When the poor cannot access justice
Between February and July 2013, Mariam Mbendera of Ndalama Village, Traditional Authority (T/A) Nchilamwera in Thyolo visited the Legal Aid office in Blantyre thrice to seek help, but each time she returned home empty-handed.
This happened at a time she needed legal support to stop her brothers-in-law from selling the only house left by her deceased husband and return house property they had grabbed from her and her child.
Helpless, Mbendera says she collected her few belongings and left for her mother’s home some three kilometres away. She had given up.
However, she changed her mind a week later after a friend encouraged her to engage the Legal Aid Bureau (LAB) in Blantyre. But due to poverty, fetching K2 000 (US$4) for transport to and from Blantyre was another challenge. It took her two months to finally visit the office.
“The most readily available piece work in the village is farming and the earnings range from K200 to K500 per day depending on the work load. From that amount, I had to feed myself and the child. It was hard, but thank God that I managed to raise K2 200 for the trip,” says Mbendera.
But her trip to LAB did not bear fruit. The officer she found at the legal aid office told her there were no lawyers hence she had to return after a month.
“I walked out of the office in disbelief. I sat down on the visitors seats and cried for about 30 minutes. I knew it would be hard for me to make it again,” she says.
After a month, she was back at the office after selling her mother’s piglets. This time, she was greeted with good news—a lawyer was available. The lawyer told her that her issue is complicated that it cannot be pursued forthwith due to lack of resources at the office. To make things worse, the lawyer asked for a contribution of K100 000.
“That was the end for me. How could I raise such a huge sum? Even today, I cannot,” says the widow, who believes that had she paid the sum or managed to hire a private lawyer, she could have reclaimed her lost property.
A month later, Mbendera says she went again to the office to ask if it was possible to pay after she wins the case, hoping to sell some of the property then to meet the costs, but the lawyer refused, saying he requires a 50 percent deposit to start pursuing a case.
Like Mbendera, Mderanji Billiati, a mother of three in Bangwe Township believes there is no justice for the poor. Her 18-year-old son is languishing in prison for a case that was not tried in court.
The 35-year-old mother says her son was arrested, alongside five others in 2013, on allegations that they took part in a crime in the township. Two of them got a lawyer and were released while at Chikunda Police. The rest were taken to Chichiri Prison and when their case was taken to court, they denied the allegations and were sent back to prison waiting for the second hearing at the High Court.
While in prison, the families of two others hired a lawyer to have their boys released leaving Billy and another boy in prison.
“The other parent tried Legal Aid, but it never worked after several attempts. Last year, we contributed to engage a private lawyer. He demanded K100 000, but we only managed K50 000 (US$111) and it has yielded nothing. The lawyer is not telling us the truth and the case is rusting,” says Billiati.
As it stands, money is what is standing between the two boys and freedom. If their parents cannot secure the funds, they will spend more years in prison without accessing justice.
These two cases are a mirror of the situation on the ground. Access to justice remains a challenge for the poor.
Government, through Parliament, established the Legal Aid Act which through the Act 28 of 2010, founded the Legal Aid Office. Now called Legal Aid Bureau (LAB), the body is mandated it to provide legal aid services to people who cannot afford private legal services.
Nevertheless, the office has been operating on little resources, making it difficult to render services to most people in need.
During a recent visit to the bureau in Blantyre, over 10 people visited the office in a space of two hours, but most were returned because, they said, their cases were complicated or too involving.
One of them is Eric Hoka who was seeking legal support to claim damages when he was hit by a car while cycling along Zalewa Road in 2010.
“I explained to them my situation and they said I have taken too long to report my issue and it is too involving,” says Hoka.
Details sourced through LAB headquarters indicates that a private lawyer charges a minimum of K15 000 per hour to handle a case. This excludes transport, phone and library allowance, among others. On average, each case costs around K1 million.
Masauko Chamkakala, LAB director, admits that they are failing to meet the demand. He says on a good day they receive 90 cases and they only handle a few because of resources.
Chamkakala reveals that they only have a vehicle for the three offices and instead of 15 lawyers, they only have nine.
A 2014 Human Development Index (HDI) released by United Nations Development Fund (UNDP) says 61.64 percent of Malawians live on less than a dollar a day. This means they can hardly afford the K1 million required for legal fees.
Yet, Malawi committed itself to ensuring access to justice and legal support to the vulnerable. The commitment is through the Constitution, which gives every Malawian the right to access justice, and also through the signing of several major international human rights instruments including the International Covenant on Civil and Political Rights (ICCPR) and other conventions that target children, women and the disabled.
Private lawyers are thieves. How can they charge K15 000 per hour? This is pure exploitation. And these lawyers are saying they stand for justice. Which justice? They are there purely because of money. They are the worst exploiters. I have not respect for you. Mbava inu!
How many people can raise this money. Malawi is a very sick country.
Surely, something must be done.