The Abolition of the Mandatory Death Penalty in Africa and the Resentencing of the Innocent

The abolition of the mandatory death penalty in Africa has triggered resentencing processes for offenders on death row. Resentencing courts proceed on the basis that an offender is guilty; they are trial courts thus are not empowered to revisit the verdict. What should happen when a resentencing court opines that an offender is innocent of murder? Drawing from the experience in Malawi, this paper argues that a resentencing court has no more jurisdiction to impose a sentence on an offender than a trial court has to sentence an accused it acquits. Therefore, African nations that strike down the mandatory death penalty must provide for a procedure to provide exceptional circumstances in which a resentencing court can reconsider the conviction of the offender. The resentencing process calls for courts a proactive approach in achieving justice and upholding the rights of prisoners previously sentenced to the mandatory death penalty. At the very least, a court which realises that the accused is in fact innocent must not impose any further punishment on them because it then has no legal basis for knowingly sentencing an ‘innocent offender’. It is never justifiable to knowingly punish the innocent.