Pricey justice for Malawi
Nasibeko’s hope of ever seeing her husband, Davie Nkhalamba, is fading fast.
Nkhalamba has in the last six years been languishing at Zomba Central Prison, where he has been on remand since he was first accused of committing the murder of Dick Masikini back in 1999.
His Mangochi-based family is slowly giving up on his chances of being subjected to a fair trial or, at best, walking to freedom.
Court records indicate that over 2,000 suspected offenders of serious crimes are locked up in the country’s main prisons because the law bars them from standing trial without legal representation, which is not easy for the majority poor.
A pre-trail detention audit conducted by the Paralegal Advisory Service Institute a few years ago revealed that some suspects were spending up to 2,054 days or five-and-a-half years on remand, before their trial commenced.
Our research shows that pro-longed pre-trial detention is a contravention of the United Nations Standard Minimum Rules for the Treatment of Prisoners and the country’s Criminal Procedure and Evidence Code.
“The Criminal Procedure and Evidence Code, which was comprehensively amended in 2010, theoretically allows for speedy trials and places pre-trial custody time limits,” Malawi Human Rights Chairperson Justin Dzonzi points out.
Dzonzi further laments that despite, passing the Local Courts Act and the Legal Aid Act in 2011 to better the situation in Malawi, access to justice remains evasive for the majority poor.
Furthermore, section 42 (5) of the Malawi Constitution also obliges the state to provide legal aid to needy clients in both criminal and civil matters but justice remains a preserve of the privileged few.
Despite the prevalence of protective laws, poor people like Davie continue to suffer on remand before trial.
Free legal help, although guaranteed in the law, remains inaccessible to many, mainly due to funding woes and limited members of staff at the Legal Aid Bureau.
In the 2016/2017 financial year, for example, the Legal Aid Bureau was given K130 million against a budget of K1.2 billion.
With such a deficit in funding, the bureau’s nine staff members were expected to handle a caseload of 2,000 per month to ably serve those who are on the brink of suffering greater injustice at the hands of those tasked to ensure that the waters of justice flow unceasingly.
For the bureau, nothing has really changed as K500 million has been set aside for legal aid errands in the 2017/2018 fiscal year. This represents per capita legal fees of K34 per person.
In the wake of the critical shortage of legal aid lawyers in the country, the road to justice may remain bumpy for the majority poor. Indeed, efforts aimed at getting legal representation in either criminal or civil cases are akin to squeezing water out of a marble stone.
Overall, the Malawi Law Society (MLS) boasts of a measly 358 lawyers, down from the 377 lawyers who were licensed to practice in the country’s courts in 2016.
Based on the current numbers, every lawyer represents 47,500 Malawians out of a population of 17 million people.
Furthermore, the country boasts of 23 High Court judges in Blantyre, four in Zomba and one in Mzuzu.
A majority of the licensed practitioners are concentrated in major cities of Blantyre, Lilongwe, Zomba and Mzuzu – most of them working for law firms or body corporates.
Our analysis based on a list of licensed practitioners for 2016 to 2017 released by the MLS indicates that 126 lawyers are based in the capital, Lilongwe, representing about 33.4 percent, Blantyre has 58 percent—a lion’s share of 219 lawyers — 4.2 percent of the country’s lawyers are based at the centre of legal training in Zomba, where there are 16 practitioners, and Mzuzu boasts of 14 practitioners, representing 3.7 percent of the country’s licensed legal fraternity.
However, our probe has established that lack of lawyers on the Malawian bench can not be blamed o lack of qualified lawyers per se, but strict red tape and bureaucracy in admitting law graduates trained elsewhere to the local bar.
Under the Legal Education and Legal Practitioners Act, a person who studied law outside Malawi cannot practice law in local courts unless they pass the notoriously challenging Bar examinations.
Law graduates from the University of Malawi are, however, exempted under the Act.
We understand that there are more than 1,500 law graduates in the country – mostly graduates from education institutions in South Africa, Zimbabwe, Zanzibar, Uganda and the United Kingdom.
“There is need for reforms. The current situation makes access to justice a challenge for Malawians,” said human rights defender Emily Mkamanga.
Some have also wondered why local private universities are not allowed to offer accredited law programmes as the country seeks to bridge the wide, yawning lawyer-client gap.
For example, Blantyre International University (BIU) has a Bachelor of Law degree programme which remains unrecognised under the Legal Education and Legal Practitioners Act. The programme has since been scrapped off the list of accredited courses by the National Council for Higher Education.
“This kind of regulation defeats the purpose of liberalisation. There is need to enact the amended Legal Education and Legal Practitioners (Amendment Bill) revised some 12 years ago,” BIU Chairperson, Charles Chanthunya, is quoted as telling Malawi News.
There are fears that the strictness attached to admitting lawyers to the bar in Malawi could create a culture of wealth creation, other than the administration of justice.
Malawi’s quest for equal justice for all will remain futile if the country’s prisons remain homes for poor people like Nkhalamba, who only know the day they were detained but not the probable date of appearing in court.
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