The last court-imposed execution was carried out in Malawi during 1992. Some 15 people were on death row at the end of 2017, and though the number has increased since then there have been no further hangings. However, the question of whether the death penalty will ever actually be carried out has now been given a new urgency, following the sentence of a man convicted for murdering a fellow villager with albinism in the apparent belief that this would make him rich. Sentencing the accused, the judge reasoned that the whole country lived in fear because of “devilish, primitive” crimes against albino people, and that the courts had a duty to impose the ultimate sentence as a deterrent.

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In his life, Mphatso Pensulo, 19, may not have been well known outside his home village of Mulonda. His gruesome death, however, has made his name famous throughout the world.

From Japan to South America, the media has carried stories about his murder and the conviction and subsequent sentencing of his killer, Willard Mikaele, 28. What has made Pensulo’s name so well known is the fact that this was a young man with albinism, and was killed because of that simple fact.

Pensulo is not alone in this fate. Between 2013 and 2019, at least 26 people with albinism in Malawi have been killed and 130 others injured in attacks based on the superstitious beliefs held by some in Malawi and elsewhere, that the body parts of people with albinism can be used in powerful rituals to bring wealth and luck. The country’s community of people with albinism are living in terrible fear as a result. But despite the growing numbers of attacks on albino people and government’s fulminations over these atrocities, conviction and sentence are comparatively rare. In Mikaele’s case, however, not only was he arrested and charged soon after Pensulo’s death, but the trial resulted in a conviction and in a sentence that has made world headlines.

Judge Maclean Kamwambe, who convicted Mikaele on 19 March 2019, was back in court this week to pronounce on the fate of Pensulo’s killer.

The facts of the case were simple and stark. Mikaele, a barber from Mulonda Village, met a “herbalist” in Mozambique who told Mikaele that if he wanted to get rich, he should “kill a person with albinism” and advise the herbalist once he had done so.

On 10 January 2017 Mikaele met Pensulo at a local market. The two came from the same village and Mikaele seems to have marked Pensulo, as a person with albinism, as his victim.

Mikaele bought some fritters and shared them with Pensulo, then they went back together to Mikaele’s home. Inside the house, Mikaele strangled Pensulo, buried his body inside the house, locked the front door and then left for Mocambique, eager to tell the herbalist what he had done and then to reap the riches he had been promised.

But a neighbour had seen the two men going into the house together and had heard the younger man’s screams, and so when she noticed Mikaele leaving the house in a great hurry she raised the alarm. It did not take long to find the body and Mikaele was arrested in Mocambique two days later.

Judge Kamwambe said the Penal Code provided that anyone convicted of murder would be given either the death sentence or life imprisonment. Previously the death penalty was mandatory but this was changed to ensure the discretion of the courts was not infringed. Since then, the courts had been free to consider any appropriate sentence.

Though the death penalty was no longer mandatory, courts should not shy away from imposing it “under the pretext that (it is) inhuman, cruel and (infringing on) human dignity.” There were times when such a sentence was “unavoidable”, said the judge. A court should not be quick to impose capital punishment, he said, and should first be satisfied “that the circumstances warrant” the death penalty.

It should be imposed only in the “rarest of the rare” cases and where the offence is one of the worst of its kind, with no hope of reforming the offender because of the nature and gravity of the offence. A judge who found there were exceptional circumstances, and that the case was “the rarest of rare”, should not hesitate to impose the death penalty.

In the case of Pensulo’s killing, it was premeditated, and his killer sought him out “so as to get rich fast”. Though Mikaele was a first offender and pleaded guilty, he did not show remorse. He could not avoid being linked to the crime since the body had been exhumed from his own house with strong evidence that he had been the killer.

True, courts did not readily impose long sentence for first offenders but this did not apply in “serious offences committed in bizarre circumstances”.

Mikaele had accompanied his victim to the house, knowing he was going to kill him, all the while trying to make Pensulo feel safe. “This is the dreadful situation that people with albinism are in. They are very unsafe because it is people who know them well that are prone to attack them. They cannot trust anybody. They would wish they found refuge in other countries where this belief that albino body parts are wealth, does not exist.”

Mikaele committed “a heinous offence”: killings and assaults of people with albinism had so increased that it tainted the image of Malawi as “the warm heart of Africa”.

People who shared in this belief about the wealth that would come from the body parts of those with albinism were “lurking” all around and could surprise with new attacks. The “war” against such people had not ended, and Malawi was reduced to a state of terror. The threat was so great that government was even providing gadgets for people with albinism to attach to their bodies so they could call for help if attacked, and the courts had to play their part in protecting people.

The judge said he considered Mikaele’s case as deserving the ultimate sanction: “The motive … was as devilish as it is primitive.” The public would be relieved by the imposition of the death penalty “after so much anxiety” and it would send a message to others contemplating such a crime that they should expect a similar sentence.

But the judge’s sentence may well never be carried out: Malawi has not executed anyone on death row for many years. Nevertheless, the sentence met with criticism from Amnesty International and others who, while abhorring the murders of people with albinism, are also dedicated to ending the death penalty.

*Newsletter, Judicial Institute for Africa (Jifa), 8 May 2019