Council of Europe has adopted a number of resolutions concerning life and long term imprisonment that underline the desirability of the availability of early release. For example, the 2003 recommendation on the management by prison administrations of life sentence and other long-term prisoners contains recommendations on how, among other things, to “increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law abiding life following their release”.Footnote 41 The 2003 recommendation on conditional release (parole) states that the law should provide for conditional release for all prisoners, including those serving life sentences.Footnote 42 Similarly, the 2006 European Prison Rules (European Rules) emphasize that the regime for all sentenced prisoners should be “designed to enable them to lead a responsible and crime-free life”.Footnote 43 Rule 103.2 of the European Rules further requires that mechanisms be put in place to prepare prisoners for release. This position is also found in the 1999 recommendation concerning prison overcrowdingFootnote 44 and the 2003 recommendation on conditional release.Footnote 45
The European Court of Human Rights (ECtHR) has held that there must be “a real and tangible prospect” of release for prisoners sentenced to indeterminate sentences such as life imprisonment. Otherwise, such a sentence would amount to cruel, inhuman and degrading punishment.Footnote 46
In Vinter and Others v United Kingdom (Vinter),Footnote 47 the court held that, if it is to comply with the prohibition of cruel and inhuman punishment, life imprisonment must be accompanied by a possibility for release and regular reviews. The court gave three reasons for finding whole life sentences inconsistent with the ECHR. The first reason was that, since detention can only be justifiable if it is based on a penological ground (retribution, deterrence, rehabilitation or incapacitation), it is important to evaluate whether a life sentence remains justifiable after a number of years have been served. This is because, with time, the balance between the justifications for a life sentence may shift and create the possibility that further detention is unnecessary.Footnote 48 The second reason was that a whole life sentence means that a prisoner will never atone for his offence: “whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes … a poor guarantee of just and proportionate punishment”.Footnote 49
The last reason given by the court in Vinter for rejecting irreducible life sentences was that it would be inconsistent with the right to human dignity to deny an offender a chance of release. The court held that respect for human dignity requires a rehabilitation oriented approach to punishment and imposes a duty on “the prison authorities to work towards the rehabilitation of an offender and that rehabilitation [is] constitutionally required in any community that establishe[s] human dignity as its centrepiece”.Footnote 50 The court emphasized that these principles “appl[y] to all life prisoners, whatever the nature of their crimes”.Footnote 51 It also held that compassionate release only for those who are terminally ill or close to death is not a sufficient prospect of release. This is because it fails to provide any hope of release for life prisoners “should they seek to demonstrate that their continued imprisonment was no longer justified on legitimate penological grounds and thus contrary to article 3 of the Convention”.Footnote 52 The court stressed that a life sentence must be reducible at the time of its imposition so that a prisoner is able to “work towards his rehabilitation”:
“[I]n cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.”Footnote 53
This means that rehabilitation is linked to the prospect of release and that prisoners serving life sentences must be provided with rehabilitative programmes through which they may improve themselves in preparation for social reintegration.Footnote 54 The emphasis on rehabilitation entails that prisoners must, as of right, be offered rehabilitative programmes while in prison to prepare them for reintegration into society. In Kafkaris v Cyprus (Kafkaris),Footnote 55 Tulkens, Cabral Barreto, Fura-Sandström and Spielmann JJ of the ECtHR held that, in the light of human rights, sentences must not only have a punitive purpose but must also encourage the reform and social reintegration of those convicted.Footnote 56 They considered that reintegration into society is a legitimate requirement of sentencing and that “questions may be asked as to whether a term of imprisonment that jeopardizes that aim is not in itself capable of constituting inhuman and degrading treatment”.Footnote 57
The fourth restriction regarding life imprisonment in international law is that the prospect of release must be accompanied by procedural safeguards. This requires that an adequate release mechanism must be in place. A decision on continued detention affects the liberty of an offender and thus requires that the review mechanism must comply with international safeguards. The imposition of life imprisonment is usually based on the dangerousness of an offender. Dangerousness is susceptible to changeFootnote 58 and it can hardly be argued that all lifers will always be a danger to society.Footnote 59 Since the length of imprisonment can itself amount to inhuman and degrading treatment,Footnote 60 even in countries where there is no distinction between “penal” (non-parole period) and “risk” (parole period) elements of a life sentence, there is a need to consider release:
