Malawi

1. GENERAL INFORMATION

The question of access to justice in Malawi is a constitutional matter. The Malawi Constitution under section 41(2) states that every person shall have access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues. It goes further to state that an accused person has a right to fair trial which shall include the right to public trial before an independent and impartial court of law within reasonable time after having been charged.[1] However, a study conducted by Wilfred Scharf, Chikosa Banda and others on access to justice for the poor of Malawi showed that the courts which are closest to people in rural areas, who are mostly poor, are poorly resourced, poorly managed and offer a limited range of services.[2] It was also noted that these courts offer limited services mainly because of jurisdiction issues. Courts found in rural areas are subordinate courts and they have limited jurisdiction. As such, they cannot hear and determine certain cases. In addition, most remote courts operate at the pleasure of the magistrate, who is in most cases hardly there to hear cases. Additionally, it was discovered that the further away from urban or semi-urban setting, the less the people use subordinate courts despite the population density. This is attributed by several factors including; lack of awareness on the part of the community, as most people do not know the kind of cases to bring to the attention of the courts, and most communities do not regard the court as relevant to their needs. Secondly, there is lack of support services for example, paralegals, police officers and prosecutors who can generate work for magistrates and lastly, lack of trust of the communities in the above mentioned institutions.[3]

Malawi is a developing country and is ranked by the International Monetary Fund (IMF) as one of the poorest in the world, with 50% of the population classified as poor with 24% of that ground being classified as living in extreme poverty.[4] As such, access to justice has serious competing requirement the government has to attend to. Eventually government focuses with emphasis other social services and infrastructure development as opposed to access to justice issues. It is for this reason that the budgetary allocation to access to justice remains a challenge.

Of late, governments access to justice policy in Malawi generally focuses on the functions of the courts and the introduction and expansion of legal services. This is why Malawi has recently developed its own High Court, Civil Procedure Rules, revised the Legal Aid Act, Legal Education and Legal Practitioners Act among others to regulate the functioning and processes to be followed by the courts and the legal service providers.

With the levels of poverty so high, the situation of poor people in as far as access to justice is concerned is even dire. The government has taken note of this situation and responded by revising and re-enacting the Legal Aid Act. The Act establishes the Legal Aid Bureau as an independent institution which is tasked to provision of legal aid services to the vulnerable. Since its inception in 2015, the Bureau has strived to provide legal services to persons who cannot afford private legal services in Malawi including, women, children, persons under incarceration, minorities, and immigrants among others.

The Bureau has, using the guidance of the constitution, ensured access to justice without discrimination by ensuring equal access to justice for minorities, immigrants, or indigenous people as the constitution provides that discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, birth or other status.[5]

The constitution goes further to state that legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.[6] This provision deters authorities and people in general from treating others in a different and unequal manner. Equal treatment of people in every aspect of life promotes equal access to justice for everyone.

2. LEGAL AID SYSTEM

2.1. History of legal aid

Legal aid scheme is an organized way of providing an allay of legal aid services to people who cannot afford to hire private legal services from private legal practitioners. The concept of legal aid has been in existence in Malawi for decades. Legal aid scheme has been recorded as early as the end of the Second World War. The earliest statute providing for an organized legal aid scheme was the Poor Prisoners Defense of 1945.[1] The purpose of the Ordinance was to provide for the representation of poor prisoners before the High Court.

The operation of the Ordinance was limited to criminal trials before the High Court and did not extend to civil trials or to criminal trials before Magistrate Courts. The revised Ordinance of 1957 extended the scope of legal aid to offenses triable by Magistrate Courts as well as to appeals before the Federal Supreme Court.[2] This scheme was unsatisfactory in a number of ways as there was no provision under which a prisoner could, on his own motion, obtain the services of a legal practitioner at public expense. Even assuming arguendo that the prisoner could apply to the trial judge or Registrar for aid, there was no appeal from the decision of either. Secondly, the kinds of offenses for which a certificate for legal aid might be given were not clear, and the principles on which it was given, namely the interests of justice and the means of the prisoner, suggest that such aid was recommended only in serious criminal cases. Lastly, the successful administration and operation of the legal aid services needed the cooperation of the bar or Law Society; the government made the choice of the legal practitioner to undertake this work, and the practitioner had to be available. However, given the small size of the bar, it was often difficult to obtain a lawyer.[3] As such, the Legal Aid Act of 1964 repealed the Poor Prisoners Defense Ordinance of 1957.

The Legal Aid Act extended legal aid to civil as well as criminal cases and established the Legal Aid Department, to discharge more efficient services to the country. The Legal Aid Department was under the Ministry of Justice and under the general direction of the Minister responsible, and was headed by Chief Legal Aid Advocate. As a Department under the Ministry of Justice and Constitutional Affairs, there was interference in the administration of legal aid. To deal with this problem, the Legal Aid Bureau was formed and established under the Legal Aid Act, No. 28 of 2010 as an independent national institution, taking over from the new defunct Legal Aid Department under the Ministry of Justice and has been functional since 2015.[4]

It can be noted from the foregoing that there has been a significant reform and restructuring of the national legal aid system since it started after the second world war in 1942. What started off as a scheme for prisoners for limited criminal matters has evolved into a comprehensive scheme now being managed by an independent public institution.

Malawi gained its independence in 1964 from Britain, and this was the formal beginning of democracy. It is in this same year that the first Legal Aid Act of 1964 was enacted, establishing the Legal Aid Department within the Ministry of Justice giving legal aid power to handle both criminal and civil cases, from just helping poor prisoners with serious criminal matters as it was the case under the Poor Prisoners Defense Act No. 19 of 1945. As the democratic dispensation matured, so did the issues surrounding access to justice which resulted in the repealing of the 1964 Legal Aid Act and introduction of the new Legal Aid Act of 2010.

