Justice Sector and the Rule of Law - AfriMAP

More documents

Recommendations

Info

procedures that obtain in the procurement of goods and services under the relevant legal framework.327 The framework consists mainly of the Public Procurement Act (Act 8 of 2003), whichrequires that public institutions can only enter into contracts for the acquisition of goods andservices after open tendering processes regulated and monitored by the Department of PublicProcurement. In order for the selection process to be fair, it is recommended that the Ministry ofJustice and Constitutional Affairs issue a public invitation to tender to all lawyers and not only tothose on a pre-selected list of lawyers.The legal profession in Malawi is governed primarily by the Legal Education and LegalPractitioners Act (Act 20 of 1965). Section 21(1) of the act empowers the High Court to suspend,strike off the roll or admonish any practitioner who misleads the court; breaches certain standardsof professional practice relating to the taking of instructions, fees and touting; is convictedof a criminal offence punishable by imprisonment for one year or more; or is guilty of conducttending to bring the profession into disrepute. The High Court exercises this power either onits own initiative or upon application by the attorney-general. The Malawi Law Society, which isestablished by section 25 of the act, is also a critical part of the disciplinary system, particularlythrough its Disciplinary Committee. The committee is established under section 37 of the actand is composed of the solicitor-general 328 and two other members elected by the Society.The act empowers the committee to conduct inquiries into allegations of indiscipline madeagainst practising lawyers and, in appropriate cases, refer the matter to the attorney-general whomay apply to the High Court for an order suspending, striking off the roll or admonishing thelawyer in question. 329 Where the committee is not satisfied that a prima facie case of indisciplinehas been established against the lawyer, it is required to report this fact to the High Court, if thecourt had referred the matter to the committee in the first place, or to dismiss the case. Althoughit was not possible to access Malawi Law Society records on sanctions that have been imposed onlawyers for breaching discipline, the president of the Malawi Law Society suggested that the Societyhas received a number of complaints against lawyers mainly relating to allegations of overchargingfor legal services, embezzlement of clients’ money and failure to secure judgments that are satisfactoryto the client. 330 He also indicated that in a large number of cases, some of the allegations werebased on a misunderstanding of the law and legal practice by clients. In the few cases in whichallegations against lawyers were considered worthy of further action, the matters were referred to theDisciplinary Committee established under section 37 of the Legal Education and Legal PractitionersAct for its action. In at least three instances, lawyers have been barred or suspended from practicefollowing allegations of financial misconduct in relation to clients’ funds. 331
Both lawyers and members of the public feel that the system for enforcing discipline in thelegal profession needs to improve in effectiveness and efficiency. In the opinion of the presidentof the Malawi Law Society, the system is inefficient because of structural reasons. 332 First, thesolicitor-general, who has historically chaired the disciplinary committee, is based in the capitalcity Lilongwe, while most practising lawyers and the seat of the Malawi Law Society are inBlantyre, the country’s main commercial centre. This makes it difficult to arrange full meetingsof the committee. The law society president also attributed the inefficiency of the committeeto the lack of specific funding for its operations. Although the attorney-general thought thatfunding could come from the Ministry of Justice, the judiciary and the Malawi Law Society, 333none of these institutions had a specific budget provision for facilitating meetings of the disciplinarycommittee. The president of the Malawi Law Society also attributed the ineffectivenessof the regime for disciplining lawyers on the committee’s lack of punitive powers 334 and theabsence of rules of procedure. It has also been observed that the mechanism may also not beeffective because few members of the public are aware of its existence. 335