“The question whether conditional release should be granted in any individual case must … principally depend on an assessment of whether the term of imprisonment already served satisfies the necessary element of punishment for the particular offence and, if so, whether the life prisoner poses a continuing danger to society … [T]he determination of both questions should in principle be in the hands of an independent body, following procedures containing the necessary judicial safeguards, and not of an executive authority.”Footnote 61
In fact, the need for release does not simply raise the question of whether a lifer can live a law abiding life upon release, but whether it is abusive to detain him or her further.Footnote 62 Once the tariff of a life sentence is served, the punishment aspect of the sentence is satisfied and the only justification for continued detention becomes the offender's dangerousness.Footnote 63 Continued detention must therefore be judicially reviewed at regular intervals to assess whether the prisoner still poses a danger to society.Footnote 64 Although there is no fixed period for the interval between sentence reviews, the law should be flexible enough to allow a prisoner serving life imprisonment to seek release earlier than the stipulated period on humanitarian or other grounds.Footnote 65
International jurisprudence is to the effect that, once the punitive element of a sentence has been served, continued detention remains lawful only as long as the rationale for its initial imposition exists.Footnote 66 Prolonged detention will become arbitrary if the offender no longer poses a dangerous risk to society.Footnote 67 If dangerousness is the basis for continued detention, it is paramount that the criteria used to determine whether the offender is still dangerous are sound. Ideally, professionals should carry out the review. As Stokes has observed, “an uncritical appraisal of how risk and dangerousness are precisely defined and assessed can … open the door to indefinite and arbitrary detention”.Footnote 68 A change in circumstances, such as advancement in age or sickness, that reduce the dangerousness of an offender, can therefore be grounds for early release.Footnote 69 Continued imprisonment of such individuals is based solely on retribution and therefore violates human dignity.Footnote 70
With regard to the body responsible for considering release, the Human Rights Committee held in Rameka et al v New Zealand that the possibility of release must be considered by an independent judicial body.Footnote 71 Similarly, in Stafford v United Kingdom, the ECtHR stated that, since an offender who has served the tariff period has satisfied the punishment element of his sentence, his continued detention requires a determination that there is a new lawful basis for his further detention. The court held that such an inquiry must comply with the requirements of article 5(4) of the ECHR.Footnote 72 A judicial body (an independent body with the independent character of a court), which is impartial and meets standards of due process, must therefore consider the prisoner for release.Footnote 73 In other words, release procedures must not be at the mercy of the executive alone and must be procedurally fair.Footnote 74 Further, the body must actually have the power to order the release of the offender concerned and comply with procedural safeguards for the applicant;Footnote 75 an advisory panel will not suffice.Footnote 76 In Kafkaris, the dissenting judgment found that, on the facts of the case, the possibility of pardon did not offer “a real and tangible prospect” of release.Footnote 77 This was because:
“[T]here is no obligation to inform a prisoner of the Attorney General's opinion on his application for early release or for the President to give reasons for refusing such an application. Nor is this the President's practice. In addition, there is no published procedure or criteria governing the operation of these provisions. Consequently, a life prisoner is not aware of the criteria applied or of the reasons for the refusal of his application. Lastly, a refusal to order a prisoner's early release is not amenable to judicial review. This lack of a fair, consistent and transparent procedure compounds the anguish and distress which are intrinsic in a life sentence and which, in the applicant's case, have been further aggravated by the uncertainty surrounding the practice relating to life imprisonment at the time.”Footnote 78
This passage accurately reflects the pardon process in most countries. Due to the secrecy surrounding the granting of pardons that results in most prisoners not knowing on which factors pardons are based, the possibility of pardon is not a sufficient guarantee of release.Footnote 79
In summary, international law recognizes that life imprisonment is a heavy penalty that should be used sparingly subject to certain limitations. These include that life sentences must be proportional to the offence, that there must be a realistic possibility of release and that the law must provide a review mechanism that guarantees due process. Without the possibility of release, life imprisonment amounts to a cruel, inhuman and degrading punishment. Further, since life imprisonment is used for community protection, the dangerousness of an offender is a key factor in its imposition. As such, there is a need to consider from time to time whether the continued detention of a prisoner remains lawful in that he still poses a danger to society. If a prisoner ceases to be dangerous, he may be released.
