Legal Aid act dispute

By The Daily Times On Sep 16, 2021

Legal Aid Bureau officials recently impressed on Legal Affairs Committee of Parliament members the need to allow legal assistants unhindered access to magistrate courts, citing a backlog of over 23,000 cases that are yet to be disposed of by the courts. The bureau, which has 23 lawyers and 36 paralegals, proposed to Parliament to amend Section 14 of the Legal…

As debate on the proposal to allow paralegals to practice in subordinate courts rages, the State House has indicated that President Lazarus Chakwera is keenly following the issue as it affects the welfare of the citizenry.

The bureau, which has 23 lawyers and 36 paralegals, proposed to Parliament to amend Section 14 of the Legal Aid Act so that people that do not have legal representation can enjoy access to justice.

State House Director of Communications and Executive Assistant to the President, Sean Kampondeni, told The Daily Times that Chakwera was fully in favour of increased access to justice but would let stakeholders decide on measures to be adopted.

“It is something that he fully supports. It is not, however, something that involves one stakeholder. Some of the issues are legislative so that they are in the domain of Parliament and we cannot speak to that because Parliament is independent,” he said.

Kampondeni further said other issues related to how courts handle cases remain under the Judiciary, the only institution mandated to speak on the matter.

“Having said that, the President does not want to be involved in the debate but he believes that debate is healthy on anything that affects the Malawian people and he is monitoring that debate closely,” he said.

However, legal experts fear that giving paralegals the leeway to represent clients in subordinate courts would lower standards of the law profession.

The Malawi Law Society (MLS) recently issued a statement in which it claimed that the proposal intends to promote inequality, contrary to constitutional provisions that provide for equality before the law among the rich and the poor.

The statement, which MLS President Patrick Mpaka and Honorary Secretary Chrispin Ngunde signed, further warned that the proposal did not promote, but sought to, undermine alternatives set out in the law on legal representation for the less privileged.

“The proposal stands on shaky legal foundations at statute law as to the purpose disclosed for the amendment,” they said.

“The proposal seeks to take away from the less privileged what the Constitution has given to them at legal representation, legal representation by a legal practioner, not a legal assistant,” it added.

MLS then wrote Justice and Constitutional Affairs Minister Titus Mvalo and Speaker of Parliament Catherine Gotani Hara to “reign in on the bureau and the committee to follow the law”.

Meanwhile, law diploma holders from University of Malawi and Mpemba Law School have petitioned the Legal Affairs Committee of Parliament to facilitate the amendment of Section 11 of the Legal Education and Practitioners Act to allow them to practice in subordinate courts.

Spokesperson for the group Haneef Ngundende said barring them from practising in courts is one major factor blocking people from accessing justice.

“To put our grievances in perspective, we, the Diploma in Law holders, do not understand the reasons why we are not allowed to defend cases while most prosecutors who do not have law qualifications are allowed to prosecute, and are doing a commendable job,” the petition reads.

Legal Affairs Committee of Parliament Chairperson Peter Dimba said several stakeholders are in favour of the proposal, except for MLS.

“We intend to do a report and present it to Parliament during the November meeting and [we are] hoping [that it will] be adopted. We will then proceed with the process of coming up with an amendment bill to reflect stakeholders’ views,” he said.

As of November last year, the country had recorded 627,000 cases against 637 registered lawyers. The bureau argues that 90 percent of Malawians cannot pay for the services which private lawyers render.

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