The battle for legal representation for the poor has intensified with the Judiciary, some lawyers and civil society organisations backing a Legal Aid Bureau proposal to allow paralegals limited access in magistrate’s courts.
But the Malawi Law Society (MLS) has remained a lone voice, protesting the proposal on the basis that it would lower legal practice standards and compromise access to justice.
During a public hearing conducted by the Legal Affairs Committee of Parliament in Blantyre yesterday, MLS cautioned the committee and accused government of failing to meet its responsibility to adequately fund the Legal Aid Bureau to make it competitive and employ qualified lawyers.
MLS president Patrick Mpaka argued that everyone is equal before the law, adding that allowing the amendment to the Legal Aid Bureau Act would mean entrenchment of inequality by the State where the rich would still proceed to seek legal services from lawyers admitted to the bar while the poor would be served by paralegals through the Legal Aid Bureau.
In an interview later, Mpaka said: “We are urging everyone involved in this to be cautious in the manner they approach the issue. When the Constitution talks of a legal practitioner, it is that person admitted to the bar. I do not think our intention is to do away with the supreme law of the land.”
But the MLS voice was drowned by other stakeholders at the hearing, including the Judiciary who spoke in support of the amendment to allow paralegals limited access in subordinate courts and on categorised cases.
Former minister of Justice and Constitutional Affairs Bright Msaka— who attended the hearing as a member of the Legal Affairs Committee—and lawyer Bright Theu, present in his personal capacity, also spoke in support of the proposal to allow paralegals limited audience in magistrate courts.
Msaka allayed fears that the proposal, if taken on board, would mean amending a number of sections in the Constitution, arguing that even where it may require repealing the whole Constitution, so be it as long as it is in the interest of Malawians.
He asked MLS to ask itself why it is the only voice against the proposal, urging the lawyers’ body to consider the greater interest of people.
In his contribution, Theu posed a probing question for the Legal Affairs Committee to consider what would be better for someone to have legal representation from a paralegal in the categorised cases before magistrate’s courts or have no representation at all.
He said he was in support of the proposal to allow paralegals limited audience in subordinate courts as long as there were necessary regulations and supervision from legal practitioners within the bureau.
Making a clarification during the hearing, Legal Aid Bureau director Masautso Chamkakala said the right to audience in subordinate courts would be restricted to paralegals working for the bureau.
He said paralegals would not compete for the same market with the licensed lawyers, but would be there to offer free services to poor members of the society in categorised minor cases hardly taken by town-based private lawyers.
Directly responding to MLS, Chamkakala said: “The Malawi Law Society should not be worried of standards. We have paralegals that can match legal practitioners admitted to the bar foot by foot, even much better.
“Some of the paralegals we are talking about are lawyers with law degrees, some studied outside the country and our proposal is clear.”
Chipping in, Centre for Human Rights, Education, Advice and Assistance (Chreaa) executive director Victor Mhango, whose organisation works in prisons, said the bureau’s proposal would help and reach out to thousands of Malawians languishing in prisons without access to lawyers.
In an interview later, he said 95 percent of inmates are poor and illiterate and that prison occupancy is at 260 percent beyond what is recommended.
Representing the Judiciary, Kondwani Banda, senior deputy registrar at the High Court of Malawi and Malawi Supreme Court of Appeal, said the Judiciary had no problem with the proposal as long as it would have proper regulations and checks.
Legal Affairs Committee chairperson Peter Dimba said it was pleasing that the proposal was getting support.
In a letter to the Legal Affairs Committee of Parliament dated April 7 2021, the Legal Aid Bureau is advocating for limited right of audience in particular in subordinate courts that deal with matters that are within the competence levels of legal aid assistants.
But MLS, in a response addressed to the Legal Aid Bureau dated June 14 2021, with copies to all the stakeholders, says it does not support the idea of amending section 14 of the Legal Aid Bureau Act in the way proposed.