The 2010 Act establishes Legal Aid Bureau to play a major role ensuring access to justice, equal access to courts, and fair trial rights in Malawi. It strives to provide quality legal aid services to the nation, particularly to those who are less privileged and cannot manage to engage the services of private legal practitioners, by providing an allay of services including legal representation, legal advisory services, legal assistance and legal literacy services.

2.2. The legislative framework for legal aid

The Malawi Constitution sets the tone for the legal aid scheme in Malawi. It provides for the right to access justice which is bestowed on everyone.[5] The Constitution further provides that the State should provide legal services to persons who have been arrested but cannot afford legal services. This blueprint has been expanded under the Legal Aid Act of 2010 which is aimed at making provisions for the granting of legal aid in both civil and criminal matters for people of insufficient means.[6]

Among other important things, the Act establishes the Legal Aid Bureau[7] as an independent national institution[8] mandated to provide legal aid services to people who cannot afford legal services in the country.[9] The Act, for the first time mandates the setting up of district legal aid centers across all administrative districts[10] of the country over and above the regional offices[11] where the predecessor Legal Act Department traditionally operated from. The Act further sets up the Legal Aid Fund[12] which is meant to be a basket of funds to facilitate the provision of legal aid services.

2.3. Institutional framework for legal aid

The Malawi Legal Aid Bureau is the public statutory institution that is mandated to administer the legal aid scheme in Malawi as per the prescripts of the Legal Aid Act of 2010. As indicated earlier on, the Bureau has four regional offices in all the four regional justice administrative centers and it is in the process of opening the district legal aid centers in the 28 administrative districts in the country as it has chief responsibility for the organization and provision of legal aid to individual clients.

The Legal Aid Bureau works hand in hand with other stakeholders with the aim of ensuring that the legal aid scheme is being administered effectively. Firstly, the Legal Aid Act of 2010[13] allows the Judiciary to recommend to the Bureau to provide legal representation where the court notices that in the interest of justice, a party before it will require legal representation. The Bureau also interfaces with other public institutions like the Malawi Human Rights Commission (MHRC), the Ministry of Gender, the Malawi Police (Victim Support Unit and Public Prosecutions), the office of the Ombudsman who routinely refer cases which require legal representation to the Bureau. Traditionally, the Bureau has also worked with the office of the Administrator General in dealing with deceased estates and the Labour Offices in relation to industrial relations disputes.

In a clean break-away from tradition, the Legal Aid Act allows the Bureau to cooperate with civil society organizations[14] and to enter into agreements with cooperating partners[15] for the purpose of enhancing the provision of legal aid in the country. Noting that there are a multiplicity of civil society and government institutions currently impacting on the provision of the legal aid services in the country, the Bureau has established the National Legal Aid Coordinating Committee. The aim of the committee is to coordinate the activities of the various players in the legal aid sector. This is intended to ensure unity of purpose, cohesion, effectiveness of provision of legal aid in the country.

Currently there are over twenty member institutions to the committee headed by the Director of the Legal Aid Bureau and with the Bureau itself as secretariat. At the moment the membership of the committee include; the Inspectorate of Prisons, the Judiciary, the Malawi Police Service, Paralegal Advisory Service Institute, the Irish Rule of Law Program, the office of the Ombudsman, the Malawi Law Society, the Women Lawyers Association, the University of Malawi (Law Faculty), the Malawi Human Rights Commission, the Center for Human Rights Education, Advice and Assistance, Ministry of Gender, the United Nation Children’s Fund, the Center for Human Rights and Rehabilitation, Youth Watch Society, the Women and Law in Southern Africa Research and Education, and Byounique Trust.

As already indicated, the Legal Aid Bureau is an independent institution and is not linked or subordinated to other state bodies but is however a department of the government,[16] and as such, the government is the main source of funds for Legal Aid. Apart from the government, the Bureau has other means of acquiring resources needed for the administration of the legal aid scheme. These include resources from cooperating partners, contribution collections from clients, costs awarded to the Bureau, among others. Currently, aside from government funding, the Bureau is benefitting from the European Union funded programme called Chilungamo (Justice and Accountability) programme which is funding several activities being undertaken by the Bureau.

Despite being a department of the government, Legal Aid Bureau exercises its powers and performs its duties and functions independent of the interference or direction of any person or authority.[17] The Legal Aid Act provides limitations to the powers of the Bureau in the sense of the types of cases it can or can’t handle.[18] For instance the Bureau cannot handle electoral matters, insolvency, foreclosure, transfer of property and indeed defamation cases among others. The Bureau therefore takes up matters against the government, corporations, even politically connected personalities so long as it is within the prescripts of the Legal Aid Act.

2.3.1. Administrative structure of the Legal Aid Bureau

The Legal Aid Bureau is headed by the Director and the Deputy Director[19] who are appointed by the Parliamentary Public Appointments Committee after competitive interviews.[20] The vacancy for the office of the Director and Deputy Director are publicly advertised and eligible candidates[21] apply and are interviewed by the committee. The Directors’ have a five year term of office and may serve a further term.[22] The Directors may also be removed from office on grounds including incompetency, gross misconduct, incapacity, among others as stipulated under the Act.[23]

The Director is responsible for the recruitment of other officers of the Bureau who assist him in the executing of the mandate of the Bureau as prescribed under the Act[24] including formulating the terms and conditions of service for these officers.[25]

2.4. Legal aid budget

Legal Aid is principally funded by the Malawian Government. Of course as already alluded to, the bureau also has other means of acquiring resources needed for the administration of the legal aid scheme. As an independent institution, the Legal Aid Bureau has its own budget vote in the National Budget of the country. The budgetary process requires each institution to formulate and submit its estimated budgetary requirements for the particular financial year. These estimates are submitted to the Ministry of Finance which then consolidates these submissions. Invariably the submissions are higher than the national revenue and the Ministry of Finance trims these budgets to fit the anticipated government purse.

