Malawi Law Society (MLS) has objected to a Legal Aid Bureau proposal to have its Act amended to allow paralegals represent clients in magistrate courts as it would compromise legal standards in the country.
But the bureau’s director Masautso Chamkakala has argued that MLS objection is premised on inaccurate information, saying the bureau will continue pushing for the amendment to the Legal Aid Bureau Act.
In a proposal addressed to the Legal Affairs Committee of Parliament dated April 7 2021, the bureau wants limited right of audience for legal aid assistants, popularly known as paralegals, in particular in subordinate courts that deal with matters that are within their competence levels.
The bureau argues that most criminal matters in subordinate courts are prosecuted by non-legal practitioners who do not even possess the minimum legal qualifications that legal aid assistants have.
Paralegals are those with a certificate or diploma in law and in some cases, degree holders that are not admitted to the bar.
Reads the proposal in part: “[These are] courts which are largely manned by judicial officers that possess the same legal qualifications as legal aid assistants.”
Currently, legal aid assistants are not allowed to undertake legal representation even in situations where the case is being prosecuted by a lay magistrate.
The bureau, in the proposal, says it has 35 legal aid assistants who offer legal support to the needy, 20 State advocates (prosecutors), 419 Malawi Police Service prosecutors and five prosecutors at Anti-Corruption Bureau (ACB).
But MLS, in a response addressed to the Legal Aid Bureau dated June 14 2021, copied to all the stakeholders the bureau copied its proposal to, says it does not support the idea of amending Section 14 of the Legal Aid Bureau Act.
Reads the MLS letter in part: “The society’s appreciation of the Legal Aid Bureau situation is that it is facing capacity challenges to an increased case load. In terms of Section 4 and 31 cited earlier, the technical expertise required to handle the load before courts is that of legal practitioners. This technical standard must not be compromised because of current operational challenges.
“There is a growing number of legal practitioners being admitted to the Malawi Bar. The trend is likely to grow, given the disbandment of the University of Malawi by which we understand, more universities will be offering [law] degrees.”
MLS argues that it is not prudent to lower standards for legal representation of legally aided persons by allowing less qualified persons to represent them in court.
Argues the society further: “It is the considered view of the Law Society that…given the state of affairs as Legal Aid Bureau, the best is to prepare the Legal Aid Bureau to accommodate and retain as many legal practitioners as possible by making the terms and conditions of service competitive.
“The social status of the needy should not be entrenched by offering them, in the name of legal aid, less than the technical standard prescribed by the regulating right of audience before courts in the country.”
MLS president Patrick Mpaka, a signatory to the response, said in an interview the society maintains its position, arguing they cannot lower legal standards when locally and internationally there are always calls to up standards of legal practice.
But in a separate interview on Friday, Chamkakala said MLS’s stance was premised on inaccurate information, including assumptions that the development would lower standards and that the legal aid assistants would ‘eat’ into the market for legal practitioners.
He said their proposal has the backing of the Ministry of Justice, Judiciary and the Legal Affairs Committee of Parliament.
The bureau, in its proposal to the Legal Affairs Committee of Parliament, argues that if it were to be true of legal aid assistants [not being competent] then, no lay prosecutor should be allowed to prosecute nor should a lay magistrate preside over any matter as they would all not provide a service to the standard of a legal practitioner.
The bureau argues in the proposal: “Secondly, it has been argued that allowing paralegals generally and legal aid assistants specifically would ‘eat’ into the market for legal practitioners. This argument lacks understanding of what market the proposal is focusing on.
“As statistics will show, these are matters that are hardly attended to by legal practitioners across the country. The bureau’s service is to the people who cannot afford a private legal practitioner. The bureau attends to people that would, otherwise, be without legal representation.”
Meanwhile, outgoing Legal Affairs Committee of Parliament chairperson Yusuf Nthenda said the Legal Aid Bureau has a valid proposal to fight for legal aid assistants’ right to audience in subordinate courts.
In an interview Friday, he said there have been several consultative meetings on the matter with Malawi Institute of Legal Education and other stakeholders.
Said Nthenda: “What the bureau is asking for is limited audience in the subordinate courts where cases are presided over by lay or graded magistrates. The system we have is too rigid. On August 26 2021, we have another meeting with the Solicitor General and obviously, we will have time to discuss this issue further.”
He has since been replaced by Peter Dimba as chairperson of the Legal affairs Committee.
The Legal Aid Bureau has 35 legal aid assistants who support 25 lawyers. The 35 are not allowed to represents clients–a situation they describe as unfair, especially because the Malawi Police Service, Office of the Director of Public Prosecutions and the Anti-Corruption Bureau have paralegals with limited right of audience.
Malawi has about 500 practising lawyers and due to high poverty levels, not many citizens can afford a commercial lawyer for representation. The Legal Aid Bureau, therefore, provides free services to ensure poor citizens have access to justice.