The retention and use of the death penalty, especially the mandatory death penalty, continues to be an issue of controversy and concern in Africa and elsewhere. Accordingly, African states are slowly but increasingly moving away from the death penalty, with many of them abolishing it either de facto or de jure, or limiting its use, with some finding its mandatory application to be unlawful. This article considers the recent Supreme Court of Kenya decision that declared the mandatory nature of the death penalty as provided for under the country's Penal Code to be unconstitutional. However, it argues that, while declaring the mandatory death penalty to be unconstitutional is commendable and a promising step on the path towards the abolition of the death penalty, the death penalty remains available as a punishment, with serious human rights implications if procedural safeguards are not followed.

In June 2016, the Zimbabwe Constitutional Court held that life imprisonment without the possibility of parole is unconstitutional, finding that it constituted cruel and degrading punishment and a violation of the right to equal protection under the country's new constitution. The court widely cited international and foreign law to assess global trends on life imprisonment, especially the jurisprudence of the European Court of Human Rights. The decision illustrates the benefits for human rights advocates of citing international and foreign law in their pleadings, and is an example of “sharing” constitutional jurisprudence across borders and the diffusion of constitutional norms.

The abolition of the mandatory death penalty for murder in Malawi has attracted attention to life imprisonment as a possible punishment for capital crimes. This article considers the human rights challenges that life imprisonment in Malawi raises in view of the Bill of Rights and Malawi's international obligations under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and other international and regional human rights instruments that prescribe various standards for punishment. The article argues that, in the absence of a clear statutory definition of life imprisonment and an inadequate release system, the application of life imprisonment in Malawi is inconsistent with the Bill of Rights and international standards on punishment.