The trimming process involves the respective institutions in that the institutions are requested to rework their submission to fit with the institutional ceiling. It has always been the experience that the proposed budget is reduced. The tables below demonstrate how much the Bureau had expected to get compared to what the final budget provided.

2015-2016 Financial Year
Approved Budget Ceiling	MWK $384,661,844.00
Revised Budget	MWK $384,661,844.00
Funds Allocated	MWK $318,639,503.13

 

2016-2017 Financial Year
Approved Budget Ceiling	MWK $413,163,915.00
Revised Budget	MWK $382.938,773.00
Funds Allocated	MWK $382,797,488.00

 

2017-2018 Financial Year
Proposed Budget	MWK $945,806,650.00
Approved Budget Ceiling	MWK $493,700,564.00
Revised Budget	MWK $500,477,500.00
Funds Allocated	MWK $285,708,789.00

 

2018-2019 Financial Year
Proposed Budget	MWK $1,645,456,500.00
Approved Budget Ceiling	MWK $730,000,000.00
Revised Budget	MWK $730,000,000.00
Funds Allocated	MWK $483,197,693.00

 

2019-2020 Financial Year[26]
Proposed Budget	MWK $800,580,226.00
Approved Budget Ceiling	MWK $293,996,656.00
Revised Budget	MWK $800,580,226.00
Funds Allocated	MWK $552,354,539.00

From the above, we can see that the proposed budget for 2018-2019 financial year was MWK $1,645,456,500.00, which is approximately USD $2,193,942.00. While the allocated funds were MWK $483,197,693, which is approximately USD $644,197.59.

The proposed budget for 2017-2018 financial year was MWK $945,806,650.00, which is approximately USD $1,261,075.53 and the allocated funds were MWK $285,708,789.00, which is approximately USD $380,945.05.[27]

The estimated budget for 2016-2017 financial year was MWK $413,136,915.00, which is approximately USD $550,849.00 and the allocated amount was MWK $382,797,488.00, which is approximately USD $510,396.65.[28]

The estimated budget for 2015-2016 financial year was MWK $384,611,844.00, which is approximately USD $512,815.79 and the allocated amount was MWK $318,639,503.13, which is approximately USD $424,852.67.[29]

The reworked institutional budget is then presented to Parliament where in some instances the institutional allocations may be changed. Once the national budget is approved, each institution is advised on their final annual budget. However, this budget is only a general guidance on the amounts of resources an institution will get in the year as this may be reduced or increased depending on the revenue performance of the national budget as well as demands from other institutions. The national budget mid-term review serves this purpose. This process realigns the budgetary assumptions and performance. Specifically, for the Legal Aid Bureau, the budgetary disbursements have always been much lower than the budget and perhaps much lower than any other institution in the public justice sector. The Bureau remains one of the poorest resourced government institution. The disbursements levels have been alarmingly low. The table below show the disbursement trends since 2017 to date.

Financial Year	Description	Amount
2017-2018	Approved Budget	MWK $500,477,500.00
	Disbursed	MWK $285,708,789.00
	Disbursement %	57%

 

Financial Year	Description	Amount
2018-2019	Approved Budget	MWK $730,000,000.00
	Disbursed	MWK $483,197,693.00
	Disbursement %	66%

 

Financial Year	Description	Amount
2019-2020[30]	Approved Budget	MWK $800,580,226.00
	Disbursed	MWK $256,636,395.00
	Disbursement %	32%

Clearly from the funding trends, the Legal Aid Bureau does not have adequate resources to effectively execute its mandate as prescribed under the law. It is for this reason that the Bureau in conjunction with its stakeholders have embarked on innovative ways of maximizing the little resources in a bid to enhance its service delivery. One of such innovations is the camp courts. This method, the Paralegal Advisory Services Institute (PASI) undertakes a scoping exercise in various prisons to identify persons who may need various legal remedies. These are then compiled and shared with the Legal Aid Bureau, the State Prosecutors and the Judiciary. A date when the judge would be available to handle all the applications is then set. During a single camp court day, a judge can handle upwards of 10 cases. Court orders on these matters are instant. This method not only shortens the trial period, but also very cost effective on the part of the Bureau and its stakeholders.

Further to this, the new Legal Education and Legal Practitioners Act provides for the requirement for all legal practitioners in the country to undertake at least 24 hours pro bono work. The Legal Aid Bureau is tasked with the mandate to coordinate this pro bono scheme. This has opened a much needed resource in terms of personnel to handle legally aided persons in the country.

The Bureau is also mandated to collect a modest contribution from some of its clients depending on their means of income and nature of case.[31] This has allowed the Bureau to raise resources which form part and parcel of the Legal Aid Fund.[32]

Again, since funds are not enough, the Bureau asks people that come in seeking legal aid to contribute any amount of money they think they can manage to the Bureau and those that cannot manage to make any contributions to the Bureau are also helped without prejudice.

2.5. The legal aid providers

Section 16 of the Legal Aid Act provides for the four forms of legal aid the Legal Aid Bureau is mandated to provide to its clients. These are legal advisory services, legal assistance, legal representation and legal literacy services. With this array of services, there is also a need for technical officers who can provide these services. These range from the Directors, Chief Legal Aid Advocate, Principal Legal Aid Advocates, Senior Legal Aid Advocates, Legal Aid Officers and Assistant Legal Aid Officers. The Act provides for office of the Director and Deputy Director which aside from being responsible for the administrative and strategic direction of the Bureau, are also responsible for providing the legal aid service. It is for this reason that the Legal Aid Act stipulates that the Director and Deputy Director should be qualified to practice as a legal practitioner under the Legal Education and Legal Practitioners Act of Malawi with experience of at least 10 years.[33] The Directors are therefore involved in legal representation and other forms of legal aid services.

