Justice Sector and the Rule of Law - AfriMAP

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minister responsible for justice authorised such representation. 402 The position changed withthe 1994 Constitution, which guarantees every person the right to be represented by a lawyer ofhis or her choice; or, where it is required in the interests of justice, to be provided with a lawyerat the expense of the state. 403 This is broadly consistent with the standards set down in internationalhuman rights treaties and other norms such as the locally generated Lilongwe Declarationon Accessing Legal Aid in the Criminal Justice System in Africa. 404Due to staff shortages, the Legal Aid Department of the Ministry of Justice has limited capacityto fulfil its mandate. In September 2005, the department had a total of 10 lawyers and was,therefore, unable to meet the high demand that arises from the fact that most Malawians cannotafford to hire private lawyers. 405 This was underscored as follows in a report by the PrisonsInspectorate:In practice, most detainees who are awaiting trial do not benefit fromlegal representation. The Legal Aid Department of the Ministry of Justiceis understaffed and under-resourced…. This is not likely to change soon,given [among other reasons] the small number of lawyers graduating eachyear, [and] the inability of Government to provide adequate salaries toretain lawyers who end up leaving for the private sector. 406Though there are no reliable statistics, judicial officers and lawyers estimate that fewer than10 per cent of criminal defendants are represented. 407 The exception is in homicide casesin which the practice is that all defendants are represented either by private lawyers of theirchoice or lawyers supplied by the department of legal aid. 408 However, given the low numbersof lawyers with substantial experience, many defendants are not able to obtain the servicesof lawyers who meet the requirements of the United Nations Basic Principles on the Role ofLawyers (1990) which are that the right to legal representation entitles a person to have a lawyerof ‘experience and competence commensurate with the nature of the offence’ to provide ‘effectivelegal assistance’. 409 As it happens, in Malawi, defendants charged with murder are sometimes
assisted by lawyers who have less than one year’s experience in legal practice, 410 which, arguably,violates international guarantees of fair trial. 411A number of bodies have undertaken initiatives to supplement the provision of legal aidby the Department of Legal Aid. NGOs such as Civil Liberties Committee (CILIC), Centre forAdvice and Research and Education in Rights (Malawi CARER), Women Lawyers Associationand Malawi Law Society provide some pro bono legal services, including representation in litigation.The NGOs are supported in this activity by development partners and state institutions.A recent example is an arrangement which was agreed between the Lilongwe Chapter of theMalawi Law Society and the Malawi Human Rights Commission in August 2005. Essentially,the agreement requires the Commission, with funding from the United Nations DevelopmentProgramme (UNDP), to facilitate the delivery of pro bono legal services to its complainants bylawyers who are members of the Malawi Law Society. 412In the absence of sufficient numbers of lawyers, paralegals provide a very valuable service inproviding legal services to criminal defendants. The most extensive paralegal scheme in Malawiis the Paralegal Advisory Service. (See the case study below)
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MalawiJustice Sector and the Rule o
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Judicial review of the constitution
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Numerous individuals and research o
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The 1994 democratic Constitution th
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This discussion paper is based on t
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The Law Commission makes its recomm
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In recent years, government respect
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the effective follow-up of recommen
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funds for this purpose are still su
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The Constitution establishes safegu
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In order for lawyers to effectively
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enhancing consistency, compensation
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tions consistent with human dignity
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As a result of these barriers, most
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The Human Rights Commission is esta
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The end of Banda’s dictatorial ru
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The adoption of a new Constitution
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However, the government withdrew th
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provides the legal framework within
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order. In 1993, after pressure from
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public servant, provides that a pub
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his or her defence at the close of
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The High Court has unlimited origin
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Commission should first undertake f
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court of appeal for cases in tradit
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The Constitution provides for the L
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(CIDA), the Norwegian Agency for De
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annually financed by grants and con
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to pay lawyers in private practice
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give the attorney-general two month
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country-wide food shortage in 2000.
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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 and 108: Legal Education and Legal Practitio
Page 109: Both lawyers and members of the pub
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 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
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Indicative summary of donor assista
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Phiri KM and Ross KR (eds.), Democr
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Kalekeni Kaphale, lawyer in private
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