National Report

Summary of Contents

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.

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)