Page 1 and 2:
MalawiJustice Sector and the Rule o
Page 6 and 7:
Judicial review of the constitution
Page 8 and 9:
Numerous individuals and research o
Page 10 and 11:
The 1994 democratic Constitution th
Page 15 and 16:
This discussion paper is based on t
Page 17 and 18:
The Law Commission makes its recomm
Page 19 and 20:
In recent years, government respect
Page 21 and 22:
the effective follow-up of recommen
Page 23 and 24:
funds for this purpose are still su
Page 25 and 26:
The Constitution establishes safegu
Page 27 and 28:
In order for lawyers to effectively
Page 29 and 30:
enhancing consistency, compensation
Page 31 and 32:
tions consistent with human dignity
Page 33 and 34:
As a result of these barriers, most
Page 35 and 36:
The Human Rights Commission is esta
Page 39 and 40:
The end of Banda’s dictatorial ru
Page 41 and 42:
The adoption of a new Constitution
Page 43 and 44:
However, the government withdrew th
Page 45 and 46:
provides the legal framework within
Page 47 and 48:
order. In 1993, after pressure from
Page 49 and 50:
public servant, provides that a pub
Page 51 and 52:
his or her defence at the close of
Page 53 and 54:
The High Court has unlimited origin
Page 55 and 56:
Commission should first undertake f
Page 57 and 58: court of appeal for cases in tradit
Page 59 and 60: The Constitution provides for the L
Page 61: (CIDA), the Norwegian Agency for De
Page 64 and 65: annually financed by grants and con
Page 66 and 67: to pay lawyers in private practice
Page 68 and 69: give the attorney-general two month
Page 70 and 71: country-wide food shortage in 2000.
Page 72: upon the seriousness of the governm
Page 76 and 77: country’s vice-president. 173 Amo
Page 78 and 79: tutions of the justice sector were
Page 80 and 81: efforts to lobby the government to
Page 82 and 83: controlled by the Treasury. 201 The
Page 84 and 85: improving supervision of court regi
Page 86 and 87: of the deceased spouse. 230 They at
Page 88 and 89: for other sufficient reason’ to b
Page 91 and 92: Under the Banda dictatorship the ju
Page 93 and 94: after official working hours, there
Page 95 and 96: country. 267 Women, therefore, cons
Page 97 and 98: has been accepted in lieu of formal
Page 99 and 100: included extensive coverage of huma
Page 101 and 102: held disciplinary hearings relating
Page 103 and 104: for the case from the date when the
Page 105 and 106: By September 2005, the country had
Page 107: Legal Education and Legal Practitio
Page 112 and 113: lished between extreme poverty and
Page 114 and 115: on public goodwill to support any r
Page 116 and 117: crime-fighting operations. The oper
Page 118 and 119: Since 1996, the Public Service Act
Page 120 and 121: a change of behaviour of police off
Page 122 and 123: mechanisms for enforcing the author
Page 124 and 125: minister responsible for justice au
Page 126 and 127: The official language of the courts
Page 128 and 129: According to the study, the crimina
Page 130 and 131: his or her continued incarceration.
Page 132 and 133: Conference in 1995. 446 The confere
Page 134 and 135: the Prison Inspectorate, the Prison
Page 136 and 137: long-standing problems. 473 Followi
Page 138 and 139: national standards on the rights of
Page 140 and 141: There is only one known facility th
Page 143 and 144: Court fees in Malawi’s judicial i
Page 145 and 146: In addition to distance, other fact
Page 147 and 148: ing any person access to the courts
Page 149 and 150: There have been several initiatives
Page 151 and 152: Any person or group of persons with
Page 153 and 154: Mwadzangati v Daud Wood t/a Wood Co
Page 155 and 156: The full reports by the ombudsman a
Page 157 and 158: The powers of the Human Rights Comm
Page 159 and 160:
command the respect of their commun
Page 161 and 162:
officers of the ‘traditional or l
Page 163 and 164:
The justice sector in Malawi is hea
Page 165 and 166:
Another structure that provides the
Page 167 and 168:
Most development partners provide t
Page 169 and 170:
Donors hire their staff both locall
Page 171 and 172:
Department of Legal Aid, the judici
Page 173 and 174:
national budget. In the event, the
Page 176:
Indicative summary of donor assista
Page 182 and 183:
Phiri KM and Ross KR (eds.), Democr
Page 184:
Kalekeni Kaphale, lawyer in private
show all

Justice Sector and the Rule of Law - AfriMAP

Create successful ePaper yourself

Delete template?

Save as template?