Parvais Jabbar, 2011.

Saul Lehrfreund, 2011.

Saul Lehrfreund and Parvais Jabbar are the Executive Directors of The Death Penalty Project, which began in 1992 when Lehrfreund joined the UK law firm of Simons, Muirhead & Burton to work specifically on capital cases. Parvais Jabbar arrived not long afterwards. The Project focuses on providing free legal counsel and aid to people facing the death penalty. It is also concerned to limit the application of the death penalty, and it has sought tirelessly to raise academic awareness and encourage dialogue with countries that still cling to capital punishment. The NGO’s website opens with its mission statement, “We are prepared to work wherever the death penalty is imposed –we will never turn down a case.”.

The DPP’s actions are concentrated in the countries of the Commonwealth, principally in the Caribbean, Africa and South East Asia, which retain the Judicial Committee of the Privy Council in London as their final court of appeal. Working together with local lawyers, it has succeeded not only in rescuing hundreds of people from death row all over the word, but also in improving prison conditions, effecting legislative change and changing the mentality of judges and politicians. A DPP team provided legal advice and support to the local defence lawyers in the appeal against Francis Kafantayeni’s sentence, which led to the end of mandatory capital punishment for homicide in Malawi. Winning the case was crucial because it becomes less likely whenever a death sentence is commuted or set aside that others will actually be carried out, as the abolitionist lawyers well knew. Moreover, when a harsh law is repealed in one country, similar legislation in others becomes ever harder to defend. Around a dozen countries including Malawi have abolished mandatory death penalties with the DPP’s help.

Saul and Parvais both travelled to Malawi several times before the hearings to coordinate the case and help the local defence team draft their brief. The case went on for two years. Finally, Malawi’s High Court reached its decision in 2007, finding that capital punishment as the automatic penalty for homicide was in breach of the right to life and constituted an inhumane punishment, insofar as it deprived the accused of any possibility that the courts might weigh mitigating factors. Hence, mandatory sentencing was indeed unconstitutional. The High Court decided that Malawi’s judges would henceforth be allowed discretion to reduce the sentences of those convicted in homicide cases in view of the circumstances and mental health of the prisoner, so that death remained the maximum possible penalty for murder, but was no longer the only one. An order was issued allowing all prisoners condemned to death before 2007 to seek a review of their cases and re-sentencing in the High Court, in view of all of the circumstances surrounding their crimes.

Even so, not much had changed two years later, in spite of the Kafantayeni ruling. Nobody seemed to have much time for the 200 or so death row inmates now entitled to a retrial. Sandra Babcock realized that Malawi’s chronic poverty and lack of resources made it practically impossible to undertake the procedural steps needed to retry their cases. Meanwhile, the country’s few defence lawyers had scant experience presenting attenuating evidence and lacked the necessary preparation to represent prisoners in court, and they were almost entirely ignorant of key issues like mental health and minority as mitigating factors that could be argued to secure a reduced sentence. Furthermore, the courts did not make the reasons for their decisions public, a custom that did little to help lawyers understand their verdicts.

In order to set the process in motion, Sandra decided to involve law students as a form of practical training, because they had not only the necessary knowledge but also time and access to legal resources. In 2009 she approached the Malawi Human Rights Commission offering her pro bono support to set up what she called the ‘Kafantayeni Project’, an initiative she had herself created to offer a second chance to prisoners condemned to death for murder before 2007, including those whose sentences had already been commuted to life imprisonment by presidential reprieve. The aim was, then, to seek retrials in order to present fresh evidence and mitigating factors, as permitted by the Kafantayeni decision. A second, more general goal of the project was to raise the overall quality of legal representation in Malawi.

Babcock knew that it would be necessary to involve all players in the Malawian justice system to achieve effective representation for the condemned. Finally, she managed to bring together Malawi’s Director of Public Prosecutors and Judiciary, the Malawi Law Society, the Malawi Prison Service, the Paralegal Advisory Service Institute (PASI) and the Centre for Human Rights, Education, Advice and Assistance (CHREAA), an NGO, in a common project. She also succeeded in involving the Law Faculty, Chancellor College, University of Malawi in Zomba, and the psychology units at Hospital San Juan de Dios in Mzuzu and Zomba Mental Hospital.

Though she had established an extensive network of partners for her project, Sandra knew that she still lacked qualified staff with the skills to conduct investigations and draw up the briefs needed for retrial hearings with any guarantee of success. So, she created a programme to train Human Rights students at the University of Cornell in legal practice and to bring them to Malawi to help prepare cases. A number of volunteers from the NGO Reprieve also offered to help in the field. Sandra wove a tight network, an example of non-intrusive cooperation between countries to achieve effective progress in the matters of justice and to prepare the ground for the abolition of capital punishment in Malawi.

The Australian lawyer Emile Carreau interviewing convict Rodrich Magombo in Zomba maximum security prison assisted by local law student Tiyamiha Mawale. 2016.

Money was of course needed to compile case files, interview prisoners and obtain affidavits and evidence in order to repeat trials with some guarantee of success. It was Emile Carreau, a young Australian lawyer who had already worked with The Death Penalty Project and who was now involved as a volunteer in the Kafantayeni case, who suggested that Sandra should contact the Tilitonse Fund, a donor platform providing aid for civil society projects, which agreed to provide the necessary funding.

Sandra began travelling to Malawi twice a year with her students. Meanwhile, Emile and the Reprieve volunteers set themselves up at the offices of the Malawi Human Rights Commission in Lilongwe to work full time in the field and maintain the project’s network of participants. The first step was to identify all of the people who had been condemned to death before 2007 and could therefore benefit from the Kafantayeni decision, and then to interview them at Zomba prison, seeking as much information as possible because the project team was ignorant of the details of their cases or had been unable to locate their case files.

Reprieve volunteers Zhora Blok and Katie Campbell meet Sandra Babcock and her assistant, professor Madalyn Wasilczuk, together with Laurel Hopkins, Thalia Gerzso and Harpreet Ahuja, three Cornell University law students participating in the Kafantayeni Project. Lilongwe, 2016.

