1 Kafantayeni v Attorney General constitutional case no 25 of 2005.

2 Constitution, secs 7, 8 and 9 provide separate duties and functions for the executive, legislature and judiciary respectively.

3 Id, sec 8.

4 Id, sec 7.

5 Id, sec 9.

6 Id, sec 13(m). Although this principle is not justiciable, courts are enjoined to have regard to it, not only when applying and interpreting the Constitution and legislation but also when reviewing decisions by the executive. See Masangano v Attorney General constitutional case no 15 of 2007 at 34–35 and 44–45.

7 Constitution, sec 19.

8 Id, sec 19(4).

9 Id, sec 19(3).

10 Ibid.

11 Id, sec 42(2)(g)(i).

12 Id, sec 42(2)(g)(ii).

13 Id, sec 42.

14 Id, sec 42(1)(b).

15 Id, sec 42(1)(e).

16 Id, sec 42(1)(f).

17 Id, sec 20(1).

18 Ibid.

19 Masangano, above at note 6 at 37.

20 In re Chizombwe [1991] 14 MLR 482 (HC) 486.

21 Constitution, sec 42(2)(a).

22 Id, sec 42(2)(b).

23 Id, sec 42(2)(e).

24 Id, sec 42(1)(e) and (f).

25 Id, sec 42(2)(g).

26 Id, sec 42(2)(g)(v).

27 Id, sec 42(2)(g)(ii).

28 Id, sec 211(3).

29 Id, sec 211(1).

30 Convention on the Rights of the Child, art 37a; rule 2 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) [1985] UNGA 30; A/RES/40/33 (29 November 1985).

31 See, for instance, decisions by the European Court of Human Rights (ECtHR) in Weeks v United Kingdom (1988) 10 EHRR 293; Hussain v United Kingdom 22 EHRR 1; and V and T v United Kingdom 30 EHRR 121.

32 UN Crime Prevention and Criminal Justice Branch “Life imprisonment”, para 14.

33 “Safeguards guaranteeing protection of the rights of those facing the death penalty” ECOSOC res E/RES/1984/50 (1984).

34 van Zyl Smit, D and Snacken, S Principles of European Prison Law and Policy: Penology and Human Rights (2009, Oxford University Press)Google Scholar at 8 and 329–30, citing the decision of the German Federal Constitutional Court in BVerfG-1 BvR 14/76, 21 June 1977 (BVerfGE 45 at 187 and 238).

35 Council of Europe Committee of Ministers res (76) 2 on the treatment of long-term prisoners (1976), para 10 (now covered by rec (2003) 23 on the management of life-sentence and other long-term prisoners).

36 Ibid.

37 Id, para 11.

38 See Council of Europe Committee of Ministers rec (2003) 22 to member states on conditional release (parole), para 4a. See also European Committee for the Prevention of Torture “11th general report” CPT/Inf (2001) at 16, para 33; European Committee for the Prevention of Torture “Hungary visit” CPT/Inf (2007) at 24, para 33.

39 See African Commission on Human and Peoples’ Rights “Prisons in Cameroon: Report of the special rapporteur on prisons and conditions of detention in Africa (report to the government of the Republic of Cameroon on the visit of the special rapporteur on prisons and Conditions of detention in Africa from 2–15 September 2002)” ACHPR/37/OS/11/437.

40 European Committee for the Prevention of Torture “Report on the visit to Bulgaria from 4 to 10 May 2012” CPT/Inf (2012) 4 December 2012, para 32; European Committee for the Prevention of Torture “Report on the visit to Switzerland from 10 to 20 October 2011” CPT/Inf (2012) at 26.

41 Rec (2003) 23 on the management of life-sentence, above at note 35, para 2.

42 Rec (2003) 22 on conditional release, above at note 38, para 4a. See also res (76) 2 on the treatment of long-term prisoners, above at note 35.

43 European Rules, rule 102.1.

44 Rec (99) 22 concerning prison overcrowding and prison population inflation (1999).

45 Above at note 38.

46 Kafkaris v Cyprus [2008] ECtHR 21906/04 (12 February 2008), para 6 of the joint dissenting judgment of Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens.

