R v Khoviwa (Criminal Case 20 of 2023) [2023] MWHC 116 (20 December 2023)

a Ea 1 iy Age US Ae IN THE HIGH COURT OF MALAWI CRIMINAL DIVISION Zomba Registry Criminal Case No. 20 of 2023 THE REPUBLIC vs CHARLES KHOVIWA

Coram

HONOURABLE JUSTICE D.H. SANKHULANI Limbe, of Counsel for the State Chirwa, of Counsel for the Convict Malipa, Court Clerk and Official Interpreter Mboga, Court Reporter

Judgment on Resentencing

Sankhulani, J Background Information On 16" September, 2003, the Convict, Charles Khoviwa, was, after full trial, convicted by the High Court, sitting with a jury, at Mulanje of the offence of murder contrary to Section 209 of the Penal Code. We shall provide the particulars of the charge and the material facts surrounding the commission of the offence, when we get to the actual determination of the appropriate sentence to be imposed herein. Suffice it to say, at this stage, that, upon being convicted, the Convict was sentenced to the then mandatory death penalty. On 9" April, 2004, the then president of this Great Republic commuted the Convict’s death penalty to life imprisonment. Subsequently, the Convict appealed to the Supreme court against both his conviction and sentence, and the appeal was dismissed. Later on, the Convict was brought before the HC for resentencing hearing, ~ pursuant to the decision of the High Court in Kafantayeni & Others vs Attorney General [2007] MLR 104 and also the 2010 decision of the Supreme Court of Malawi in the case of Yasini v Republic (MSCA Criminal Appeal No 25 of 2005, Unreported). The State objected to the resentencing hearing in respect of the Convict, on the ground that his appeal against sentence had earlier been dismissed by the Supreme Court. By a ruling that ensued, the High Court declined to conduct resentencing hearing on the ground that, since his appeal against sentence had earlier been dismissed by the Supreme Court, the Convict could not come to the High Court for resentencing hearing. The Convict then appealed to the Supreme Court against the High Court's ruling declining to conduct a resentencing hearing. By a ruling that ensued, the Supreme Court held, in essence, that an appeal does not extinguish the right to a

resentencing hearing, and, so, ordered a resentencing hearing relating the Convict herein before the High Court. This matter now comes up before this Court for a resentencing hearing, in respect of the mandatory imposition of the death penalty that was meted out to the Convict, pursuant to the order of the Supreme Court referred to above. We proceeded to conduct a resentencing hearing on the strength of the said order and also on the strength of the Kafantayeni Case (Supra), which declared all mandatorily imposed death sentences for murder to be unconstitutional and, therefore, invalid and also on the strength of the Yasini Case (Supra), which held that all persons sentenced to the mandatory death sentence are entitled to a resentencing hearing. We held the resentencing hearing in the presence of both parties hereto who appeared through Counsel. May it be noted that in support of the resentencing hearing, there are three affidavits that were filed. Of the three affidavits, two were sworn by Chimwemwe Chithope Mwale, of Counsel, one in 2016 and the other one this year (2023). The third affidavit is one sworn by the Convict himself. The Convict also filed submissions in support of the resentencing hearing. On its part, the State did not file any affidavit. Instead, it only filed submissions on resentencing hearing. After the resentencing hearing, we adjourned the matter to a date to be set for judgment on resentencing. Hence our delivery of judgment on ~ resentencing on today's date. ‘The Applicable Legal Principles It was held in the Republic vs. Payenda (Criminal Cause 18 of 2015) [2015] MWHC 489 (23 April, 2015) that in cases of such a nature as the present one, the actual sentencing takes place at resentencing, the previous sentence having been declared constitutionally invalid. Since the actual sentencing takes place at resentencing, it means that the general legal principles of sentencing apply to resentencing hearings, just as they do to sentencing for any other crime. By ‘general legal principles’, we mean those legal principles of sentencing that are applicable to sentencing for murder as they are to sentencing for all other crimes.

Accordingly, we shall, at this juncture, restate those general legal principles of sentencing that we think we are relevant to the present matter. The first general legal principle of sentencing that we would like to restate is that a sentence should be one that fits the crime, the offender, is fair to society and is blended with a measure of mercy (Rep vs. Muhamad Abdul Ibrahim [2010] MLR 311). The second general legal principle of sentencing that we would like to restate is that every sentence must “adequately reflect the revulsion felt by the great majority of citizens” (per Chikopa J., as he then was, in Steven Mbewe vs. Republic, Criminal Appeal Case Number 48 of 2006, Unreported). The third general legal principle of sentencing that we would like to restate is that, at sentencing, the court should bear in mind the various aims of punishment such as retribution, deterrence, incapacitation and rehabilitation, the most important one being rehabilitation (see the Payenda Case, supra). The fourth general legal principle of sentencing that we would like to restate is that every sentence must have reasons therefor provided (R vs. Matebule (Confirmation Case 150 of 1997) [1997] MWHC 29 (12 November, 1997). The fifth and last general legal principle of sentencing that we would like to restate is that ultimately the sentencing process is all about arriving an appropriate sentence in each given case (see the Matebule Case, supra). . The Applicable Legally-Accepted Considerations

Regarding considerations that must be taken into account when sentencing murder convicts, the case on point is the Payenda Case (supra). In that case, Honourable Justice Professor Kapindu said as follows, and we quote with approval: “In my considered view, the decision of Kenyatta Nyirenda, J in the case of Republic vs Margaret Nadzi Makolija, Homicide (Sentence ReHearing) Case No. 12 of 2015, has properly summarised the important considerations that have to be taken into account when sentencing convicts in ‘murder cases. The following considerations have been outlined:

The pages read for this report end here. The judgment continues in the PDF.