“We began interviewing everybody in November 2009,” Sandra recalls. “I returned in the spring of 2010 and we were talked to almost 170 people in just one week, including those who had been condemned to death before 2007 but whose sentences had been commuted to life imprisonment. We had to finish in a week because the Prison Service had told us this would be our only opportunity to talk to the prisoners, and that we would not be allowed to the enter death row module or speak to any of the inmates a second time. So they gave us this one chance, just one week to see everybody at the high security facility in the city of Zomba. When we arrived at the prison, a queue of inmates lined up before each one of us. We interviewed every one of them for between 20 minutes and half an hour. One after the other without pause. It was absolutely exhausting, but we were finally able to interview them all and to draw up a summary and report for all of the interviews. We still have these summaries, in which we were able to identify the prisoners for the first time, to find out who they were and why they were in jail.”

Having completed this initial fact-finding, Babcock realized that she would need to unearth the lost case files belonging to the prisoners. Emile Carreau got straight to work. For nine months he visited courts and jails up and down the country seeking the files. He examined untidy piles of folders stacked along the walls of offices, and he even found some files lying around in courthouse toilets. Sometimes he found himself rooting around in cupboards infested with cockroaches and rats. He even saw a group of officials burning handy documents to warm their lunch. No task for the fainthearted. Civil and criminal records were all jumbled up together. Emile checked the files one by one against his list of the condemned. He found eighty six!

“It was heroic”, recalls Sandra, “and unbelievably he did all that work for free, even paying his own expenses, and all the time building up the most extraordinary relationship with Malawian society. He managed to set everyone to work, standing them beers and playing football with them. This project would not have gone ahead without him.”

Even so, 80 case files were still missing. All that was known about these cases was the brief prison record, which gave the prisoner’s name and approximate age, and the date and place where they were sentenced. Armed with this information, the Reprieve volunteers and Cornell students began the investigations required to prepare the defence briefs, assisted by paralegals –people with a broad knowledge of the law although lacking formal qualifications–. These paralegals played a key role in the project, because it was they who ensured smooth communications, cooperation and coordination with the prisons, the courts, the convicts themselves and the communities into which they might eventually be released. These were the people who really knew the customs, beliefs and needs of the population at large. They also provided the link between the foreigners and the locals, and they were the only ones able to guide the volunteers round the maze of dusty, unsignposted roads leading to the country’s villages. Only the main roads are signposted and paved in Malawi, and when the rains begin, driving becomes even more difficult. They also helped the prisoners understand the process on which they were about to embark, as well as explaining to the foreign lawyers and students the reasons for what was going on around them. They were, in the words of Alfred Munika, their director in the city of Lilongwe, the ‘lubricant’ of the judicial system. It was only thanks to them that the wheels of justice could turn at all.

The first step was to interview the undocumented prisoners again, and then to visit their villages and talk to their families, possible witnesses, traditional community leaders and, sometimes, to the families of victims, in order to obtain as much information as possible about the circumstances and possible mitigating factors of each crime. It was found that some prisoners were in all likelihood innocent of the crimes of which they had been convicted. Others were still minors when they committed the offence. In yet other cases, prisoners were found to be suffering from mental disabilities and illness, or to have suffered brain damage as a result of malaria and other maladies. The circumstances of the crimes often involved substantial provocation, including the case of one young man found guilty of murdering his step-father after the man had beaten his mother almost to death.

Reprieve volunteer lawyer Katie Campbell and Joel, a Zomba-based law student interview Daniel Teputepu, who was condemned to death in 2001, to prepare his defence. Zomba prison, 2016.

All of this information was used to prepare countless witness statements, medical reports, educational and prison behaviour certificates and so on to be produced in court as evidence. It was a huge job. Merely finding out the age of a prisoner to establish whether he might have been underage when he committed his crime was a heroic task. There is no national system for the registration of births in Malawi and people commonly cannot say exactly when they were born. This had to be deduced by asking older relatives who the sitting President was when the prisoner was born, whether he was at school when the crime occurred, and other similar questions. Age could not be proved with 100% certainty, but credible pointers could certainly be found.

“We saw numerous cases of prisoners who must have been minors when they committed their crimes, so they should never have been sentenced to death under the Constitution of Malawi or under international law,” Sandra remarks. “But delays and the backlog of cases means that it takes at least five or six years for a case to come to trial. By this time, the child has become a man but nobody stops to think whether or not the accused was a minor when the crime was committed. Meanwhile, the prisoner is often ignorant of the importance of establishing his actual age and the effect it could have on his sentence. So the opportunity is lost and people are condemned to death merely because nobody realizes that they were minors when they were arrested.”

Finally, the team spoke with the prison officials. Zomba prison is Malawi’s only maximum security facility, and it is where death row prisoners are incarcerated. The officer in charge of the institution in 2016, Major Manwell, is amiably polite and cooperative. All of his officers are aware of the Kafantayeni project and they are happy to provide information about convicts’ behaviour in prison, their educational attainments and cases of mental disability or disturbance. In such cases, the Project contacts the psychiatrists at San Juan de Dios Hospital in Mzuzu or the mental health unit at Zomba Hospital. Babcock also sent the US psychiatrists George Woods and Richard Dudley, both experts in the field of mental health in correctional institutions, to Malawi to look into the most serious or complicated cases, accompanied by the South African specialist Colleen Adams.

All of the information obtained is put together in a brief for use in court by the defence counsel, who would never have had time to compile the information alone.

The results of the Kafantayeni Project have surpassed the expectations of even the most optimistic of those involved. Sandra never believed they could achieve such spectacular success. The first hearings began in February 2015, and by May 2018, one year after the project ended, 154 of the 168 prisoners qualifying for judicial review under the Kafantayeni decision had been resentenced. The results speak for themselves: 126 convicts had been released, either at the end of a new, reduced prison term or immediately in the case of those whose sentences were commuted to a term that was shorter, sometimes much shorter, than the time they had already spent behind bars. Another 27 were nearing the end of their revised sentences. Only one reprieve involved commutation to life imprisonment.

Sadly, however, two of the remaining 14 prisoners died in prison, one before his case came up for retrial and the other before a decision was reached in proceedings. A further twelve men have yet to come before the court. These cases remain outstanding either because their first trial was held after the Kafantayeni decision, although the crime itself was committed beforehand, or because of procedural difficulties because the law allows the original sentence to be changed but not the verdict. The paradoxical result is that the case enters a legal limbo if the accused is found to be innocent, and this situation can be difficult to resolve.