The following section examines the nature of life imprisonment in Malawi with respect to these restrictions. A major issue with life imprisonment in general is whether it means a whole life sentence (imprisonment for the rest of an offender's life without the possibility of parole) or imprisonment for a stipulated period after which an offender is eligible for parole. It is therefore apposite to begin with a discussion of the meaning of life imprisonment in Malawi.
THE NATURE OF LIFE IMPRISONMENT IN MALAWI
The meaning of life imprisonment
Strictly speaking, there is no statutory definition of life imprisonment in Malawi. However, there are a number of meanings that may be ascribed to it. For instance, section 111 of the Prisons Act requires that, every four years, a report must be prepared for prisoners serving a life sentence or a sentence exceeding seven years. This may provide authority for the proposition that a life sentence must be reviewed every four years and so carries a tariff of four years.Footnote 80 However, this interpretation may be counter productive. For example, it may be inconsistent with the principle of proportionality, which entails that sentences imposed for more serious offences should be more severe than those imposed for lesser offences. Four years is a very low threshold for life imprisonment prescribed for serious offences, in light of other sentences prescribed for other offences. This problem is magnified by the fact that release under section 111 may be unconditional since it is subject to the prerogative of mercy.Footnote 81 In practice, life prisoners are not considered for release every four years.
Judicial comment on the meaning of life imprisonment points to both a determinate and whole life sentence. The former is only to be found in the decisions of Mwaungulu J who has expressed the view that a life sentence is 35 years.Footnote 82 He arrives at this conclusion by explaining that “since legally imprisonment is generally permissible after the age of 19Footnote 83 and life expectancy is 55 years, a life sentence is 35 years”, being the difference between life expectancy (as it then was) and the age for eligibility for imprisonment.Footnote 84 Mwaungulu J has used this definition of life imprisonment as 35 years as an additional criterion for determining if a sentence is cruel, inhuman and degrading, which in turn feeds into the determination of whether a sentence is manifestly excessive.Footnote 85 This suggests that a sentence may be rendered unconstitutional on the sole basis of its length depending on how close it is to a 35 year sentence.
Defining life imprisonment in terms of life expectancy may also have its own complications. For instance, with life expectancy in Malawi in 2015 of 57 years for men and 60 years for women,Footnote 86 a life sentence for a 20 year old male offender would mean 37 years; while for a 50 year old offender it would be seven years, or slightly longer for female offenders. The meaning of a life sentence would therefore vary depending on the age and gender of an offender. This raises issues regarding the right to equality, in that life imprisonment would mean different things depending on not only the age at which an offender is sentenced, but also whether an offender is male or female.Footnote 87 In addition, should life expectancy decrease in future, the meaning of life imprisonment would also have to change. This would mean that a decrease in life expectancy may at some point imply that life imprisonment could be as low as 10 or 15 years. Likewise, an increase in life expectancy would entail a redefinition of a life sentence. Furthermore, sentences that are close to a “life sentence” would be rendered unlawful and even unconstitutional since, as maxima, they must be invoked only in the worst instance of an offence. Ultimately, it would be unlawful to sentence an offender who has exceeded life expectancy to imprisonment, let alone life imprisonment, as it would amount to cruel, inhuman and degrading punishment or a manifestly excessive sentence. This outcome would be inconsistent with the principle of legality that requires that the law must clearly declare a punishment in advance.Footnote 88 This means that the meaning of life imprisonment must be prescribed by law and not in terms of life expectancy. The certainty of life imprisonment could be undermined if it were dependent on a variable factor like life expectancy. Ultimately, the definition provided by Mwangulu J is inherently problematic as it presupposes that an offender will be imprisoned until he dies, as it is based on life expectancy. In other words, it is a whole life sentence.