Further to this, the Act provides for the appointment of Legal Aid Advocates and Legal Aid Assistants who are recruited to assist the Directors provide legal aid services.[34] Administratively, the Legal Aid Advocates include Chief Legal Aid Advocate, Principal Legal Aid Advocates, Senior Legal Aid Advocates. These are qualified lawyers entitled to practice as legal practitioners under the Legal Education and Legal Practitioners Act. In the same way, Legal Aid Assistants include Legal Aid Officers and Assistant Legal Aid Officers. These are officers qualified in law but not yet admitted to practice as legal practitioners. These provide the necessary legal research, legal drafting and other such support to the advocates.

Being a public institution and also as guided by the law, all officers responsible for the provision of legal aid services are recruited following a transparent recruitment process.[35] In practice, vacancies for Legal Aid Advocates and Legal Aid Assistants are advertised in the local newspapers and indeed on online recruitment platforms. Anyone interested makes written application which is accompanied with curriculum vitae and copies of academic qualifications. These are sent to the Human Resource Unit through the office of the Director. Eligible candidates are shortlisted and called for interviews, which are conducted by the Interviews Panel of the Bureau. The Interview Panel is traditionally a combination of Bureau staff and others from relevant institutions outside the Bureau. Successful candidates are then offered the position they were interviewed on.

The interviews or tests for recruiting staff members of the Bureau are not necessarily difficult. This is so because the questions that are asked in the interviews basically come from the job description or duties that are laid down in the vacancy adverts. As such, if one thoroughly understands the job description outlined in the vacancy advertisement, then it easier for that particular person to pass the test.

Just like most public institutions, the Legal Aid Bureau struggles to attract technical professionals, this case lawyers. There is a perception that lawyers in private sector are better remunerated than those in the public service. With this in mind the Bureau has sought to negotiate for incentives for the lawyers which including negotiating for remuneration which is slightly higher than that of other public institutions. Curiously, there is an established phenomenon that the best private practice lawyers always start off at Legal Aid Bureau. This is because of the volume and multiplicity of claims. Thus, Legal Aid is the best training ground for litigation skills.

The remuneration Legal Aid Advocates get paid is not the payments under the Minimum Scale of Charges for Legal Practitioners but rather a flat monthly salary notwithstanding the volume of work the particular Advocate attends to in a month. Across the board, Legal Aid Advocates are paid gross ranging from MWK $502,352.00 to MWK $786,927.00, (which is approximately USD $669.80 to USD $1,049.24 per month). In addition to these salaries, Legal Aid Advocates are entitled to a monthly Non-Practicing Allowance (NPA) in the sum of MWK $250,000.00 (approximately USD $333.00). Further to this, all Advocates and the Legal Aid Assistants are entitled to a DSA of MWK $30,000.00 (approximately USD $40.00) for any matter handled outside their duty station.

2.6. Quality Assurance

Quality assurance of the Bureau is at two stages. Firstly, internally, the Bureau as discussed is headed by the Director as stipulated under section 9 of the Legal Aid Act. The Directors exercise the top most internal quality control. All the regional head, the Chief Legal Aid Advocates in this case, report to the Director on the performance of their respective regions. A parallel quality assurance is the reporting channels for legal officers. Aside from the general reporting the Chiefs make to the Directors, all technical staff (Advocates and their Assistants) are required to submit bi-monthly reports to the Director providing an update on all the matters assigned to them. This combined with the Regional head report provides ample material for internal quality assurance and control.

Further to this, the Act prescribes the academic qualification of not only the Directors as well as the Legal Aid Advocates and their assistants. For the Directors, the requirement is that a person can only be appointed as Director or Deputy Director if he/she has practiced as a legal practitioner for not less than 10 years.[36] The Legal Aid Advocate require a minimum of a Bachelor’s Degree in Law and admittance to practice law in Malawi.[37] The Legal Aid Assistants require some qualification in law coupled with other skills prescribed under the Act.[38] All these ensure quality of the legal aid service is guaranteed from the bottom up.

The internal quality assurance and control for administrative function is done through quarterly Management Meetings where all departments of the Bureau present to Management on the activities of their respective departments.

Externally, quality assurance and control for the Legal Aid Bureau is exercised by the Executive and Parliament. Section 4 of the Legal Aid Act mandates the Bureau to make reports to the Minister responsible for justice on all matters relating to the functions of the Bureau. The Minister may also where reasonable request that the Bureau makes a report on a specific issue of interest.

Further to this, the Bureau is responsible to Parliament as the appointing authority of the leadership of the Bureau[39] as well as the institution which is responsible for the welfare of members of staff of the Bureau.[40]In that regard, the Bureau routinely reports to Parliament on the operational issues. Parliament in turn provides strategic direction and guidance to the Bureau.

Further, being a public institution, the Bureau is also subject to the existing quality assurance framework of the Government. The Bureau is subject to the financial performance evaluations through the National Audit Office by way of audits as prescribed under the Public Audit Act,[41] the Public Finance Management Act[42], and the Public Procurement and Disposal of Assets Act[43], among other public finance management frameworks. The Bureau is also under the general guidance of the Department of Human Resource Management and Development which is a department within the Office of the President and Cabinet mandated to oversee the public service performance.