Sandra Babcock meeting paralegals at the PASI’s offices in Lilongwe to organize reinsertion field trips to communities receiving recently liberated prisoners. 2016.

The project has involved cooperation throughout the judicial system. Training seminars were provided organized and a handbook of best practices was published to help lawyers and paralegals find mitigating factors and draw up affidavits.

Alfred Munika
Head of the Lilongwe Paralegal Advisory Service Institute office (PASI).
The paralegals play an essential role in preparing the cases for resentencing as well as in conducting village mitigation investigations and well-being checks. Alfred is also a Senior Group Village Headman so his participation in interviewing the tradicional leaders has been crucial.

Honourable Assistant Registrar Simeon Mdeza
The Assistant Registrar of the Criminal Registry of the High Court of Malawi.
As a representative of the judiciary, his involvement in the project has been invaluable in terms of filing submissions, scheduling hearings and communicating with judges.

Gift Nankhuni
‘Pro bono’ Lawyer and representative of the Malawi Law Society.
The project relies heavily on legal aid and pro bono lawyers to represent all the convicts.

Mayor M. Nzima Manwell
Officer-in-charge of Zomba Central Prison.
Main authority in the prison. He has facilitated from the first moment the work of those involved in the Kafantayeni project.

Maxwell Chidothi
Paralegal at PASI East in Zomba.
Maxwell is one of the most experienced paralegals. Irreplaceable while making the interviews in prison and in the southern villages.

Dzikodianthu Malunda
State Advocate for the office of the Director of Public Prosecutions (DPP).
Dziko has played an essential part in facilitating the relationship between the DPP and the other stakeholders. He has also been one of the interlocutors of the project within the Office of the Prosecutor.

Allan Chintedza
Programme Manager at the Tilitonse Fundation “Let us all play our part”.
The multi–donor pooled platform that provides grants to civil society projects in Malawi, like the Kafantayeni Project.

Boxten Kudziwe
Paralegal at CHREAA.
CHREAA is a not-for-profit non-governmental organization dedicated to the promotion and protection of human Rights. It performs the same role as PASI.

Chimwemwe Chithope–Mwale
Legal aid lawyer.
A senior legal aid lawyer at the Legal Aid Bureau in Mzuzu.

Margaret Munthali
State Advocate for the office of the Director of Public Prosecutions (DPP).
It is the responsibility of the DPP to bring before the court all the convicts who were previously sentenced to themandatory death penalty and who will now receive a new sentence.

Peter Chisi
Director of Civil and Political Rights at the Malawi Human Rights Commission.
This is the directorate under which the Kafantayeni Programme

Sargento Andrew Dzinyemba
Prison Officer in charge of the Registry at Zomba Central Prison.
Officer Dzinyemba and his colleagues at the prison have gone above and beyond in order to assist the project. It would not have been possible without their assistance, support and great suggestions.

Rodrick Zalimba
Director of the Prison Fellowship in Malawi.
Runs the Halfway House in Balaka. As there are no government facilities, the Halfway House fills a very important gap in terms of providing psychological, financial, vocational and emotional support to those in need.

Nixon Ngwira
Paralegal at PASI North in Mzuzu.
Play an essential role in preparing the cases for resentencing as well as in conducting village mitigation investigations up north.

Fosa, home village of ex-convict Mtilosera Pindani in the district of Dedza. 2016.

Reprieve volunteers are present in the courtroom during trial proceedings. Each time the judge frees a convict, they return with him to the prison to help with the release paperwork, and in most cases they leave with him on the very same day, because nobody wants to stay behind bars for a minute longer than necessary. With the paralegals’ help, the former prisoners are taken first to buy clothes and given a meal, and then they go to a hotel. It is only rarely that prisoners’ families attend trial proceedings, but when they do it is they who take charge of their freed relative.

On the next day, activists take the ex-convicts to their villages and make sure that suitable accommodation is available for them. They are also given a little money. In a few days the paralegals will call at the village to make sure everything is going smoothly.

The Kafantayeni Project ended in 2017, but a second phase of the process is now under way, again designed by Sandra Babcock and her team and coordinated by the Malawi Human Rights Commission, but this time with United Nations funding. This is the ‘Reinsertion Control’ phase, and it involves monitoring the experience of the ex-convicts in their communities in order to ensure that they settle in smoothly and are able to manage their lives successfully.

The paralegals take Cornell University students to the villages to which former death row inmates have returned in order to check on their reintegration.

PASI paralegal Nellie Nthakomwa explains to locals at the village of Chimkuyu that the purpose of their visit is to check the well-being of a former prisoner and his family, and then to verify successful reintegration into the community.

Accompanied by the Malawian paralegals, Cornell University students also travel to the villages which have taken in returnee prisoners. Babcock’s team has prepared a series of questionnaires for the students to use as a script. The interviews serve various purposes, among them to assess the impact of the former prisoner’s return both on his family and on the wider community, and to spot situations of conflict between him and the family of the victim. Another of the program’s objectives is to identify and locate any ex-convicts who are suffering or who need support. These people are directed towards a special training program run by the Malawi Prison Fellowship. This is the Halfway House, a facility that takes in a small number of former long-term prisoners to teach them the skills they need to earn a living after their incarceration ends. When their training is complete, they are provided with tools and a little money so that they can start their own businesses.

After several hours driving along dusty, unsignposted roads, the team finally reach a village. Malawi’s poverty is clearly visible here. According to Katie Campbell and Zorah Block, the two Reprieve volunteers who have coordinated all of the work undertaken over the last two years of the project under Sandra’s supervision, the level of privation in a village can be accurately judged by considering the seats offered to visitors on their arrival. The wealthiest will provide guests with a wooden chair. Next best is a plastic one. In poorer villages visitors will be offered a rush mat, and then there are places where one may be given a stone to sit on, or nothing.

The first step is to make contact with the village headman and inform him of the visit’s purpose. In most cases, the paralegals improvise an awareness meeting with the community to explain that they have come back to check on the former prisoner and his family, and to make sure that he has managed to integrate properly into village life.

Madalyn Wasilczuk, assistant professor to Babcock at Cornell University, interviews Chimkuyu village elders Potipha Chikankheni and Scott Bikitala with the help of PASI paralegal Lemekezani Chete to follow up on the reinsertion of Jamu Banda after his release.