Case law indicates that the predominant view in Malawi is that life imprisonment means a whole life sentence. In R v Cheuka and Others,Footnote 89 the accused was sentenced to an effective term of 12 years for manslaughter, which carries a maximum sentence of life imprisonment.Footnote 90 Deliberately refraining from imposing the maximum sentence, the court said that the offender's “life imprisonment is regarded as longer than the number of years of imprisonment a court may impose”.Footnote 91 In other words, the indeterminate nature of a whole life sentence renders it a disproportionate sentence since a court may never know how long an offender has to live. The understanding of life imprisonment as a whole life sentence is also evident in cases such as R v Masula and Others.Footnote 92 In that case, Chombo J held that, since the accused were unlikely to be reformed, it was necessary to protect the public by locking them away for the rest of their lives.
The view that a life sentence is a whole life sentence is perhaps most clearly seen in Moyo v Attorney General Footnote 93 where the High Court, sitting as a constitutional court, held that the detention of child offenders at the pleasure of the president is not the same as life imprisonment. In its unanimous judgment, the court reasoned that detention at the president's pleasure “presupposes that there will be constant reviews of the juvenile's conduct … The aim is always that a child … should only be recommended for release if he has shown [remorse] and if he has been adequately rehabilitated to the extent that he is no longer a danger to the society. Being so held at the pleasure of the president should not therefore be construed as life imprisonment.”Footnote 94
This passage implies that what distinguishes detention at the president's pleasure from life imprisonment is that, in the latter case, an offender will spend the rest of his life in prison, regardless of whether he ceases to be a danger to society. In addition, the court excludes the need for review and the role of rehabilitation in life sentences.
The 2003 Prisons Bill proposes a new definition of life imprisonment. Under clause 53(1)(b) of the bill, a life prisoner will be eligible for parole after serving 12 years. Further, clause 56 creates a possibility that life prisoners may be released both conditionally and unconditionally before the tariff period has lapsed if “the prison system is so overcrowded that the safety, human dignity or physical care of prisoners is being affected materially”. In keeping with the spirit of section 111 of the Prisons Act, order 141(2) of the 2003 Draft Standing Orders provides that, after a lifer has served four years of his or her sentence, “a copy of the record and an assessment of their characters shall be sent to the Chief Commissioner [of prisons] who may make special recommendations”. However, it is not clear what the commissioner's recommendations may be upon receipt of the review report under order 141(2). It is likely that these recommendations will almost always relate to the prisoner's progress during the sentence depending on his needs to ensure rehabilitation. Indeed, unlike the Prisons Act, the Prisons Bill does not hint at the possible release of prisoners serving life sentences as a result of this report.
