The Judiciary and Legal Aid Bureau face a daunting task of retrying cases which one of the bureau’s legal assistants handled despite reportedly having no requisite qualifications and competence to represent clients in court.
This comes as debate rages on whether Parliament should amend some provisions of the Legal Aid Act to allow paralegals, or legal assistants, to represent clients.
The legal assistant, Molly Nkosi, is said to have been handling court cases for the past four years but a High Court Judge has questioned her competence.
In a ruling on the application for bail pending appeal in the case of Shuba Amidu versus the State, which Judge Chifundo Kachale made on July 16 2021, the High Court found that Nkosi was not supposed to represent clients.
“It has transpired that Ms Molly Nkosi, who appeared as counsel for the applicant, does not have requisite qualifications to practice as a lawyer having not been admitted to the bar as per the relevant legislation. In that scenario, the court lacks competence to argue the case before me. The present proceedings are therefore set aside on that basis.
“The Legal Aid Bureau may assign a different legal practitioner to argue the case. When that is done, let counsel file a notice of adjournment to reschedule the process. By copy of this order, the Registrar is required to ensure that, in the interest of justice, all court processes handled by the said Ms Molly Nkosi are promptly regularised by the Legal Aid Bureau,” Kachale said.
In another ruling on application to set aside a default judgement in the case between McDonald Mayuni and Platinum Finance Limited made on August 11 2021, Judge Charlotte Wezi Malonda rejected the application saying Nkosi, who was representing the claimant, did not have requisite qualifications.
Registrar of the High Court and Supreme Court of Appeal Gladys Gondwe asked for more time to understand what was happening on the ground regarding the order.
Legal Aid Bureau Director Masauko Chamkakala said, by the time the bureau recruited her, it believed she was qualified to work as legal assistant.
“The provision they are talking about was made in 2019. So, if I were to respond to the [issue of] technicality, I would say, does this provision only apply retrogressively? The ruling came from the court so it is the courts who are supposed to say [what] they mean really.
“Again, if you look at the judgements, they were made months ago and I do not know why they are coming up now,” Chamkakala said.
Asked if the two judgements have come to light because of the debate on whether legal assistants can represent clients in court, Chamkakala said he would like to believe that the two issues were not related but said it would be unfortunate if they were to be related.
“I don’t know what they mean by competency because, throughout her stay with the bureau, she has won cases even against the so-called qualified lawyers,” he said.
Last week, Legal Aid Bureau and Legal Affairs Committee of Parliament officials said amendments to the Legal Aid Act would help in clearing a backlog of 628,000 cases that accumulated in the country’s courts of law by 2020, adding that doing so would be for citizens’ benefit.
The two institutions are advancing the proposal, arguing that it will improve access to justice among vulnerable populations on remand in prisons by allowing legal assistants to represent them.
However, the proposal has not gone down well with the Malawi Law Society (MLS), which argues that attempts to amend Section 14 of the Act do not promote, but seek to undermine, available alternatives set out alternatives set out in the law on legal representation for the less privileged.
MLS President Patrick Mpaka and Honorary Secretary Chrispin Ngunde indicated, in a statement recently, that the Republican Constitution provides for legal representation by a legal practitioner, and not a legal assistant.
“The proposal stands on shaky legal foundations at statute law as to the purpose disclosed for the amendment,” the statement reads.
“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 Practitioner, not a Legal Assistant,” the statement adds.
MLS has since written the Minister of Justice and Constitutional Affairs Titus Mvalo and Speaker of Parliament Catherine Gotani Hara to ‘reign in on the Bureau and the Committee to follow the law’.
However, Chamkakala told The Daily Times recently that there are people who have been doing a commendable job despite that they are not lawyers.
“This is not new; the over 419 police prosecutors who are not lawyers are successfully prosecuting cases and lay magistrates in districts across the country are not lawyers but they can mete out sentences of up to 10 years imprisonment. As such, paralegals can effectively represent Malawians,” Chamkakala said.
Legal Affairs Committee of Parliament Chairperson Peter Dimba recently described the MLS statement as misinforming.
“Suffice it to say that, at this point, their arguments are very strange, full of misinformation and lack pragmatism. For instance, they say the committee cannot provide oversight to the Legal Aid Bureau when, in fact, the law, through Standing Order 159, gives the committee the mandate to provide oversight over the bureau,” Dimba said.
At 627, Malawi has one of the least populations of licenced lawyers in the region.
With a population of between 18 to 19 million people, the lawyer-client ratio in Malawi is at 1:30, 000.