In light of these results, Babcock and her activists have performed a survey among these very influential traditional leaders to find out whether their feelings about the death penalty have actually changed over time. “In our interviews, we have found these people to be very reflective –they think logically and many of them are not at all in favour of the death penalty. Some have never supported it. However, those who used to be in favour no longer are because of their experience with prisoners who have returned to their communities, and they are now beginning to see and to say that people can change, and that they deserve a second chance. In some cases, they have discovered that the man who was sentenced to death was not even guilty of the crime he was accused of, so they have come to realize that the justice system is not perfect. I’m not saying that all of them believe this,” Sandra notes, “They all have their own ideas. But those of them who have direct experience of the death penalty no longer seem to support it, and this is a huge step towards the abolition of capital punishment in Malawi.”

Davidson Chambala, Nkhono village headman, following the return of Abraham Galeta and Zaima Makina after 19 years in prison.

Nkhono village. November, 2016.

Abraham Galeta in the house he built after returning to Nkhono. 2016.

Zaima Makina reads the Bible in his house in Nkhono. 2016.

Abraham Galeta and Zaima Makina

Abraham Galeta was 19 years old when he was arrested on a charge of murdering his step-father. He was unmarried and the oldest of four brothers. His uncle Zaima Makina was 23 years old. He was married and he had a one-year old daughter. The killing occurred in 1996 in the village of Nkhono, when Galeta’s step-father Machesa came home drunk and began beating his wife, Abraham’s mother, because his dinner was not ready. The violence of the assault and the woman’s screams alerted the neighbours, who rescued her and gave her refuge in their house. Not long afterwards, Abraham Galeta and his uncle Zaima Makina arrived at the village and confronted the attacker. According to Galeta’s own courtroom testimony, Machesa refused to apologize and instead began to complain that he had to look after Abraham, who was no more than a step-son and an extra mouth to feed. He then left the house, and coming back with a chain he began to strike Galeta, who managed to catch the weapon and wrest it from him. When Machesa fled the scene, Galeta and Makina gave chase, cornering him in the neighbouring village, where they beat him until he lay senseless on the ground. The autopsy revealed that death was caused by a head injury and an internal haemorrhage resulting from the blows the victim had received.

Abraham Galeta and Zaima Makina were tried together in 1998. Zaima pleaded guilty in court. Galeta admitted having struck his step-father in self-defence, at the same time swearing that his uncle had not done so. The only witness to the incident was a thirteen-year old girl, who could not say which of the accused had delivered the fatal blows. Both men were found guilty and sentenced to death.

Galeta and Makina were two of the first prisoners to take part in the Kafantayeni Project. On 8 April 2015, nineteen years after their incarceration, the High Court of Malawi agreed to hear the evidence of mitigating circumstances in a retrial.

The Cornell University students visited the pair in prison to prepare the hearings. Neither had spoken with a lawyer since the day when they had been condemned to death. Makina, in fact, had not even had a lawyer at his first trial, because he could not afford one, making this the first time he had received counsel. Malawian paralegals trained by Sandra Babcock travelled to Nkhono and interviewed witnesses and neighbours in search of mitigating circumstances. They also talked with the village elders and headman to establish Galeta’s and Makina’s good characters and make sure they would be accepted if they returned to the village. With the support of students from the International Human Rights Clinic at Cornell University and the Reprieve volunteer Tom Short, the public defence attorney Chimwemwe Chithope-Mwale was able to argue in court that Abraham had been provoked by Machesa’s brutal assault on his mother.

Key reasons for seeking a reprieve, meanwhile, included the opinion of the prison staff, who considered both of the condemned men to be exemplary inmates whose behaviour showed that they had been completely rehabilitated and did not pose any threat to their community. Abraham had learned to read in prison. He also worked and he was taking classes in tailoring. Moreover, neither of the two had any criminal record before the verdict. It was argued that their actions had been a reaction to the beating suffered by Abraham’s mother, and that there was no premeditation. The court was also asked to take into consideration Zaima’s precarious state of health. He had lost his right eye as an adolescent, and he was suffering from ulcers and cerebral malaria.

In 2015, the High Court of Malawi turned down the arguments of the State prosecutor, who had again sought the death penalty for the accused, and decided that Zaima should be sentenced to 30 years imprisonment, leaving him one more year to serve before being released in May 2016. Abraham Galeta’s sentence was reduced to 25 years, and he was immediately set free. The judge argued that Galeta should receive a shorter sentence than his uncle on account of his extreme youth at the time of the crime.

An assessment carried out in November 2016 to monitor the situation of the two men after returning to their village found that they had successfully reintegrated.

With the help of PASI paralegal Lemekezani Chete, Cornell University professor Madalyn Wasilczuk checks the progress made by Zaima Makina six months after his return to the village of Nkhono. 2016.

Mtilosera Pindani in the village of Fosa. 2016.

Mtilosera Pindani

In 1993, a man tried to steal some hens from the Pindani family. Everybody in the village knew him for a thief and a drunk. Caught in the act, the man fled, leaving behind a trap. Not long after, he returned to demand the return of the device. When the family refused, he seized hold of Mtilosera’s sister and struck her to the ground, where he began kicking her. In a panic, Mtilosera intervened and began to struggle with the man, even though he was much larger. Grabbing a log of firewood, he struck the intruder on the head, killing him instantly.

He was arrested the next day and forced to sign a confession. He was only 16 years old. He was locked up in a local jail for five years until he was tried and sentenced to death in September 1998. He then spent nine months on death row, fearing that he might be executed at any time. However, his sentence was commuted to life imprisonment in 1999 thanks to a presidential reprieve. While in prison he contracted tuberculosis and cerebral malaria, and he had to spend several months in hospital. He also suffered hunger, eventually leading to severe malnutrition. Pindani says that his daily rations consisted of gruel containing five beans, which he would split into a mid-day meal of two beans and evening meal of three, each time accompanied by half the soup.

There is no sign that his legal minority was brought up at his first trial. He never had any opportunity to appeal his sentence until the Kafantayeni Project took up his case, gathering affidavits from witnesses and family members and seeking a retrial on the grounds that the Pindani was only 16 or 17 years old at the time of the homicide. It was further argued that he acted in self-defence and without premeditation, that he had no criminal record, and that he had been an exemplary prisoner and that he cooked for his fellow inmates. By that time he had been in prison for 22 years. In November 2015 he was resentenced by the High Court, resulting in his immediate release.