2.7. Criminal Legal Aid

2.7.1. Scope of Criminal Legal Aid

As earlier stated, legal aid comprises of legal advice, legal assistance, representation in any court, tribunal or similar body or authority and the provision of civic education and information about the law.[44] These services constitute both civil and criminal legal aid, but at this juncture, we will concentrate on criminal legal aid.

In Malawi, criminal legal aid is regulated by section 17 and 18 of the Legal Aid Act. Legal aid in criminal matters is available for suspects arrested or detained on criminal charges as early as the investigation stage.[45] At this phase, Legal Aid Advocates/Legal Aid Officers engage in pre-trial investigation to examine a person who is suspected of committing a crime before charges are officially filed. The Bureau may get information or speak to experts and witnesses to determine if a crime was indeed committed and to gather evidence for the suspect. As much as legal aid is available to suspects that have been detained, it is also available to those that have not been detained or arrested during criminal investigation. The type of legal aid in this situation is legal advice and civic education or provision about the law and gathering information that can help with their case. It is important to note that legal aid is still available to suspects that have been released from custody during investigations.

After investigations have been done and charges officially filed, the accused (defendant) can still have access legal aid during trial and other hearings. And once the defendant has been granted legal aid, legal aid will be available to that particular person at all hearings and at all stages of criminal procedure.[46]

It is important to note that a person has the right to legal aid after a criminal conviction, to appeal against the conviction even if s/he did not have access to legal aid during initial hearings and trial.

Legal aid is prima facie not available for victims of crimes. This is so because crimes are handled and prosecuted by the police, prosecutors to be precise and these prosecutors are the ones that help victims get justice.  There are, however, some circumstances that legal aid can be available to victims of crimes, a good example are battery crime victims. These people can access legal aid not to get help from the Bureau to convict the offender, but to for example get compensation for harm occasioned to them. The Bureau uses an ‘assessment of means’[47] to determine whether their client in either criminal or civil cases would be able to pay a contribution[48] to the Bureau to subsidize the cost of handling that case. The Act also allows for contingency payment arrangements for cases where the client is claiming a financial claim.

Witnesses are essential in the handling of criminal matters. We can say legal aid can be available to witnesses of a crime but in a very limited manner. The purpose of criminal legal aid is to help the accused if it is in the interest of justice with criminal investigations and criminal proceedings,[49] and this can only be done if the applicant has sufficient interest over and above everyone in the matter. As such, a witness may not have sufficient interest over and above the accused, hence the only kind of legal aid that can be available to the witness is civic education about the law and limited advice. When giving legal advice, the witness or any person seeking such advice is not financially assessed or asked to make any contributions towards legal aid.

2.7.2. Eligibility criteria for criminal legal aid

The Malawi Constitution under section 42 sets the tone for general eligibility of legal aid in criminal matters. It provides under sections 42(1)(c) and 42(2)(f)(v) that any person who is arrested and detained, including a person who has been sentenced have the right to a legal practitioner of his choice, but where s/he cannot afford one, but the interest of justice so requires, a legal practitioner shall be provided at the expense of the State. These provisions bring into play the criteria prescription under the Legal Aid Act.

The eligibility criteria for criminal legal aid is guided by section 18(2) of the Legal Aid Act. Legal aid will be granted to any person who is answering any charge which, upon conviction it would result in custodial sentence, or loss of livelihood or may result in serious reputational damage.[50] Legal aid in criminal matters can also be granted where the case in question involves the determination of a substantial question of law.[51] Legal aid will also be granted where the accused is unable to understand the language, or has mental issues or physical disability or any other such condition.[52] Further, legal aid can be granted where the case involves the tracing and interview of witnesses of indeed cross examination of expert witness of the prosecution.[53] Lastly, legal aid is available to accused persons answering a charge, which upon conviction, s/he would be sentenced to a fine which s/he may not be able to pay within a month of the sentence.[54] Clearly, the eligibility for legal aid in criminal is wide enough to cover almost all the criminal offences.

Of importance is that the provisions are applicable for both Malawians as well as foreigners.

2.7.3. Process for obtaining criminal legal aid

There are three main ways through which a person can access legal aid services in criminal matters. The first way is where the person has walked into Legal Aid Bureau’s offices seeking legal aid in criminal case. This happens where there is an investigation, or the person has been released on bail. The second common way is where a relation of the accused person who is incarcerated visits the Bureau’s offices seeking assistance on behalf of his or her incarcerated relation. The third way is when Legal Aid Bureau officers conduct legal aid clinics in places of detention across the country where they find individuals who require legal aid service.

In the first two scenarios, when the accused person or a relation visits the Bureau, the first step is an interview with a Legal Aid Assistant who then takes a statement using Legal Aid Form 1. This form contains the details of the accused person (and those of the relation where the legal aid is sought on behalf of an incarcerated person). After the statement has been taken, the Applicant is required to fill Legal Aid Form 3, where he or she fills in his name, address, marital and financial status and how much he is willing to contribute to the cost of the case. The statement sheet and Legal Aid Form 3 constitute an instruction sheet. This instruction sheet is then taken to the Director (or any other officer acting on delegated powers) for the granting of legal aid and determination of the level of contribution payable. Legal aid may be denied in instances where the facts do not meet the criteria specified in the law or where the facts don’t appear to disclose merits of the case.

Where, the accused is visited by the Bureau in the place of detention, an interview of the facts is recorded in the same form described above. Unlike where the application is done at the offices, interviews in places of detention there is no contribution payable.

In cases where legal aid is sought on behalf of a person incarcerated, the Bureau makes arrangements to visit the accused in detention and conduct an interview to verify the facts of the case and indeed confirmation of the instruction.

