A legal debate to allow legal assistants (paralegals) to represent clients in Malawi’s subordinate courts has divided the country’s judicial system with some saying it will improve access to justice while others think it will compromise quality of services.
Paralegals are legal support staff operating with a certificate or diploma in law but may also include degree holders not admitted to the bar.
Ignited by the Legal Aid Bureau under the Ministry of Justice, the debate follows a proposal by the Bureau to the Legal Affairs Committee of Parliament to amend the Legal Aid Act and pave way for legal assistants to represent poor Malawians in lower courts.
This comes after a report by Penal Reform International (PRI) revealed serious human rights violations in Malawi’s criminal justice system including denial of justice due to lack of legal representation for poor citizens.
It is said that over 3,000 people in Malawi are on remand in the country’s prisons awaiting trial with some of them having spent more than seven years in prison without having their cases heard in court due to lack of representation.
The Bureau has 23,017 outstanding cases to be dealt with by its 35 legal aid assistants who support 25 lawyers. Meanwhile, by November last year the judiciary had registered 627,700 cases which were expected to be handled by the country’s 627 registered lawyers.
The Ministry of Justice is mandated to recruit and hire private lawyers for the Legal Aid Bureau but due to financial and technical challenges, the Bureau has over the years failed to attract practitioners and in turn relying on legal assistants to support the numbers of lawyers available.
Objecting to the proposal, the Malawi Law Society (MLS) says the Bureau must not use its capacity challenges to dilute the standards of the legal profession. It further argues that the proposal would promote inequality as the rich would be represented by qualified lawyers while the poor would be represented support staff.
The Bureau has, however, challenged that some criminal cases in subordinate courts are prosecuted by non-legal practitioners with less legal qualifications than those held by legal aid assistants. It also notes with concern why legal aid assistants are not allowed to make legal representation even where the case is being presided over by lay magistrates possessing the same legal qualifications as legal aid assistants.
Meanwhile, civil society organisations have also added their voice calling for the proposed amend to include other paralegal officers outside the Legal Aid Bureau. They argue that access to private practicing lawyers is hard for rural populations for they are mainly urban based and expensive.
Chairperson for Legal Affairs Committee of Parliament, Peter Dimba, says the committee will look into the proposals and come up with a resolution after consulting all other stakeholders.
Dimba says he is aware that the Malawi Police Service (MPS) uses paralegals as prosecutors while some magistrate courts are also paralegal officers working as lay magistrates
The Malawi Police Service, Office of the Director of Public Prosecutions and the Anti-Corruption Bureau are some institutions whose paralegals have limited right of audience to the lower courts.