It is admirable that the Prisons Bill makes a deliberate departure from whole life sentences by prescribing a 12 year tariff for life imprisonment. This will have significant consequences for the nature of life imprisonment in Malawi. The possibility of release for prisoners serving life sentences indicates a less retributive approach to punishment and is consistent with international standards for prisoners serving lengthy sentences. However, a potential problem with the bill may spring from the fact that it may lead to life prisoners serving relatively short terms. This is because the 12 year tariff, though higher than the four year tariff in section 111 of the Prisons Act, is relatively low and there is a possibility that prisoners sentenced to life imprisonment may be released earlier under clause 56 of the bill. For one thing, the maximum fixed sentence under the Penal Code is 21 years.Footnote 95 For another, the maximum tariff for fixed sentences under clause 53(1)(a) of the bill is one third or 12 years of a determinate sentence in accordance with section 53(1)(a) of the bill. This means that the 12 year tariff will apply where a sentence exceeds 36 years, that is, where one third of the sentence is more than 12 years. Read in conjunction with the 12 year tariff for life sentences, the bill effectively equates life imprisonment to 36 years. Although 36 years is a lengthy sentence and that, given the sentencing practices prevailing at the moment it is unlikely to be imposed, it can be said that the proposed tariff for life imprisonment upsets the penal scheme in Malawi. The only way around the tariff would be the imposition of consecutive sentences. It is trite, however, that, in sentencing an offender, a court must not take into account the possibility of release.Footnote 96
Restrictions on life sentences
Malawian law places a number of restrictions on life imprisonment. First, section 42(2)(g)(i) of the Constitution prohibits the imposition on children of life imprisonment without the possibility of release.Footnote 97 The fact that the law expressly states that children may not be sentenced to life imprisonment without the possibility of release may insinuate that adult offenders may be sentenced to whole life sentences. However, the view that life imprisonment means that an offender will spend the rest of his life in prison, regardless of whether he continues to pose a danger to society, is inconsistent with the regular review of long-term prisoners required under section 111 of the Prisons Act. It is also at odds with the right to dignity, the prohibition of cruel and inhuman punishment and international standards. International human rights law dictates that, while life imprisonment per se is consistent with human rights, whole life sentences are inimical to the right to liberty and dignity, and the prohibition against cruel and degrading punishment.
The second restriction on life imprisonment relates to the category of offences which are punishable with life imprisonment. Malawi has over 40 offences that attract life imprisonment. The list includes: genocide (where the offence consists of killing); murder; manslaughter; concealment of treason; robbery; forgery of wills, judicial records and bank notes; rioting after proclamation and related offences such as demolishing buildings; and rescuing or attempting to rescue from lawful custody a person sentenced to death or imprisonment for life or charged with an offence punishable with death or life.Footnote 98 While some of these offences, like murder and manslaughter, fall within the category of serious offences as required by international law, many of them do not fit into this category. These include forgery of wills or documents of title to land, judicial records, powers of attorney, bank notes, currency notes, bills of exchange or promissory notes; rioting after proclamation and related offences; stupefying in order to commit a felony or misdemeanour; causing or committing an act intended to cause grievous harm or prevent arrest; theft by a public servant; destroying or damaging a river bank or wall, navigation works or bridge; counterfeiting coins and making preparations for coining; illegal possession of Indian hemp; and rescuing or attempting to rescue from lawful custody a person sentenced to death or imprisonment for life or charged with an offence punishable with death or life. The application of life sentences to these offences is disproportionate and amounts to cruel and inhuman punishment.Footnote 99 In practice, courts exercise considerable restraint in imposing life sentences, limiting their imposition to manslaughter and, since 2007, murder cases.Footnote 100 The majority of life sentences being served today result from the automatic mass commutation of death sentences to life since 1994.Footnote 101
With respect to early release, offenders serving life sentences in Malawi may be released either by the minister responsible for prisons or by the president.Footnote 102 The minister may release a lifer on licence “at any time he thinks fit” and “subject to such conditions as may be specified in the licence” and which “the Minister may at any time vary, modify or cancel”.Footnote 103 He may recall the prisoner “at any time” “but without prejudice to the power of the Minister to release him on licence again”.Footnote 104 A glaring problem with release on licence is that it is too deferential to the minister, in that it gives him unbridled discretion as to the circumstances in which licences may be granted or revoked. Indeed, the Prisons Act does not enumerate the circumstances in which an offender may be released on licence, recalled or allowed to be released again. It is even more unfortunate that the licence procedure has fallen into disuse. Therefore the only hope of release for lifers lies with the president.