47 Vinter and Others v United Kingdom appln nos 66069/09, 3896/10 and 130/10, merits 9 July 2013.

48 Id, para 111.

49 Id, para 112.

50 Id, para 113.

51 Ibid.

52 Id, para 129. This conclusion reflects the position of the 16 January 2010 decision of the German Federal Constitutional Court (cited in D van Zyl Smit “Outlawing irreducible life sentences: Europe on the brink?” (2010) 23 Federal Sentencing Reporter 29 at 54–55), where the court found that the right to human dignity would be infringed where “only severe infirmity or life threatening illness of a prisoner could lead to a life sentence not being carried out further”. It thus held that the constitutional power of the Turkish president to release offenders “on grounds of chronic illness, disability, or old age” did “not open even  a vague prospect … of a life in freedom that makes the implementation of the life sentence bearable in terms of the dignity of the person in any way that would satisfy the German constitutional order: At best, it lets the offender hope to die in freedom.”

53 Vinter, para 122. Before the Vinter judgment, the ECtHR had previously hinted that an irreducible life sentence might be incompatible with art 3. See Einhorn v France, para 27: “the Court does not rule out the possibility that the imposition of an irreducible life sentence may raise an issue under article 3 of the Convention”; Kafkaris, para 98: “It is enough for the purposes of article 3 that a life sentence is de jure or de facto reducible”.

54 D van Zyl Smit, P Weatherby and S Creighton “Whole life sentences and the tide of European human rights jurisprudence: What is to be done?” (2014) 14 Human Rights Law Review 59 at 65–71.

55 Above at note 46.

56 Joint partly dissenting opinion of Judges Tulkens, Cabral Barreto, Fura-Sandström and Spielmann in id, para 5.

57 Id, para 98.

58 Thynne, Wilson and Gunnel v United Kingdom (1991) 13 EHRR 666, para 76.

59 Explanatory memorandum to rec (2003) 22 on conditional release, above at note 38, para 4.

60 See para 4 of the dissenting opinion of Judge Fura-Sandström in Leger v France 11 April 2006 (appln no 19324/02).

61 Kafkaris, concurring opinion of Judge Bratza. Cypriot law did not distinguish between “penal” and “risk” elements of a life sentence.

62 van Zyl Smit, D “Life imprisonment as the ultimate penalty in international law: A human rights perspective” (1999) 9 Criminal Law Forum 5 at 34Google Scholar.

63 Stafford v United Kingdom (2002) 35 EHRR 32, paras 80 and 81.

64 Hussain v United Kingdom (1996) 22 EHRR 1; Singh v United Kingdom no 23389/94 (1996). In Hirst v United Kingdom appln no 40787/98 it was held that a two year interval is too long.

65 Oldham v United Kingdom no 36273/97 (2001), ECHR 2000-X, paras 28–37.

66 Van Droogenbroeck v Belgium (1982) 4 EHRR 60, para 47.

67 Kafkaris, concurring opinion of Judge Bratza.

68 Stokes, R “A fate worse than death? The problems with life imprisonment as an alternative to the death penalty” in Yorke, J (ed) Against the Death Penalty: International Initiatives and Implications (2008, Ashgate) 281 at 293Google Scholar.

69 Leger v France 11 April 2006 (appln no 19324/02) dissenting opinion of Judge Fura-Sandström, para 15. A detailed consideration of how dangerousness should be assessed is beyond the scope of this article. It is sufficient to note that most scholars are agreed that dangerousness is very difficult to assess. See, for instance van Zyl Smit, D Taking Life Imprisonment Seriously in National and International Law (2002, Kluwer Law International) at 194Google Scholar; Levi, M “Violent crime” in Maguire, M, Morgan, R and Reiner, R (eds) The Oxford Handbook of Criminology (1997, Oxford University Press) 841Google Scholar; Brown, M “Calculations of risk in contemporary penal practice” in Brown, M and Pratt, J (eds) Dangerous Offenders: Punishment and Social Order (2000, Routledge) 91Google Scholar; Shute, S “Parole and risk assessment” in Padfield, N (ed) Who to Release? Parole, Fairness and Criminal Justice (2007, Willan Publishing) 21 at 27Google Scholar; von Hirsch, A “The problem of false positives” in von Hirsch, A and Ashworth, A (eds) Principled Sentencing: Readings on Theory and Policy (1998, Hart Publishing) 98 at 100Google Scholar.

70 De Beco, G “Life imprisonment and human dignity” (2005) 9/3 International Journal of Human Rights 411 at 417CrossRefGoogle Scholar.

71 Rameka et al v New Zealand comm no 1090/2002.

72 ECHR, art 5(4) reads: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Stafford v United Kingdom (2002) 35 EHRR 32.

73 van Zyl Smit and Snacken Principles of European Prison Law, above at note 34 at 334; Waite v United Kingdom 53236/99 (10 December 2002).

