The Legal Aid Act 2010, which was the 7th Act to be passed by President Bingu Mutharika in 2011, is still yet to come into operation as the minister has yet to publish a notice of such in the Gazette as is required by section 1 of the Act. However I think given its potential significance it is important to discuss the various aspects of the Act, which may relate to our work here in Lilongwe.
Currently the Legal Aid Department (it will be called the Legal Aid Bureau under the new Act) has enabling legislation, the Legal Aid Act Cap 4:01 of the Laws of Malawi which is an Act
“to make provisions for the granting of legal aid to poor persons and matters connected therewith and incidental thereto”
The current Legal Aid Act was enacted in 1964 to provide for Legal aid to poor persons for free and at a contribution to those whose levels of income allow such contribution. Prior to 1964, Legal representation of poor persons was done under the poor Prisoners Defence Ordinance of 1945. The Ordinance was confined to criminal matters in the High Court specifically to cases of murder, manslaughter and defilement and given the budgetary shortages even today these are still cases which take priority in the office now. The LAD is a department in the Ministry of Justice and Constitutional Affairs whose objective to provide free legal services in all types of cases to the poor people of Malawi, hence, accord the people quality access to justice. The Departments core functions are performed by legal Aid Advocates, paralegals and law clerks.
The department currently has offices in Lilongwe, Blantyre and also Mzuzu. There is no LAD representation at district and sub–district level due to budgetary constraints and the absence of a pool of dedicated lawyers and there is an obvious need to decentralise the service in order to make it more accessible to all potential users. The authority to grant of Legal Aid is vested in the Chief Legal Aid Advocate, the Deputy Chief Legal Aid Advocate or the Assistant Chief Legal Aid Advocate. The Department is headed by the Chief Legal Aid Advocate (commonly known as the Chief), with responsibility over granting and refusal of legal aid services in all matters, general management, administration and financial management of department resources. The Chief reports directly to the Solicitor General and the Secretary for Justice in the Ministry of Justice and Constitutional Affairs. Any complaint or statement recorded is accompanied by a Legal Aid Application form duly completed and signed by the applicant. All the details on the forms are completed by the applicant if he is able to write. If he is unable to write the officer from the Department assists the client to complete the form. The Act is modelled on the English Legal Aid and Advice Act of 1949, and provides for a three tier approach to the granting of Legal Aid. Sections 4 to 6 of the Act address legal aid in criminal matters and considerations for assessment of eligibility.
A specific section I have found very interesting is the Third Schedule to the Legal Aid Regulations which establishes the fees payable to private Legal practitioners. The maximum fee that a private practitioner may be paid for a criminal case under this schedule remains at MK42, which is about 20 cent. You can imagine that private practitioners are lining up outside our doors trying to represent indigent accused on a daily basis. On the other hand and again unsurprisingly when it comes to Legal Aid in any jurisdiction, there is no limit to the amount of fees that a private practitioner may be paid for civil matters.
Basically to sum up the Legal Aid Department (LAD) is currently understaffed, has a high turnover of Advocates, and is in need of additional funding. Although funding has been significantly increased in recent years, the LAD receives only about 1.5 US cents per capita whereas the UK per capita expenditures reach $60 (Assessment of Legal Aid in the Criminal Justice System in Mlawi, Professor McQuiod (University of Kwa Zulu Natal 2006)P35.)
Legal Aid Act 2010
The new Act establishes a Legal Aid Bureau which will provide Legal aid consisting of legal advice and assistance, legal representation and public legal education. The Act makes provisions for the Legal Aid Bureau to liaise and cooperate with civil society organizations and any other persons or bodies engaged or interested in the provision of legal aid. It also proposes to create a “legal aid fund” in which the government and its partners will pool resources out of which the Department of Legal Aid will fund its activities and outsourcing to other service providers and it also includes a mention of various other sources of funding which shall include contingency fees, costs awarded by the courts to legally aided persons, deductions from the awards by the court and contributions made by legally aided persons. The Act provides that the Legal Aid Bureau should be adequately funded by the state to ensure independence. The bureau is required to establish regional and district legal aid centres for all four regions and 28 Districts.
The Act addresses the structure of legal aid service and establishes an independent State Institution, headed by a “Director”. The Act also narrowed the authorities to grant legal aid to ensure that legal aid is not granted without regard to available resources (given this provision I wonder how the planned legal aid centres for all four regions and 28 Districts will manage to fund themselves). The role of courts is confined to making recommendations to the Director in appropriate cases. Consequently, courts do not have power to order contributions. recommended for repeal. Whilst, the courts may make recommendations as regards the grant of legal aid, the Director has the exclusive power to address and deal with this issue. The Bill requires the Director to give reasons to the court that made the recommendations, as well as the Registrar of the High Court when the Director is unable to provide legal aid. Any aggrieved person is afforded the right of appeal against the decision of the Director not to grant legal aid. This approach is intended to ensure that the Director who has knowledge of the availability of legal aid resources and of all commitments of the Bureau, shall have the final decision whether or not to grant legal.
Another departure from the Current Act relates to the assessment of means of the applicant who is applying for legal aid. Whilst under the current regime the only means examined are those of the applicant for legal aid, the new Act proposes that the Bureau should take into account evidence of income and assets of the applicant and their spouse, and guardian in cases where the applicant is below the age of twenty one years. The Act establishes the criteria of “interests of justice”, “means” of the individual requiring legal aid and a base of “merit”. I think this provision is quite openly hypocritical given that "child offenders" in Malawi are now defined as only those under 16 years old age and not 18 as recommended by the UNCRC but yet this Act recognises that those under the age of 21 may be still be under the support of family members.
The providers of legal aid also include Legal Aid Assistants whose minimum requirements shall be prescribed by the Council of Legal Education, however minimum requirement for Legal Aid Advocates is not set out and so one would assume that a LAA need just be qualified from University in order to practice in the LAB.
Following modern trends in other jurisdictions, the Act recommends that legal aid should extend to education and awareness raising, in conjunction with legal advice and assistance which may also include alternative dispute resolution. Most of the recommendations of the Lilongwe Declaration on accessing legal aid in the Criminal Justice Systems of Africa and its Plan of Action have been included in Act, however, some of the recommendations have not been included. For example the Lilongwe Declaration's suggestion that incentives such as tax exemptions should be offered to lawyers in rural areas has not been included which is unfortunately given the difficulties that the LAD has currently in getting lawyers to staff even the Mzuzu office.
Currently lawyers are few in numbers (less than 250 lawyers are currently in private practice serving a population of approximately 15 Million) generally unavailable in rural areas, and law students are used with limitation. However our partners at the University of Westminster Centre for Capital Punishment Studies have recently set up a programme in the Blantyre LAD office which has been very successful over the last 4/5 months in training students to take bail statements in the prison and they are hoping to integrate this programme into the students clinical legal education within their college. In addition while Malawi has a very progressive Constitution and Bill of Rights access to Legal Aid is not available at all stages of the criminal justice process. It is particularly rare at police stations and only sometimes available in prisons or the lower courts. Access to Legal aid “at all stages“, is generally unavailable. Our project is currently undertaking research into the viability of using paralegals or legal assistants to represent defendants in the 3rd Grade Magistrates Courts as while they can currently draft papers and do much of the pre-trial work they do not have a right of audience before the courts and given than only about 10% of defendants are currently represented this would appear to be counter productive.