The president may decide to exercise the prerogative of mercy in favour of an offender sentenced to life imprisonment under section 89(2) of the Constitution. The Prisons Act provides three instances in which a lifer may be released by the president. First, section 108 of the act provides that the commissioner of prisons “may recommend to the President that remission should be granted to a prisoner by reason of the meritorious conduct or mental or physical condition of such prisoner”.
Secondly, lifers may also benefit from the prerogative of mercy under regulation 35 of the Prison Regulations, which states that a medical officer must submit a report to the officer in charge where he is of the view that: “(a) the life of a prisoner is likely to be endangered by his further confinement in prison; or (b) a sick prisoner is unlikely to survive his sentence; or (c) a prisoner is totally and permanently unfit to undergo prison discipline; or (d) the mental health of a prisoner appears likely to become impaired by his further confinement in prison”. The regulation further requires that the officer in charge must “immediately” forward the report to the commissioner for transmission to the minister.Footnote 105 It is quite clear from the circumstances listed in regulation 35(a) to (d) that the appropriate remedy in each case would be the release of the offender concerned. The continued confinement of such prisoners would amount to cruel, inhuman and degrading punishment. Since the minister is not empowered to release a prisoner except on licence,Footnote 106 he must arrange for such cases to be considered for mercy.
The third way for bringing a case to the president's attention relates to the review of sentences imposed on “long-term prisoners”. A long-term prisoner is “any prisoner serving a total sentence of imprisonment of seven years or more”.Footnote 107 Section 111(1) of the Prisons Act requires that, every four years, the commissioner “must” send a report to the minister regarding every prisoner serving a life sentence or imprisonment of more seven years. The minister may also request such reports at any time.Footnote 108 However, the law does not state the minister's powers once reports are received. Section 111(3) of the Prisons Act suggests that the power to release long-term prisoners can only be exercised by the president. This is because section 111(3) states that, where the minister requests a report to be supplied at any time or at intervals more frequent than stipulated in section 111(1) of the act (that is, an interval of less than four years), “the Commissioner shall arrange for compliance with any instructions as to pardon, respite, reprieve, commutation or remission of the sentence by the President”. It is, therefore, reasonable to conclude that reports received under section 111(1) must be sent to the president so that a prisoner may be considered for mercy. Section 111(1) should be read in the context of section 111(3), with the result that reports received under the former must be forwarded to the president accordingly. It can, therefore, be said that sentences imposed on long-term prisoners must be reviewed every four years. This conclusion is also supported by the mandatory nature of section 111(1): a report must be sent to the minister every four years.
It is important to mention that the Prisons Act does not restrict the powers of the president under section 89(2) of the Constitution. As such, he may decide to exercise mercy on lifers in situations other than those prescribed in the act. The Constitution only requires that the prerogative of mercy must be exercised in consultation with the Advisory Committee on the Granting of Pardon (Pardon Committee),Footnote 109 which comprises the president as chairperson, the attorney general and such number of cabinet ministers as the president determines.Footnote 110 The Pardon Committee determines its own procedures, while the president, as chairperson, presides over the meetings and determines when the committee is to meet.Footnote 111
The 2005 Amended Guidelines for the Pardon Committee (Pardon Committee Guidelines) set down three general rules for eligibility. First, a pardon “shall generally be reserved for cases of miscarriage of justice after the matter has been thoroughly exhausted through the judicial system”.Footnote 112 Secondly, prisoners must have served at least half of their sentence to be eligible for presidential remission or a sentence reduction.Footnote 113 Thirdly, serious offenders convicted of “murder, violent offences such as robbery and burglary; serious sexual offences such as rape and defilement; and grand corruption” should not benefit from the prerogative of mercy.Footnote 114 While the guidelines do not state the circumstances in which the first and second rules may be disregarded, they state that the third rule may be disregarded if the prisoner is terminally illFootnote 115 or if “for the sake of promoting peace, tolerance and harmony in society”, a victim or his close relative petitions the president for mercy.Footnote 116
It is clear from the eligibility criteria that the Pardon Committee Guidelines do not specifically cover life imprisonment since, for obvious reasons, lifers are excluded from the general principle that prisoners must have served at least half of their sentence to be eligible for mercy. This situation is inconsistent with regulation 35 of the Prisons Regulations and sections 108 and 111 of the Prisons Act. It is worth noting that regulation 35, which provides for unfit and terminally ill prisoners, is couched in general terms and is not contingent on the severity of the sentence or the seriousness of the offence. Therefore, the law clearly envisages the pardoning or early release of a prisoner where his or her health has deteriorated, regardless of the sentence he is serving.
