Malawi: Discriminatory Sentencing Against Persons with Albinism

Salc : Staff Writer

SALC is working with the Centre for Human Rights Education, Advice and Assistance (CHREAA) and a private lawyer, Mr Daniel Kalaya, to review a discriminatory sentence against a man with albinism convicted of a criminal offence in the case of S v Precious Michael.

The appellant is a man with albinism who was charged with and pleaded guilty to being found drunk and incapable in a public place contrary to section 183(1) of the Malawi Penal Code. He was unrepresented at his trial. In determining his sentence, the Magistrates Court took into account the appellant’s albinism as an aggravating circumstance and sentenced him to a fine of MWK10,000.000 or six months’ imprisonment.

The appellant argues that the sentence imposed on him is unconstitutional and discriminatory on the basis of his albinism, as an independent ground of discrimination and concurrently as a disability. The Court’s reference to him as “pathetic” and its reasoning in the sentencing to impose on him a form of special moral responsibility due to his status as a person with albinism infringes his rights to human dignity and to equality before the law. He argues further that the Court impermissibly sought to use him as a scapegoat to deter other offenders despite that he was a first-time offender and failed to appreciate his albinism as a disability and as a mitigating circumstance. He argues that the sentence, being ten times the maximum penalty under the Penal Code and by imposing an impermissible custodial sentence for the offence in the alternative, is manifestly excessive and unlawful. He asks that his sentence be set aside.

The appeal was heard by the Thyolo High Court on 8 February 2017. Justice Kamanga delivered her judgment on the same day. The appellant’s sentence was declared illegal and excessive, exceeding the statutory maximum sentence. The Court set the sentence aside and ordered a reduced fine in the alternative. The Court, however, declined to declare the trial Court’s sentence discriminatory. A written judgment remains outstanding.

Court Papers

Appellant’s Skeletal Arguments

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