74 Wynne v United Kingdom (1995) 19 EHRR 333; Hussain v United Kingdom 22 EHRR 1; R v Secretary of State for the Home Department, ex parte Doodly, Pegg, Pierson and Smart [1994] 1 AC 531.

75 X v United Kingdom appln no 7215/75 (1981), para 61; Van Droogenbroeck v Belgium (1982) 4 EHRR 443, paras 49–56; Weeks, above at note 31, paras 58–68; Thynne, Wilson and Gunnel, above at note 58, paras 79–80.

76 Weeks, id, paras 64–69; Curley v United Kingdom no 32340/96 (28 March 2000), paras 32–34.

77 Kafkaris, para 6 of the joint dissenting judgment of Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens.

78 Ibid.

79 D van Zyl Smit “Abolishing life imprisonment?” (2001) 3 Punishment and Society 299 at 302.

80 Sec 111(1) reads: “At the end of every four years’ imprisonment of each prisoner undergoing imprisonment for life, or for a period exceeding seven years, the Commissioner shall forward [to the minister] a report upon such prisoner.”

81 The prerogative of mercy is provided for in sec 89(2) of the Constitution and may be granted with or without conditions under sec 326(6) of the Criminal Procedure and Evidence Code, chap 8:01 of the Laws of Malawi.

82 See Rep v Jeke confirmation case no 178B of 2013 at 4.

83 See Child Care, Protection and Justice Act, 2010, sec 140. In fact, at the time of writing the judgment, imprisonment could only be imposed on offenders over 16 years old, since sec 2 of the same act defined a child as a person below the age of 16. Therefore, according to Mwaungulu J's reasoning, a life sentence would have been 38 years. However, the High Court has since ruled that this definition of a child is unconstitutional in view of sec 42(2)(g) and has thus raised the age of a child to 18; see S and Others ex parte Kashuga miscellaneous appln no 129 of 2012 at 15–16.

84 See Rep v Jeke, above at note 82 at 4; Rep v Yasin confirmation case no 219 of 2012; Rep v Mushali and Another confirmation case no 242 of 2013 at 4; Rep v Assam and Another confirmation case no 907 of 2008 at 4; Rep v Samson and Another confirmation case no 466 of 2010 at 4. See also Rep v John confirmation case no 528 of 2010 at 4; Rep v Nelson and Another confirmation case no 1852 of 2005 at 4; Rep v Naluso confirmation case no 387 of 2013 at 4; Rep v Matemba confirmation case no 243 of 2012 at 4; Rep v Mapeni confirmation case no 466 of 2010; Rep v Kaufa confirmation case no 314 of 2011 at 3; Rep v Naphazi confirmation case no 386 of 2011 at 4; Rep v Chikwana confirmation case no 131 of 2013 at 4.

85 See Rep v Chirwa confirmation case no 271 of 2013 at 3; Rep v Kanyumba and Another confirmation case no 904 of 2008 at 4; Rep v Mulolo and Another confirmation case no 362 of 2012 at 4; Rep v Kandodo and Two Others confirmation case no 240 of 2013 at 4; Rep v Kanena confirmation case no 130 of 2013; Rep v Makoko confirmation case no 469 of 2009 at 4; Rep v Headson and Four Others confirmation case no 129 of 2013 at 4; Rep v Jali confirmation case no 228 of 2013 at 3; Rep v James confirmation case no 244 of 2013 at 3.

86 Statistics according to the World Health Organization, available at: <http://www.who.int/countries/mwi/en/> (last accessed 18 August 2017).

87 See Mujuzi, JD “High crime rate forces Liberia to reintroduce the death penalty and put international treaty obligations aside: What the critics missed?” (2009) 17/2 African Journal of International and Comparative Law 342 at 352CrossRefGoogle Scholar.

88 Compare with S v Prinns 2012 (2) SACR 183, holding that the principle of legality does not require that the precise extent of a punishment must be identifiable in advance, so long as some punishment is affixed by legislation or common law. The distinction with the argument in this article is that there is no certainty as to what the punishment of life imprisonment itself entails. So, while there is a penalty attached to the crimes punishable with life, there is no clarity on what such a sentence is in practice.