He returned home to the village of Fosa at the age of 40. When he arrived, his family and friends rushed to embrace him until they were all rolling in the dust. One year later he was chosen for the traditional role of village headman, an unprecedented success story for the reinsertion of ex-convicts in Malawi.

Laitoni Pindani and Zelesi N. Pindani, Mtilosera’s parents, in the house they built for their son on his return. Fosa, 2016.

Members of the Pindani family with Leston Njomvuyarema (standing), one of the village elders at Fosa. 2016.

Family, neighbours and elders of the village of Fosa posing before Mtilosera Pindani’s house. 2016.

Clitus Chimwala by the door of the store he has opened in Zomba market using financial aid provided by the Kafantayeni Project.

Clitus Chimwala

Clitus Chimwala was arrested in the city of Zomba in 1994 upon his return home from a visit to relatives. He was 17 years old at the time and studying at the city’s college. At the police station he was accused of murdering a woman with another man, whom he had never met. Clitus denied any part in the crime, insisting that he was not even present at the scene. Nevertheless, the police threatened him and beat him with iron bars until he signed a confession that he was never allowed to read. Clitus was held on remand for four years until his trial in May 1999, when he was found guilty despite lengthy deliberations and concerns among the jury. He was then sentenced to death, as was mandatory for verdicts of homicide at the time. He spent five and a half months on death row until the sentence was commuted to life imprisonment.

In 2015, the Kafantayeni Project helped him prepare the defence for his retrial, where it was argued that it was more than likely that Clitus was a legal minor at the time of the crime and concerns were raised about the scant evidence on which the original conviction had been based. His defence counsel also produced medical certificates showing that he had already suffered serious mental health problems before his arrest. His mother signed a statement declaring that his birth was long and difficult, and that the doctors had had to use forceps to deliver the baby. When he was finally born, he took a long time to cry. His brother also declared that Clitus suffered from a speech impediment, which sometimes made it difficult to understand him.

In July 2015, Clitus was resentenced to 15 years’ imprisonment, which meant his immediate release. One of the judge’s arguments for freeing him was the likelihood that Clitus could be reinserted into society without problems when he was freed.

Byson Kaula at the Halfway House. Balaka, 2016.

Byson Kaula

In 1990, Byson Kaula bought a plantation of fruit trees without knowing that the owner of the land had outstanding debts with neighbours, who had expected to receive the land in settlement. Byson was married and had six children. He employed five young men to work the land, but one fell seriously ill after a little while. The man was almost paralysed, so Byson took him to hospital several times. One rainy day, when he lifted the man onto his shoulders to carry him out of the bathroom, he slipped and the two fell head first downstairs. At the hospital, Byson’s arm was set in plaster and the sick man was diagnosed with cerebral malaria. He died four days later. Byson took fright and buried the body secretly on his land. His neighbours, the creditors of the former owner, accused him of murdering his employee in the hope that they would be able to get control of the land this way.

Some time later, Byson was arrested and accused of homicide, and after spending months in jail, he was tried and sentenced to death after the jury unanimously found that he was a wicked man who deserved to hang. He then spent seven terrible years on death row, with little to eat and hardly able to sleep. He attempted suicide several times. The days when his wife visited were the worst. Seeing her there before him, struggling to hold back her tears, only made him feel worse. On the day of his execution, the hangman began his work before dawn. Byson still cannot forget the wailing desperation of his companions in misfortune, as they were first chained to their beds and then dragged one by one from their cells to be hanged. He waited, terrified in his own cell, but at the last moment the hangman –a white South African who was often employed as executioner by the government of Malawi– decided that he did not have time to execute the twenty men on his list and scored out some of the names. Kaula was one of the three survivors.

The executioner returned three months later. This time 17 hangings had been programmed, but time was once again short and only 15 men went to the drop. Once again, Kaula was one of the lucky two. Incredibly, the miracle happened a third time. Kaula was the sole survivor of ten planned executions. His sentence was commuted to life imprisonment in 1999. Byson had come back from the dead. He began to study, and he eventually became a teacher to other inmates.

The Kafantayeni Project took on his case in 2015, and Byson was resentenced to 25 years’ imprisonment, reflecting the fact that he had never had any intention to kill. The result was his immediate liberation in February 2015 at the age of 65. His wife had died. On the day he was freed he was still giving French classes in the prison. He now lives in the Halfway House belonging to the Malawi Prison Fellowship.

Jamu Banda with two boys in the village of Chinkuyu. November, 2016.

Jamu Banda

In December 1994 Jamu was working in the fields with his cousin John Nthara and his elder brother Michael when they saw a man armed with a machete burst into one of their houses, threatening anyone who might approach. As fast as they could they ran back to the village. Seeing them arrive, the intruder seized a burning brand from the kitchen fire and hid in the latrine, but the sacking door and thatched roof caught fire almost immediately. By the time they were able to help him, the man had suffered severe burns all over his body.

The three men went to the police on the instructions of the village headman, but they were told there was no transport available for the injured man. So they loaded him onto a bullock cart to take him to hospital. On the way, the man again became violent and they had to tie him down by his hands and feet. When he died five days later, the three farmers were accused of murder. Their neighbours insisted they were innocent, but none was able to attend the court to testify on their behalf, and they were all sentenced to death in the absence of legal counsel. Their lawyer had abandoned them on the day of the trial. Eventually their sentence was commuted to life imprisonment, and the system then forgot all about them for twenty years. They were never able to appeal, and eventually their case files were lost.

The three suffered unspeakably. Michael, the elder of the two brothers, fell ill with malaria, tuberculosis and then AIDS. His head and anus became covered with sores that caused him intense pain, and he eventually came to weigh less than 40 kilos. He died in prison in 2014.

Jamu was retried on 7 May 2015 after Sandra Babcock’s team took up his case. His sentence was cut and he became immediately eligible for release. By this time he was 66 years old, the last 20 of which he had spent in prison. In the meantime, his wife had remarried and she and their three children had left their village. The paralegals currently visit Jamu Banda regularly to check that he is making progress in his reinsertion.

Main gate of Zomba Maximum Security Prison. 2016.

