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04/24/2015

Malawian Prisoners Receive Long-Awaited Sentence Rehearings

Today, Grace Phiri (name changed to protect her privacy) was released from prison in Malawi after being sentenced to death eleven years ago for killing her husband as he was battering her.   Grace is 61 years old, HIV-positive and mentally ill; she had not been taking anti-retrovirals because she believes the medicine is bewitched.  She is extraordinarily frail.  Grace is now on her way home to her village in northern Malawi, where she will reunite with family members she has not seen since her death sentence was imposed.

Grace is the thirteenth prisoner to be released since the Malawi High Courts began holding resentencing hearings in February 2015.  Five more have been given determinate sentences, and should be out within 5 years.  Eleven prisoners are awaiting judgment, and more hearings are scheduled to take place in coming weeks.  Here’s a link to an incredibly joyful video of the release of Nelly Mtambo (name changed to protect her privacy) last month.  Guaranteed to make you smile or cry, it shows a group of women prisoners singing and dancing as they accompany her to the prison gates:  http://media.lawschool.cornell.edu/flashcom/misc/2015/Babcock.mp4.

The resentencing hearings are being held pursuant to a 2007 judgment of the Malawi High Court (Kafantayeni and Others v. Attorney General) that found the mandatory death penalty unconstitutional.  Grace, Nelly, and 190 other prisoners had been sentenced to death for murder, without any consideration of the circumstances of the offense or their individual backgrounds.  This meant that Grace’s experience as a battered woman could not be taken into account at the time she was sentenced to death. 

Law students at the human rights clinics at Cornell and Northwestern Law Schools, under my supervision, have been working for the last six years to assist Malawian stakeholders participating in the resentencing hearings.   We interviewed approximately 190 prisoners, researched their cases, analyzed potential mitigating factors, and conducted trainings for Malawian lawyers, paralegals, judges, and mental health workers on mitigation investigations and the relevance of mental health to sentencing.  We have traveled to remote villages with paralegals to interview family members and village headmen who knew the prisoners before they were arrested.  We discovered that some of the prisoners were innocent of the crimes for which they were convicted.  Others were juveniles at the time of the crime.  We discovered evidence that many others were intellectually disabled, mentally ill, or had suffered traumatic brain injury as a result of cerebral malaria or other illnesses.  The circumstances of the crimes themselves often involved substantial provocation, such as the case of one young man who was convicted of killing his stepfather after the latter had beaten the defendant’s mother to the point where she thought she would die.

Malawi should be saluted for giving these prisoners their day in court, and for implementing the mandate of the High Court in the Kafantayeni case.  It will be many more months until all of the prisoners have been resentenced, but the progress over the last two months has been encouraging.  The Malawi Human Rights Commission, with funding provided by the Tilitonse Fund, has led a coalition of local stakeholders engaged in this effort, including the Director of Public Prosecutions, Legal Aid, the Paralegal Advisory Services Institute, the Judiciary, the Law Society, and Chancellor College of Law.  They have been ably assisted by volunteer Reprieve fellows Tom Short and Harriet McCulloch, and volunteer lawyer Emile Carreau.  American neuropsychiatrist Dr. George Woods, and U.S. capital litigator Denny LeBeouf have participated in trainings and helped assess the mental status of prisoners.  More volunteers are needed.  As the saying goes, it takes a village.

 -- Sandra Babcock