It is also worrisome that the opportunity for serious offenders to be released is very narrow. Indeed, only offenders convicted of relatively minor offences benefit from mercy; it is only in rare cases that serious offenders are pardoned, often amid controversy.Footnote 117 The exclusion of serious offenders from general consideration for release also has an adverse effect on prisoners serving life sentences, as they are likely to have been convicted for serious offences. The exclusion of serious offenders from the general scheme of the prerogative of mercy means that they will not be eligible for early release unless they are terminally ill or a victim petitions the president for mercy. These are very restrictive conditions that indicate an overly retributive approach in the pardon process. In any case, as noted above, the release of terminally ill prisoners is not an adequate form of release for lifers.Footnote 118 Moreover, an advisory panel is not enough, because it concentrates power in the president alone. To make matters worse, despite provision for terminally ill serious offenders in clause 7 of the Pardon Committee Guidelines, very few terminally ill offenders are pardoned in practice.Footnote 119 As explained above, terminally ill prisoners are likely to have been brought to the president's attention through regulation 35 of the Prison Regulations. As such, they are prisoners who are unlikely to survive the full duration of their sentence or are totally unfit to undergo it. The continued detention of such prisoners when they no longer pose a dangerous threat to society is based solely on retribution and constitutes a violation of the right to human dignity and the prohibition of cruel and inhuman punishment.
A further shortfall in the pardon process is that the Pardon Committee Guidelines do not set out any procedural requirements for the pardon process. They therefore fail to provide procedural safeguards in the pardon process. For example, an offender has no right to be heard before the committee either orally or through written submissions. It is therefore unsurprising that the Pardon Committee is under no obligation to inform a prisoner of the outcome of the proceedings or reasons for withholding mercy. Further, there is no opportunity for lifers to present their submissions to the committee and there is no obligation on the committee or indeed the president to inform the prisoners concerned of the reasons why they have not been recommended for or granted release. As held by the minority in Kafkaris, the absence of clear procedural rules mitigates any certainty as to whether a lifer will be considered for release and the prisoner's legitimate expectation that his possible release will be considered once the tariff has been served.Footnote 120
Another problem with the pardon process is that the independence of the Pardon Committee is undermined by the fact that all its members are political appointees of the presidentFootnote 121 who also determines the number of ministers to join the committee. Having the president as chairperson brings the committee under his or her control and makes it politically biased. This is contrary to section 89(2)(a) of the Constitution which envisions a two stage process: consideration for mercy first by the Pardon Committee and then by the president. This can only be achieved if the Committee stands alone and is independent of the president. Indeed, it is difficult to see how the “consultation” required by section 89(2) can be realized when the president is the chairperson of the very committee upon whose recommendation he is subsequently required to act. The absurdity of this arrangement is manifested where, as is professedly the practice, the minister writes a memorandum to the president supposedly seeking his approval of the early release of prisoners following recommendation by the committee that was in fact chaired by the president himself.Footnote 122 The constitutionality of the Pardon Committee Act is also brought into question on the basis that Parliament has effectively delegated its powers under section 89(2)(a) to the president. The Constitution requires that Parliament determines the “composition and formation” of the committee. However, the act apparently delegates this duty to the president.