The death row module consists of a long, narrow patio, to the right of which stands the cellblock. Thanks to the presidential reprieves of 1995, 1997 and 2004, and now to the Kafantayeni Project, this section is now a little less overcrowded than the rest of the prison. The cells are tiny, however, measuring only around five square metres, while the ceiling is around three metres high. Most cells hold two men, but some hold three. Each cell has a small window the size of a cat flap set above the door, which provides the only ventilation. The heavy doors are made of wood reinforced with steel bars. The cells are lit by a single bulb, which stays on all night long. A metal bucket serves as the toilet.

Each inmate receives two blankets, usually sleeping on top of one and covering himself with the other. They spend half of their day sitting in the dark in their cramped cells. The prisoners are locked in at around 4 o’ clock in the afternoon, and allowed out again into the common area of the module at around 6 o’ clock in the morning. The exercise yard is twenty metres long and six wide. In the corner at one end, standing on a raised platform, is the gallows, reached by a short stair. It has not been used since 1994, but its very presence casts a dark shadow over the yard. There are three showers and three toilets at the end of the cell block, opposite the gallows.

The prison regularly suffers from food shortages and power cuts. In 2013 the government slashed the institution’s food budget by half, causing serious malnutrition among its inmates. All they usually receive all day is one dish of nzima –corn meal– and six beans. Prisoners split their rations between lunch and dinner. Three beans each time. Budget cuts have also affected hygiene. There are rarely any disinfectants, no bleach and no soap. Drinking water is scarce.

The death row inmates are kept separate from the rest. They are not allowed to visit any occupational workshops or to take part in educational programmes and classes, and they only occasionally have the opportunity to work with other prisoners outside their section.

By the end of 2016, there were only 29 prisoners left on death row at Zomba. Most were condemned after 2007, and any mitigating circumstances of their cases were therefore weighed at their trials. The rest were in the Kafantayeni Project. Some cases have already been reviewed and are awaiting resentencing, while other inmates are still trying to overcome legal obstacles in the way of their retrial. There were only seven cases still under review by the Project team by this time the most difficult to prepare because they needed a stronger defence and involved aggravating circumstances, which meant they were more likely to end with a second death sentence or life imprisonment. The Kafantayeni Project ended when these cases were resolved.

Blackboard in the lobby of Zomba prison, showing the number of prisoners held in each module of the facility.

Archives in the offices of Zomba prison. 2016.

Group of prison officers in charge of the registry of people entering and leaving Zomba Central Prison. November, 2016.

Venita Maiche

During a period of famine in 2002 when people were reduced to eating whatever they could find, two of Venita’s grandchildren sneaked into a neighbour’s vegetable plot to see if there was anything there to steal. They were caught, and the man handed them over to their grandmother. The older child managed to escape, so their grandmother chastised the younger one, who was only four years old, with a stick. Weak from hunger, the little boy could not withstand the beating, and he died. Venita took him to the river to try to bring him round with water. When she saw that he was dead, she went to seek her other grandson. Three days later she told the police what had happened. The child’s body was found by the river with a heavy stone on his chest, which Venita said she had placed there to stop him from being washed away by the current. She spent seven months on death row until her sentence was commuted to life imprisonment.

After fifteen years in prison, she obtained a retrial and was resentenced to 25 years in prison, which meant she would be freed in 2018. However, Malawi’s Department of Public Prosecutions appealed and again sought the death penalty for the old women without any consideration either for her age –at more than 60 she was the oldest prisoner in Zomba in 2016– or her proven intellectual disability. Fortunately, this initiative was unsuccessful, and Venita was freed in 2018. It was what her daughter, and even her surviving grandson, wanted. They both feared for her life and believed that she had never deserved the death penalty. All they had ever wanted was for her to come home.

Mabvuto Alumeta

When he was around 14 years old, Mabvuto and several other boys were abducted from their village in Mozambique by guerrilla fighters, who forced them under pain of death to undergo military training and to fight. Mabvuto suffered bullet and shrapnel wounds. He saw first hand the slaughter and devastation of the civil war until, eight years later, he managed to escape and reach a refugee camp in Malawi, where he was reunited with his brothers and sisters.

Conditions at the camp were very difficult. His brother and sister-in-law died of cholera. Another sister was murdered while she was pregnant. These experiences left deep scars on Mabvuto, changing his behaviour and distorting his ability to relate to other people.

In 1996 he and two accomplices killed a man in a robbery gone wrong. The police arrested him three days later, at the same time seizing various stolen goods including a rifle. He was not tried until 2001, when he was condemned to death. He obtained a reprieve in 2002, however, and his sentence was commuted to life imprisonment.

The year 2017 found him awaiting a retrial. His health was by this time seriously impaired by the long-term effects of his war wounds, his twenty years in prison and AIDS.

Binwell Thifu

In 2003, Binwell Thifu paid a man to take him for a ride on his bicycle. As luck would have it, Binwell met the man again that evening drinking in a bar with a friend, Isaac Wala. They had a drink together, and then Wala asked the man to take him home. Thifu stayed in the bar drinking a while longer. Not long after he returned home, Isaac Wala appeared with a bicycle and a plastic bag full of clothes that he abandoned at his house. On the following morning, a woman in the village found another plastic bag containing a man’s genitals and bloody clothing in her garden. The body of the cyclist was found the same day, naked and mutilated. Thifu made a statement affirming that Isaac Wala was probably the killer, but he had already gone by the time the police went to arrest him. Despite the absence of any direct evidence to link him to the crime or of any eyewitnesses, the court found Thifu guilty of the crime in 2005 based only on the bag found in his house and sentenced him to death. He would spend the next 14 years in Zomba prison. In 2017, he was still in jail because of procedural problems caused by an appeal, which complicated the repetition of his trial.

John Thomas

John Thomas was born to a penniless, alcoholic mother who suffered numerous illnesses and malnutrition during her pregnancy. John himself was afflicted by developmental problems from childhood. He took three or four years to learn to walk, and he never went to school. Sometimes he would go for days on end with nothing to eat, and his intellectual disability was plain to see. In August 2006, his niece Eva went to visit him at his home, but she never came back. Three days later the remains of the girl were found cut up into pieces in a sack at John’s house. They also found flesh in a metal stewpot. John gave himself up to the police and confessed his crime. He was tried in 2007 and sentenced to death. The trial was repeated ten years later. His lawyers pointed to his grave intellectual disability, and John was sentenced to 35 years in prison. If his behaviour is good he will serve two thirds of the full term, so he could be released in 2030.