Where a criminal suspect wishes to be assisted, but no legal aid provider is available, criminal investigation are never halted in practice. Generally, very few persons ever seek legal aid services where there merely under investigations. However, every person that has been detained has the right to consult confidently with a legal practitioner of his or her choice and to be informed of this right promptly. And where the interest of justice so require, to be provided with the services of a legal practitioner by the state.[55] Where the detained person sees that a state legal practitioner (legal aid provider) has not been provided, he or she can communicate and send someone outside prison to lodge a complaint on his behalf and to be granted legal aid as the detained person has the right to be given means and opportunity to communicate with, and be visited by his or her spouse, partner, next of kin etcetera.[56] And since a person has the right to consult with a legal practitioner of his or her choice, as per section 42(1)(c) of the Constitution of the Republic of Malawi, he or she cannot be forced to receive legally aided assistance if he or she does not want and courts and other legal aid agencies cannot award legally aided defense against the wishes of the suspect. In other words, a criminal suspect is at liberty to deny legal aid assistance.

2.8. Civil legal aid

2.8.1. Scope of civil legal aid

Civil legal aid is guided by sections 19 to 20 of the Legal Aid Act. Section 19 of the Act states that the Bureau shall develop and maintain a service to enable any person involved in civil proceedings as a litigant or as an interested party to have access to legal aid.[57] This service includes provision of legal literacy services about the law generally, civil procedures, and other issues.[58] The service also involves provision of legal advice relating to how the law applies to a specific situation.[59] Legal services in civil matters also extend to legal assistance in preventing or resolving legal disputes.[60] Lastly, legal aid in civil matters also involves legal representation in any civil matter before courts and any tribunal.[61]

However, it is important to note that not all civil matters can be granted legal aid. Legal aid in civil matters is not available for matters specified under the First Schedule of the Legal Aid Act.[62] Some civil matters are ineligible for legal aid include (i) electoral petitions under the Parliamentary and Presidential Elections Act or in relation to Local Government Elections, (ii) proceedings for, or consequent to the issue of judgment  summons, and in the case of a defendant, (iii) proceedings where the only question to be brought before the court is as to the time and mode of payment by him of a debt (including liquidated damages) and costs, (iv) insolvency proceedings, (v) foreclosure of mortgages, (vi) drafting of documents for the registration of companies and firms, (vii) transfer of property and conveyancing, except where such transfer of property or conveyancing is incidental to or arises out of a matter eligible for legal aid which is being handled by the Bureau, (viii)  Proceedings incidental to any proceedings listed above, and (ix) defamation.[63]

It is important to note that in Malawi, people commonly seek civil legal aid services in land and employment matters.

2.8.2. Eligibility criteria for civil legal aid

The Legal Aid Act prescribes two criteria for a person seeking legal aid in civil matters. Section 20 provides that a person shall be eligible to receive legal aid in civil matters if in the opinion of the Director the person has reasonable grounds for instituting or defending the matter in question[64], and that such a person has insufficient means to hire a private lawyer for his matter.[65] The first aspect dwells on assessing the merits of the claim for which legal aid being sought. Legal aid can only be granted for matters which have merit at law. The second aspect involves the assessments of the means of the applicant to see if s/he cannot afford to hire the services of a private lawyer and also assessing the contribution payable towards the costs of handling the case.

In Malawi, the majority of the citizenry cannot afford to engage the services of a private legal practitioner. The criteria of eligibility to civil legal aid also applies to foreigners just as it does to citizens. This is to say that foreigners, immigrants and other groups of people who are not citizens of Malawi but are in Malawi can access civil legal aid services.

Just like criminal legal aid, recipients of civil legal aid will be assessed as to their means for purposes of assessing the legal aid contribution payable. The procedure is that once a statement is taken from the client using Form 1, the client is further required to fill Form 3 where s/he fills in her/his name, address, marital and financial status and how much he is willing to contribute.

The amount of contribution which the applicant is willing to contribute is taken as a pledge and the applicant is supposed to honor it once legal aid has been granted by the Director of Legal Aid Bureau. There are mainly three methods of payment of legal aid contribution for civil matters. The client may pay the entire contribution as pledged and assessed by the Director. The client can opt to pay the contribution in instalments. A client may also be allowed not to pay anything but have his contribution deducted from the proceeds of the case if it’s a claim for liquidated damages. It is also possible to have a hybrid of these payment methods. Lastly, the Director may revise the contribution payable if there is change in circumstances of the client or indeed the case.

2.8.3. Process of Obtaining Civil Legal Aid

The process of obtaining civil legal aid is the same as the one of obtaining criminal legal aid. Thus, please refer to Section 2.7.3 above.

2.9. Alternative Sources of Legal Assistance

The legal aid sector of Malawi has many other players aside from the Legal Aid Bureau. These are both government and non-governmental institutions.

2.9.1. State Institutions

The state institutions include the Office of the Ombudsman, Malawi Human Rights Commission, the Ministry of Labour and the Victim Support Unit of the Police Service.

A. Office of the Ombudsman

The office of the Ombudsman is set up under the Constitution of the Republic of Malawi.[66] The office is tasked with investigating any instances of injustice where there is no remedy in the court or elsewhere.[67] The powers of this office are limited to instances of injustice occasioned by a public office administratively.[68] The office may direct an appropriate authority to remedy the complaint under consideration[69] or indeed recommend the Director of Public Prosecutions to institute criminal prosecution.[70] The office of the Ombudsman therefore provides legal aid services in instances where the Legal Aid Bureau cannot act.

B. Malawi Human Rights Commission

The Malawi Human Rights Commission is set up under section 129 of the Constitution of the Republic of Malawi.[71] The Commission is mandated to investigate instances of violations to human rights and seek redress. The Commission has, through its investigations and reports assisted individual to enforce their rights by among other things providing them with the legal aid on how to protect and enforce rights as enshrined in the Constitution.