In view of this analysis, it can be concluded that, although the pardon process has the potential to be an effective mechanism for release, it does not fully reflect international and constitutional standards. It does not provide a real and tangible prospect of release. The inadequate release mechanism also greatly undermines the constitutional injunction in section 42(2)(g), which prohibits the sentencing of children to whole life sentences. Thankfully, the 2010 Child Care, Protection and Justice Act (CCPJA)Footnote 123 now prohibits the imprisonment of a person below the age of 18 years for any offence.Footnote 124
Ultimately, the early release system in Malawi is an insufficient form of release in view of international standards that require that the law must provide for a real prospect of release for prisoners serving life sentences. The pardon process fails to offer a real prospect of release to lifers. As serious offenders, most lifers may only benefit if they become terminally ill or through victim petitions. The result is that life imprisonment in Malawi amounts to a violation of the right to life and dignity, and of the prohibition of cruel and inhuman punishment. Indeed, it is parole that saves prisoners under indeterminate or life sentences from cruel, inhuman and degrading treatment or punishment.Footnote 125 The justification for the detention of a prisoner must exist throughout the entire period of detention. In this regard, life prisoners cannot be justifiably detained if they no longer pose a danger to society. The right to challenge the lawfulness of detention under section 42(1)(f) of the Constitution can, therefore, be interpreted to require that prisoners should be given an opportunity to challenge their continued detention before an independent court and to be released if their detention is unlawful. The absence of an effective mechanism for an independent body to review life sentences breaches the right to liberty. It might be argued that the continued detention of offenders would be an acceptable limitation under section 44 of the Constitution. It must be recalled, however, that, in the absence of a legal framework that provides for an assessment as to dangerousness, it would be impossible to inquire into the justifiability of the limitation on the rights of an offender. After all, it is the existence of such a mechanism that matters. The justification for continued detention would therefore lie in the fact that, after assessment, an offender is deemed dangerous and therefore should remain imprisoned. Without a clear definition of life imprisonment, a legal framework for the applicable procedure and stipulation as to the regularity of the reviews, the point at which such an assessment must be made remains unclear. A one off decision at the time of sentencing is insufficient; there is need to assess periodically whether continued detention is “necessary for community protection”.
CONCLUSION
Life imprisonment in Malawi largely falls short of constitutional and international standards. While there are some instances in which it reflects international norms, such as the prohibition of whole life sentences on children, there are gaps between international standards and the situation in Malawi. The scope of crimes punishable with life is too wide to be consistent with international standards. The release system is inadequate and fails to provide a realistic possibility of release for offenders serving life sentences. This renders life imprisonment in Malawi a cruel, inhuman and degrading punishment. The passing of the Prisons Bill may mitigate the harshness of life imprisonment in Malawi. One can only hope that the bill, which was rejected by Parliament and is now back at the Malawi Law Commission, will soon become law.
Valid questions may be asked about whether or not parole is the answer to the challenges posed by life imprisonment. While whole life sentences mean that a prisoner is never “post-tariff”,Footnote 126 such that there is no purpose in reviewing his dangerousness, life imprisonment with the possibility of parole simply asks for a real chance for reconsideration, although the possibility remains that the sentence will effectively last the whole of an offender's life. Accordingly, as Levy J remarked in S v Tjijo, “parole is no answer” to the problem of life imprisonment:
“The concept of life imprisonment destroys human dignity, reducing a prisoner to a number behind the walls of a gaol waiting only for death to set him free. The fact that he may be released on parole is no answer. In the first place for a judicial officer to impose any sentence with parole in mind, is an abdication by such officer of his function and duty and to transfer his duty to some administrator probably not as well equipped as he may be to make judicial decisions. It also puts into the hands of the executive where the sentence is life imprisonment, the power to detain a person for the remainder of his life irrespective of the fact that the person may well be reformed and fit to take his place in society. Furthermore, even though he or she may be out of gaol on parole such person is conscious of his life sentence and conscious of the fact that his or her debt to society can never be paid. Life imprisonment makes a mockery of the reformative end of punishment.”Footnote 127