Felix Mawondo

The child of alcoholic parents, Felix contracted cerebral malaria in childhood, leaving him with a severe mental disability. In the year 2000 he took part in a robbery with two accomplices, which ended with the murder of a man. By the time he stood trial seven years later, three key witness for the defence had died from various diseases. These were his uncle, who could have shed light on his whereabouts on the night in question, and the other two men accused of the crime. The police argued in court that Felix had confessed at the police station, and that was enough for the judge, who condemned him to death despite his claim that he was tortured. After ten years on death row, he obtained a retrial in 2017, when he was sentenced to 20 years imprisonment to run as from the date of his arrest, which means he will finally be released in March 2020.

Maulana Chadmile

Maulana Chadmile was sentenced to death in June 2005 for the murder of his stepson during a psychotic break, when he confused the boy with a goat which he tried to scare away by throwing a brick. His psychosis was triggered a week earlier when his wife lost the child the couple were expecting after she had received a beating at the hands of her own mother. He came to believe that his son had been magically transformed into a goat by his mother-in-law. The new sentence handed down at his retrial in 2017 left him a free man when the defence lawyers succeeded in convincing the court that Maulana was bedevilled by mental disorder and intellectual disability.

Konikisi Sinkanawo

Born into a poor family, Konisiki had to work from childhood. He soon set up a small shop to help his mother. In 2001, Malawi was gripped by a devastating famine however, and one night a neighbour, Samson Bilati, proposed to Konisiki that they should sell some food he was planning to steal from his mother. Konisiki agreed, waiting by the door while Bilati entered the house. Once inside, Bilati attacked and killed his mother. He came out with three bags of rice and a packet of beans which the police would later find at Konisiki’s store. He was arrested and in 2005 he was sentenced to death. Bilati fled on the day of the crime and was never brought to trial. Konisiki was resentenced to 24 years imprisonment in 2017 and was released later in the same year.

Kenneth Langanwiya

On 29 January 1999, Kenneth and six other men broke into a secondary school to steal construction materials. They took the night watchman by surprise and tied him up, but they had already caused him serious injuries. The men stole several sacks of cement, some steel sheeting and a few cans of paint, all belonging to the school. The watchman died as a result of the injuries the thieves had inflicted on him. Kenneth was arrested and spent six years on remand until he was eventually tried in 2005. He was sentenced to death. He then stayed on death row for 11 years until the Kafantayeni Project took up his case and sought a retrial. His defence counsel informed the court that this had been his first offence. He had also given himself up voluntarily and had cooperated with the police. According to a statement given by the American psychiatrist George Woods, Kenneth suffered from mental blocking, a disorder that sometimes meant he had difficulty expressing himself in conversation and was easily manipulated by others, and it was therefore to be supposed that Kenneth had played a minor role in the crime. He was resentenced in June 2017, resulting in his immediate release from prison.

Grant Songa Gama

Gama had succeeded in buying land to plant rice in 2003. One day, he and a friend invited one of his employees to share their evening meal, but that same night a neighbour saw them burying the man’s lifeless body. No evidence was ever found to shed light on the manner of the luckless worker’s death, or indeed who was responsible. Nor were the motives for the crime ever cleared up. Gama was a quiet man, who had never had any kind of problems with the law despite his intellectual disability. After two years in jail awaiting trial, Grant Songa Gama was condemned to death in 2006. In 2017 he was granted a retrial and sentenced to 20 years’ imprisonment beginning on the date of his imprisonment, which resulted in his being set free immediately.

Reuben Ziwese

Naïve, impressionable and easily influenced because of his mental disability, Reuben Ziwese was only 16 years old when he fell into bad company. In 2001, Ziwese went on a road trip with Paul Phiri and Peter Banda, who had hired Victor Abel Chakhaza and his brother Hendrix to take them by car. When they reached their destination, Phiri and Banda attacked and stabbed the Chakhaza brothers. Victor managed to get away but Hendrix was stabbed and run over by his killers as he tried to flee. He died in hospital three weeks later. Phiri and Ziwese were arrested, while Banda escaped. After being held on remand for more than four years, the pair were tried and condemned to death in 2005. Phiri died in prison. Reuben was retried in 2017, however, and his sentence was reduced to 25 years. He was set free in March 2018.

Maison Nampanga and Cydreck Nambazo

Some time in the year 2000, three men broke into Rev. Effat Chatama’s home during the night. They had been hired to beat him up, apparently by an enemy of the preacher’s. He faced them down and they fled, but when he gave chase he slipped and fell, and his assailants turned and stabbed him. He bled to death. The only witness was a nephew of the reverend, who could not make out either the faces of the number of attackers. The first man to be arrested gave the police Maison’s and Cydreck’s names. Their confessions were savagely beaten out of them over several days at the police station. Maison Nampanga recalls that he thought they would kill him. The two were tried in December 2002. Maison and Cydreck shared a defence lawyer, but they saw him only once just minutes before the hearing began and he would not let them defend themselves. The pair were found guilty and condemned to death, although the sentence was commuted to life imprisonment a year later. The convicts sought an appeal in 2005 without presenting any mitigating circumstances, which was not allowed at the time. However, the appeal was not heard until 2009, after the Kafantayeni decision had been implemented. Rather than arguing their innocence, their lawyer sought a reduction in their sentences. In 2017, the Kafantayeni Project’s lawyers were still trying to secure a retrial, but the court had yet to decide whether the case could be tried again given that the appeal was heard after 2007. The two men continue to maintain their innocence. Both have AIDS and suffer from grave health problems.

Edwin Uladi, Mkoma Kaputeni and Stenala Nashele

Mkoma Kaputeni, Stenala Nashele and Edwin Uladi are all related. Mkoma and Stenala are half-brothers on their mother’s side, and Uladi is their maternal uncle, despite being the youngest of the three. In 2005, they were tried for the murder of Elias Nandolo after they had come to suspect that he had used witchcraft to kill Edwin’s older brother, Elias Uladi, with whom all three men had especially close ties. Elias was of course Edwin’s elder brother, but he had also taken charge of Nashele and Kaputeni as children when their parents died, becoming more a second father than an uncle.

