Alexious Kamangila, once Dr Madise’s student has been having fierce gloves out fight, indirectly debating on facebook on whether ‘the Unconstitutionality of Death sentence’ will stand following the ‘Khoviwa’ Judgment.

While Alexious Kamangila says the death penalty has been declared rightly so as unconstitutional as it has always been, Dr Madise supports states that death penalty still stands and can be given by Court as early as today.

In his recent post, Dr Madise stated that whatever has been written or said in addition to the right  to a Sentencing Rehearing in the Khoviwa case is either obiter dictum(things said by the way) or per incarium (wrong at law) . ‘The issue of the constitutionality of the death sentence was never before the court at all. It is therefore wrong, in my view, to say the SC has in this case declared the death sentence unconstitutional. The issue before the Court was, whether Khoviwa, having been sentenced to death under the mandatory death penalty, the convict should be given a rehearing since mandatory death penalty was abolished by the Kafantayeni judgment. The Court decided that Khoviwa and the 8 others, are entitled to a Sentence Rehearing.’


Alexious Kamangila argues that the questioned question was before the Court. The applicant’s main plea was; where the right to life is being limited, seeking the Court to consider individual circumstances was basic requirement.The submissions b4 High Court contained discussion on the Constitutionality of the death penalty. These were adopted at the MSCA. But even of such was not the case, under Order III Rule 13, the Supreme Court has powers to decide on a point of law needing settlement without asking the parties to address them (after 29yrs of de facto Moratorium,  the need was dire).The judgment’s long discussion of Section 16 as read with 44 and 45 vis-a-vis penal code, is clear for anyone that has read the judgment that the constitutionality of the death penalty therein can’t be obiter or per incarium.

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