C. Labour Office – Ministry of Labour

The Ministry of Labour through the Labour Offices provide a critical legal aid component relating to industrial matters. Among other functions, the Labour Office is mandated to provide forms of alternative dispute resolution in labour matters other than directly going to court, as they receive labour complaints and resolve them where possible. Section 64(1) of the Employment Act provides that any person having a question, difference or dispute as to the rights and liabilities of any person, employer or employee under the Act or contract of employment may bring the matter to the attention of the Labour Officer who shall attempt to resolve the matter. Further, section 64(2) of the Employment Act state that any person alleging a violation of a provision of this Act may file a complaint with the District Labour Officer who may institute or cause to be instituted a prosecution in order to enforce the provision of this Act.

More directly, the Labour Office is mandated to provide legal aid to persons appearing before the Industrial Relations Court. Section 73(1)(b) of the Labour Relations Act allows Labour Offices to handle labour matters and it provides that a party to any proceeding before the Industrial Relations Court may be assisted or represented a Labour Officer.

The Workers Compensation Act also allows Labour Offices to handle labour matters as it provides under section 42(1) that any worker or employer affected by the decision of a Commissioner may lodge an objection in writing through a prescribed form. Section 41(3) of this Act further provides that if owing to being illiterate or blind or having any other physical disability, the objector is unable to complete a prescribed form, or to supply the information required, the labour officer shall fill in the particulars of the prescribed form and shall lodge an objection with the minister.

It can be concluded form the above that the Labour Office is mandated to provide front-line legal aid assistance in labour matters.

D. The Victims Support Unit (Malawi Police Services)

The Victims Support Unit (VSU) is an administrative creature set up by the Malawi Police Service (MPS) which is aimed at providing frontline legal and social support to victims of domestic violence. VSUs which are present in almost all police stations across the country provide legal aid services to victims of domestic violence which includes assisting victims in obtaining protections orders, directing victims to other authorities and institutions including the Legal Aid Bureau to obtain further legal and social assistance. VSUs have been vital in resolving low level domestic conflicts and they have also been referring a lot of cases to the Bureau.

2.9.2. Non-State Institutions

Some of the Non-governmental institutions include, the Malawi Law Society, Paralegal Advisory Services Institute (PASI), Irish Rule of Law (IRL), Women Lawyers Association, Byounique Trust, Center for Human Rights, Education, and Advisory and Assistance (CHREAA).

A. The Malawi Law Society

The Malawi Law Society (MLS) is also mandated to provide legal aid in the form of the pro bono scheme which provided under section 42(1) of the Legal Education and Legal Practitioners Act. The provision mandates the society in liaison with the Legal Aid Bureau to allocate pro bono work to every legal practitioner annually. In essence, the Bureau has an extra pool of lawyers to undertake legal aid services in the country though this scheme. In instances where a lawyer is unable to undertake the legal aid work assigned, s/he is required to pay the society an amount to be determined by the society to allow it hire a lawyer to undertake that pro bono work.[72] The Act goes further to state that a legal practitioner who fails to perform pro bono work shall be liable to disciplinary action.[73] It is practice in Malawi that Legal Practitioners who have not engaged in any pro bono work and have not done the prescribed payment are denied renewal of their practicing licenses.

B. The Paralegal Advisory Services Institute (PASI)

The Paralegal Advisory Services Institute (PASI) is a non-governmental institution with a national reach. It specializes in national wide legal aid initiatives including deploying trained paralegals to provide legal education, advice and assistance throughout the criminal justice process, from arrest to appeal, which complements the work of  lawyers.[74]

PASI also works with prison officers to screen prisoners, to identify those that have been lost in the system, and those that have been unlawfully and inappropriately imprisoned, and any irregularities are brought to the attention of the authorities. Through this mechanism, PASI has referred numerous cases to the Legal Aid Bureau for handling through the court system. The PASI paralegals also follow  up on each individual until the person is released, convicted or sentenced.[75]

C. Irish Rule of Law (IRL)

The Irish Rule of Law (IRL) is also another non-governmental institution which is also providing legal aid services in Malawi. The program which has been in Malawi for over 5 years has, among other things, contributed to the provision of criminal legal aid. The program has been attaching a lawyer from Ireland to assist in the handling of criminal cases.

D. Women Layers Association

Women Lawyers Association (WLA) is an organization of women lawyers in Malawi who, among other issues, provide legal aid services to women and children. Through their initiative WLA has provided legal aid to numerous women across the country. The association has also corroborated with the Bureau on similar initiatives.

E. Byounique Trust

Byounique Trust is a private trust which focuses on children in conflict with the law. The trust aims at providing legal aid to such children in the southern part of Malawi. Their mode of operation is to trace and assess children in conflict with the law in various holding facilities in the southern region of Malawi. Once they have screened and undertaken background investigations and determine that the particular child require legal aid in whatever form, the matter is then referred to the Legal Aid Bureau.

F. Center for Human Rights, Education, and Advisory and Assistance (CHREAA)

CHREAA is a non-governmental organization working in the criminal justice sector. It provides various legal aid services including provision of legal aid services to incarcerated persons, advocacy work on rights of detainees. Uniquely, CHREEA has partnered with various stakeholders especially the Legal Aid Bureau in pursuing strategic litigation on various issues affecting vulnerable people in the justice sector including challenging vagabond laws, among others.

