The Malawi Law Society (MLS) has warned against the proposal to amend Section 14 of the Legal Aid Act to allow for legal representation of the marginalised and less privileged by paralegals (legal assistants).
Legal Aid Bureau and Legal Affairs Committee (Lac) of Parliament officials are advancing the proposal, arguing that it would improve access to justice among vulnerable people on remand, some of whom have been remanded for long periods due to lack of legal representation.
Judiciary records indicate that there are nearly 3,000 people that are on remand but have no representation.
Lac has been conducting public hearings across the country to solicit views on the proposal.
It will then come up with a report, which will contain recommendations to the Ministry of Justice to assist vulnerable people with minor offences access justice and, in the long run, help decongest the country’s prisons.
But, in a statement which MLS President Patrick Mpaka and Honorary Secretary Chrispin Ngunde have signed, the society warns that the proposal does not promote, but seeks to undermine, available 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,” the statement reads.
MLS argues that the proposal seeks to promote, entrench and formalise inequality between the rich and the less privileged at legal representation, contrary to the Republican Constitution which provides for equality before the law among the rich and the poor.
“The proposal seeks to take away from the less privileged what the Constitution has given to them at legal representation, by a legal practitioner, not a legal assistant,” the statement adds.
MLS says the Legal Aid Bureau was created under the country’s statutes to facilitate equality at legal representation before all courts in Malawi.
“Allowing the proposed amendment tips the balance of justice in favour of the rich in that the poor will have legal assistants at the bureau while the wealthy will have legal practitioners at their call and cost because they can afford to pay,” the statement reads.
MLS has since written the Minister of Justice and Constitutional Affairs Titus Mvalo and Speaker of the National Assembly Catherine Gotani Hara to “reign in on the bureau and the committee to follow the law”.
At a meeting late last month, Legal Aid Bureau officials lobbied stakeholders to allow paralegals to represent service seekers in a limited capacity.
The bureau’s director Masauko Chamkakala indicated that court cases would be expedited if paralegals were allowed to represent clients in courts of law.
“When you look at other public service providers, you will find that there are paralegals that are given the opportunity to represent clients in court. In the Malawi Police Service, for example, there are over 419 paralegals that work as persecutors. There are paralegals that work as magistrates and all we are asking is for our paralegals to take some of the cases to court in a limited capacity” he said.
According to the bureau’s records, there are 23,017 cases it is supposed to handle against its staff of 25 lawyers and 36 paralegals who cannot legally defend the clients.
Chamkakala argued that there are only 627 registered lawyers who cannot manage to service the 627,700 cases registered by the Judiciary as of November last year.
He further indicated that nearly 90 percent of the people in Malawi cannot afford charges which private practice lawyers impose on services.
Eric Msikiti is a Senior Reporter/News Producer at Times Group. Though relatively young, Eric boasts years of experience in Malawi’s media industry.