89 Rep v Cheuka and Others criminal case no 73 of 2008.

90 Penal Code, sec 208.

91 Cheuka, above at note 89 at 60.

92 Rep v Masula and Others criminal case no 65 of 2008.

93 Moyo v Attorney General constitutional case no 12 of 2007.

94 Id at 10–11.

95 This is the penalty for genocide; see Penal Code, sec 217A(2)(b).

96 Manyela v Rep [1966–1968] 4 ALR Mal 279 (HC).

97 Constitution, sec 42(2)(g)(i).

98 See Penal Code, secs 39, 78, 79, 114(1)(a), 210, 211, 217A(2)(a), 301, 357 and 358 respectively.

99 See van Zyl Smit, D “Constitutional jurisprudence and proportionality in sentencing” (1995) 4 European Journal of Crime, Criminal Law and Criminal Justice 369Google Scholar, arguing that the prohibition of cruel and inhuman punishment covers two scenarios: punishments that are barbaric in themselves and those that are disproportionate to a particular offence.

100 See for instance, Rep v Matimati criminal case no 18 of 2007; Rep v Masula, above at note 92. For an overview of sentencing trends in manslaughter cases, see TC Nyirenda “Sentencing trends in homicide cases: Are homicide convicts given their just deserts?” (paper presented to the Working Group on Homicide for Judges of the High Court and Supreme Court of Appeal, Ku Chawe Inn, Zomba, Malawi, 19 December 2009) at 11–22.

101 Chirwa argues that the automatic commutation of death sentences to life imprisonment is unconstitutional because the president does not have the power to substitute one form of punishment with another and that it amounts to a mandatory imposition of life sentences, since there is apparently no individual consideration of the circumstances of the offenders concerned during the commutation process. See DM Chirwa Human Rights under the Malawian Constitution (2011, Juta) at 134.

102 Prisons Act, sec 110.

103 Id, sec 110(1). Reg 134 of the Prison Regulations requires that a prisoner must, as a condition of their licence, report to a designated police station.

104 Id, sec 110(2).

105 Prison Regulations, reg 35.

106 Prisons Act, sec 110.

107 Prison Regulations, reg 2.

108 Prisons Act, sec 111(3).

109 Constitution, sec 89(2)(a).

110 Advisory Committee on the Granting of Pardon Act, chap 9:05 of the Laws of Malawi (Pardon Committee Act), sec 3.

111 Id, sec 4.

112 Pardon Committee Guidelines, clause 2.

113 Id, clause 5.

114 Id, clause 3.

115 Id, clause 4.

116 Id, clause 6.

117 One example is the pardoning of Edward Hayles, a British national, barely 18 months into his 12 year sentence for the sexual abuse of three street children. See Hayles v Rep MSCA criminal appeal no 8 of 2000. Two offenders convicted of rape and murder were also released in 2012 amid allegations that the pardons were based on the fact that one was related to the president and the other to a senior chief. Other serious offenders have reportedly been pardoned on the basis that they suffered a miscarriage of justice.

118 Vinter, para 113.

119 During Malawi's 39th independence celebrations, for instance, President Muluzi released 592 prisoners convicted of minor offences, of whom only 26 were released due to poor health or because they were female prisoners breastfeeding infants.

120 Kafkaris, para 6 of the joint dissenting judgment of Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens.

121 See Constitution, secs 94 and 98(3).

122 See Chihana v State and Another miscellaneous civil cause no 41 of 2009 at 14–15.

123 Child Care, Protection and Justice Act 22 of 2010.

124 See id, sec 140. The only penalty applicable to child offenders that involves detention is a reformatory order under the CCPJA, sec 146(1)(h). Detention at a reformatory centre is an attempt to modify the penalty of detention at the president's pleasure provided in sec 26(2) of the Penal Code. See Malawi Law Commission Report on the Review of the Children and Young Persons Act (2005, Government Printer) at 54. Under sec 141(1) of the CCPJA, courts are now empowered to determine the period that a child must be detained; however, there is no maximum period for that detention. These orders are reserved for serious crimes as stipulated in sched six of the CCPJA. Sec 140, and indeed the whole scheme of the CCPJA, portrays a clear shift from a punitive to a more rehabilitative and restorative approach in the punishment of children. For instance, diversion of child offenders is now legally recognized in sec 146(1)(i) of the act.

125 S v Bull and Another; S v Chavulla and Others 2002 (1) SA 535 (SCA), para 23; S v Tcoeib 1996 (1) SACR 390 (NmS) at 399–440; S v Siluale and Another 1999 (2) SACR 102 (SCA) at 106–07; S v Mahlakza and Another 1997 (1) SACR 515 (SCA) at 521–23; van Zyl Smit and Snacken Principles of European Prison Law, above at note 34 at 8.

126 van Zyl Smit, Weatherby and Creighton “Whole life sentences”, above at note 54 at 64.

127 S v Tjijo (decided 4 September 1991), cited in S v Tcoeib 1993 (1) SACR 274 (NM) at 275–76.