BIBLIOGRAPHY

[1] Section 42(2)(f)(i) of the Constitution of the Republic of Malawi

[2] Scharf W, Banda C, et al. Access to justice for the poor of Malawi? An Appraisal of Access to Justice Provided to the Poor of Malawi by the Lower Subordinate Courts and the Customary Justice Forums. https://gsdrc.org. (last visited on 8/21/2019)

[3] Ibid

[4] International Monetary Fund (IMF), 2017, Malawi Economic development Document, p.2 available on http://www.imf.org/publications

[5] Section 20(1) of the Constitution of the Republic of Malawi

[6] Section 20(2) of the Constitution of the Republic of Malawi

[7] Poor Prisoners Defense Act. No. 19 of 1945

[8] Poor Prisoners Defense Ordinance (1957) Nyasaland Laws

[9] Wanda P.B., Legal Aid Services in Malawi, (1975) WASH. U.L.Q.113

[10] Zgambo M.L. (2018) Legal Aid Bureau to establish district offices. Available at https://malawi24.com/2018/08/15/legal-aid-bureau-to-establish-district-offices. (accessed:22 July, 2019)

[11] Section 41(2) of the Constitution

[12] Section 2 of the Legal Aid Act, No. 28 of 2010

[13] Section 3 of the Legal Aid Act, No. 28 of 2010

[14] Section 6 of the Legal Aid Act, No. 28 of 2010

[15] Section 4 of the Legal Aid Act, No. 28 of 2010

[16] Section 36 of the Legal Aid Act, No. 28 of 2010

[17] Section 35 of the Legal Aid Act, No. 28 of 2010

[18] Section 39 of the Legal Aid Act, No. 28 of 2010

[19] Section 23 of the Legal Aid Act, No. 28 of 2010

[20] Section 28(1) of the Legal Aid Act, No, 28 of 2010

[21] Section 28(2) of the Legal Aid Act, No, 28 of 2010

[22] Section 6 & 3 of the Legal Aid Act, Cap 4:01 of the Laws of Malawi

[23] Section 6 of the Legal Aid Act, Cap 4:01 of the Laws of Malawi

[24] Section 19(2) of the Legal Aid Act as read with First Schedule of the Act

[25] Section 7 of the Legal Aid Act

[26] Section 9 of the Legal Aid Act

[27] The qualifications are spelt out under section 8 of the Legal Aid Act

[28] Section 10 of the Legal Aid Act

[29] Section 11 of the Legal Aid Act

[30] Section 12 of the Legal Aid Act

[31] Section 15 of the Legal Aid Act

[32] Figures as at March 2020.

[33] The Malawi Government, Drafts and Estimates of Expenditure on Recurrent and Capital Budget for the Financial year 2017/2018. Detailed Estimates, Vol. 3 (Votes 320-400,430-560, 098, 310, 420)

[34] The Malawi Government, Drafts and Estimates of Expenditure on Recurrent and Capital Budget for the Financial year 2015/2016. Detailed Estimates, Vol. 3 (Votes 320-400,430-560, 098, 310, 420)

[35] The Malawi Government, Drafts and Estimates of Expenditure on Recurrent and Capital Budget for the Financial year 2015/2016. Detailed Estimates, Vol. 3 (Votes 320-400,430-560, 098, 310, 420)

 

[36] Figures as at January 2020 (7 months into the budget year)

[37] Part VII of the Legal Aid Act

[38] Section 39 of the Legal Aid Act

[39] Section 8 of the Legal Aid Act

[40] Section 12 of the Legal Aid Act

[41] Section 12(2) of the Legal Aid Act

[42] Section 8 of the Legal Aid Act

[43] Section 12 of the Legal Aid Act

[44] Section 14 of the Legal Aid Act

[45] Section 9 of the Legal Aid Act mandates the Public Appointments Committee of Parliament to appoint the Director and Deputy Director of the Bureau

[46] Section 15 of the Legal Aid Act mandates the Public Appointments Committee of Parliament to formulate terms and conditions of service for the members of staff for the Bureau

[47] Chapter 37:01 of the Laws of Malawi

[48] Chapter 37:02 of the Laws of Malawi

[49] Act number 27 of 2017

[50] Section 16 of the Legal Aid Act, Cap 4:01 of the Laws of Malawi

[51] Section 18(1) (a) of the Legal Aid Act

[52] Section 18(1)(a) of the Legal Aid Act

[53] Section 21 of the Legal Aid Act

[54]Section 22 of the Legal Aid Act

[55] Section 18(1)(a) of the Legal Aid Act, Cap 4:01 of the Laws of Malawi

[56] Section 18(2)(a) of the Legal Aid Act

[57] Section 18(2)(b) of the Legal Aid Act

[58] Section 18(3)(c) of the Legal Aid Act

[59] Section18(1)(d) of the Legal Aid Act

[60] Section 18(1)(f) of the Legal Aid Act

[61] Section 42(1)(c) of the Constitution of the Republic of Malawi

[62] Section 42(1)(d) of the Constitution of the Republic of Malawi

[63] Section 19(1) of the Legal Aid Act

[64] Section 19(1)(a) of the Legal Aid Act

[65] Section 19(1)(b) of the Legal Aid Act

[66] Section 19(1)(c) of the Legal Aid Act

[67] Section 19(1)(d) of the Legal Aid Act

[68] Section 19(2) of the Legal Aid Act

[69] First Schedule to the Legal Aid Act

[70] Section 20(a) of the Legal Aid Act

[71] Section 20(b) of the Legal Aid Act

[72] Section 120 of the Constitution

[73] Section 123(1) of the Constitution

[74] Section 126(a) of the Constitution

[75] Section 126(b) of the Constitution

[76] Section 126(c) of the Constitution

[77] Chapter XI of the Constitution

[78] Section 42(3) of the Legal Education and Legal Practitioners Act. No. 31 of 2018

[79] Section 42(4) of the Legal Education and Legal Practitioners Act. No. 31 of 2018

[80] Pasimalawi.org (accessed: 09 July, 2019)

[81] https://acjr.org.za (accessed:09 July, 2019)