A few days before the crime, Elias Nandolo and Elias Uladi got into an argument in the presence of various witnesses, who heard Nandolo tell Uladi that he would die in a car crash. The very next week, Elias Uladi was indeed killed in a traffic accident in Lilongwe. Uladi, Nashele and Kaputeni were horrified when they heard what had happened. Like many in the village, they firmly believed that Nandolo had used witchcraft to end Elias Uladi’s life. Even the village headman believed it.

Overcoming their fear, they approached Nandolo’s house with other neighbours to demand that he pay the cost of the funeral. Nandolo refused and threatened to curse them all. The men were terrified. Convinced that he would act on his threat, they chased him into the forest where they beat him to death with sticks.

The body was later found in a latrine. Someone had gouged out the dead man’s eyes. At least another three men were implicated in the killing, but only Uladi, Nashele and Kaputeni were arrested and brought to trial. After two years in prison, the three men were eventually brought to trial and were sentenced to death, as was then mandatory. However, the judge himself declared in open court that he had no wish to sentence the accused, regretting that he had no other option under the Penal Code. He noted that none of the three men had a criminal record, and that they could be said to have acted in self-defence insofar as they believed in witchcraft as an actual, present threat. He also encouraged the prisoners to appeal, although they never received any response to pleadings during their years on death row. They were finally granted a retrial in 2017 and sentenced to prison terms of 22 years each. They will be released in 2018.

Ishmail Gome

When his family’s poverty forced him to leave school at the age of eight, Ishmail went to work in the fields. He was the youngest of nine children and the only boy. Eventually, he became the family’s breadwinner. He married young and soon had five children of his own to feed.

In January 2004, Ishmail stayed to have a couple of beers with some friends after work. One of the group was Foliasi Chibwazi. On the next morning, Chibwazi was found dead with head wounds. The evidence found led the police to a nephew of Ishmael’s, who was immediately arrested. In his statement, the nephew admitted to the crime, but he also implicated his uncle.

Ishmail was arrested and confessed his guilt after a week and a half in holding, during which time he was repeatedly beaten and deprived of food. He was illiterate and was unable to read the statement that was written for him.

He was tried in October 2005 and sentenced to death. There was no physical evidence linking him to the crime, and no effort was made to corroborate the account given by his nephew, who was also convicted.

At last in 2015, the nephew declared that his uncle was innocent and admitted that it was he who had committed the murder because his grandfather had told him to. After thirteen years on death row, Ishmail was finally granted a retrial in May 2017 and was immediately released from prison.

Edwin Uladi, Mkoma Kaputeni and Stenala Nashele

In 2003, one Makina Pondani was accused by the victim’s family of a murder committed in 2001, based on his extensive criminal record, but in their declaration, they also implicated Jack Makasu and Daniel Teputepu in the crime. In the course of the trial held in 2005, Pondani appeared as one of the numerous witnesses for the prosecution. He insisted that Makasu and Teputepu had committed the murder, and the pair were eventually found guilty and sentenced to death. Pondani was found innocent. The pair spent eleven years on death row until the Kafantayeni Project took up their case. They were granted a retrial in 2017. As a result, Jack Makasu was resentenced to 27 years beginning on the day of his arrest, and his term will end in December 2019. Daniel Teputepu received 24 years, ending in May 2019.

Hastings Msiska

When Hastings Msiska’s father died, the family’s luck changed. The money ran out and the situation of Hastings and his siblings became ever more desperate. They were hungry and could find no work.

On 29 July 2003, Hastings, his brother Ronald Msiska and their cousins Christopher and Suzgo decided to rob the Muli & Brothers food store. According to an eyewitness account, Hastings’ brother Ronald, who was a policeman and was armed, fired twice at the lock on the door in order to force it open.

However, the store’s owner, Musalepo Chilipo, was crouching down behind the door and was killed instantly. There is no evidence that the killing was intentional. Despite the testimony of the eyewitness, who claimed Ronald was the ringleader and said that he had been accompanied by at least three men, Hastings Msiska testified that it was he who had committed the crime and without any help from his brother.

The four men were represented by the same lawyer at their trial, who decided to let Hastings Msiska shoulder all of the guilt for the crime alone in order to exculpate his brother and cousins. Hastings Msiska was held on remand for two months until in August 2003 he was tried and sentenced to death, which was mandatory at the time. His brother was absolved of all charges against him. His cousins, meanwhile, were convicted of armed robbery and sentenced to fifteen years in prison.

Hastings Msiska spent eight years on death row until his sentence was commuted to life imprisonment. On 30 June 2017 he obtained a retrial with the held of the Kafantayeni Project and was resentenced to 29 years’ imprisonment to run from the date of his arrest, which means he will be released in 2022.

Thomson Bokhoboko

Six women were found murdered in the same way between January and March 2000. All of them were strangled and stabbed, but in some cases their genitals and breasts were mutilated and their intestines were pulled out, while in others the abdomen had been cut open and their eyes were gouged out. The murders caused an enormous media impact, and the authorities put pressure on the police to arrest the perpetrators quickly.

It was not long before the police arrested Evance Solomon, aka ‘Sitenala’, who implicated Thomson Bokhoboko in the crimes under police torture. He also told the police that he had sold the victims’ organs to two men, Lewis Liviel Johnson and Samuel Chimwanza. ‘Sitenala’ died within a few days from the injuries he had sustained under questioning by the police.

On 4 April 2000, the police arrested Bokhoboko, Johnson and Ngole. All three swore they were innocent. Thomson Bokhoboko and Lewis Liviel Johnson were found guilty by the jury, however, and were sentenced to death, as was then mandatory. Samuel Chimwanza Ngole was absolved of the crimes. Bokhoboko’s sentence was confirmed on appeal, but Johnson’s conviction was overturned on the grounds that the courtroom testimony provided by Bokhoboko himself absolved him of any guilt.

Thomson Bokhoboko was kept on death row for nine months until his sentence was commuted to life imprisonment on 13 July 2001. On 23 May 2017 he was resentenced but again to life imprisonment. It is the only life sentence handed down out of all of the cases taken up by the Kafantayeni project.

Dr Nillungwe, psychologist, Dr Harris Chilale, psychiatrist at Hospital San Juan de Dios in Mzuzu and US psychiatrist Dr Richard G. Dudley interview Thomson Bokhoboko to assess his state of mental health. Zomba prison, 2016