On 11 August 2002, Francis Kafantayeni was tried for murder in the High Court sitting in Thyolo before a judge and a jury. He was accused of tying up his two-year-old stepson and burying him alive. Kafantayeni admitted to killing his stepson, but in his defence, he pleaded to temporary insanity induced by smoking Indian hemp. The court, nevertheless, convicted him on the same day of the hearing and he was sentenced to the mandatory death penalty according to law.
However, in September 2005, Kafantayeni took out an originating summons in the High Court seeking a declaration on a point of law that the mandatory death penalty is unconstitutional on several grounds. The Chief Justice duly certified the proceedings for hearing by a panel of three High Court judges, namely, Justice E.M. Singini (SC), Justice FE Kapanda and Justice ML Kamwambe, for adjudication over the constitutional point of law. On 9 August 2006, Kafantayeni was joined by five others, namely, Edson Khwalala, Faison Mawomba Gama, RIchard Chikopa, Tony Thobowa and Aron John who were also convicted of murder and were similarly sentenced to the mandatory death penalty.
In Kafantayeni and Others v. Attorney General (2007), the Malawi High Court invalidated the mandatory death penalty and recommended that all prisoners initially given a mandatory death sentence were entitled to a new sentencing hearing. The Court ordered “each of the plaintiffs to be brought once more before the High Court for a Judge to pass such individual sentence on the individual offender as may be appropriate, having heard or received such evidence or submissions as may be presented or made to the Judge in regard to the individual offender and the circumstances of the offence.” The High Court made clear that these individualised sentencing proceedings must provide each offender with an opportunity to present additional evidence and submissions in support of a lesser sentence — an opportunity denied to those sentenced under the mandatory death penalty regime. The Court emphasised that the sentencing scheme must provide convicted persons an opportunity to “show why such sentence should be mitigated,” based on the “detailed facts of the particular case or the personal history or circumstances of the offender.”
This was confirmed by the Malawi Supreme Court of Appeal in its November 2010 decision on Yasini McLemonce v Republic, where it noted that Kafantayeni Decision “affected the rights of all prisoners who were sentenced to death under the mandatory provisions of Section 210 of the Penal Code,” and because of this, “[t]he right to a re-sentence hearing therefore accrued to all such prisoners.” The affected prisoners included 23 prisoners on death row who received mandatory death sentences and approximately 165 men and four women whose mandatory death sentences have been commuted to life in prison by the President.
The Centre for Human Rights Education Advice and Assistance (CHREAA) is one of the implementing institutions alongside the Director of Public Prosecutions (DPP), the Judiciary, Legal Aid Bureau, the Paralegal Advisory Services Institute (PASI), faculty and clinical students at Chancellor College and Northwestern University School of Law in the United States (NU Law), and the Malawi Human Rights Commission (MHRC). CHREAA conducts community sensitization and investigation in the project. The aim is to sensitize communities about the Kafantayeni judgement and sentence rehearing exercise, and to find out how communities would feel if the prisoners were released from prison. The findings are used as part of the mitigating factors during the sentence rehearing.