A critical analysis of the impact of the Bill of Rights on punishment in Malawi

• Main Author: Gumboh, Esther
• Other Authors: Chirwa, Danwood Mzikenge
• Format: Doctoral Thesis
• Language: English
• Published: University of Cape Town 2015
• Subjects: Law
• Online Access: http://hdl.handle.net/11427/15557

Malawi's penal regime has a long history of retributive and deterrent punishment and unfair trials. In the absence of a constitutional set up that recognised human rights and driven by the need to maintain colonial authority, punishment during the colonial period was largely premised on retribution and deterrence. The one-party regime that took over after independence was characterised by gross violation of human rights. The adoption of the Constitution in 1994 ushered in a more humane regime of punishment premised on human rights. Complemented by international law, the Bill of Rights has several provisions which clearly intend to create a penal system that is consistent with international standards. This study examines the extent to which punishment in Malawi reflects international and constitutional standards regarding the aims of punishment, the forms of punishment, and post-sentencing procedures. In answering this question, the study investigates whether, over 20 years after the adoption of the Constitution, Malawi has realised the promises of the Bill of Rights for punishment. It therefore analyses the aims of punishment, the forms of punishment, and release procedures to determine if they comply with Constitution. The findings of this thesis reveal that while some progress has been made in aligning the penal regime with constitutional and international standards, there are some aspects of punishment that are in conflict with these standards. The study proposes some solutions to address these gaps.