Justice Sector and the Rule of Law - AfriMAP

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two offices throughout the country, located in the cities of Blantyre and Lilongwe.Lawyers and paralegals working for a number of NGOs also offer pro bono legal advice incivil matters. Among the organisations that provide lawyers who offer free legal advice to indigentclients are the Centre for Advice and Research and Education on Rights (CARER), the CivilLiberties Committee (CILIC), the Society for the Advancement of Women (SAW), the WomenLawyers Association, the Malawi Law Society. CARER and the Paralegal Advice Centre (Parece),also offer free legal advice in civil matters through paralegals. Mainly with assistance provided bythe United States Agency for International Development (USAID), the former provides at least14 trained paralegals in 10 locations, including a number of rural areas, and in the first half of2003 alone, the paralegals had provided assistance in more than 400 cases. 527 In addition to thetrained paralegals, CARER also trained at least 450 community-based volunteers to provide legaladvice in their areas. 528 For its part, Parece is an organisation run mainly by law students of theUniversity of Malawi who operate a drop-in advice centre at their campus in Zomba. 529There are at least three limitations of the legal advice services offered by NGOs. First, giventhe low number of lawyers and paralegals available to do the work, the organisations cannot meetthe demand. Second, the organisations’ lawyers and paralegals are not physically accessible tomost of their potential clients because, with the exception of CARER, they mostly operate fromoffices located only in the urban centres of Blantyre and Lilongwe. Third, the organisations donot coordinate their activities sufficiently to facilitate the establishment of common standards,optimisation of synergies and sharing of experiences and lessons.In order to address the problems, organisations involved in providing free legal advice mustdevelop a joint strategy for best delivering such service, particularly to the poor and the mostvulnerable among them, such as women. The strategy must, among other things, put in placea mechanism for developing linkages with institutions that train lawyers and paralegals witha view to increasing the number of personnel that they train every year, and providing themwith opportunities to do internships within the organisations as part of their training. Anotherelement of the strategy must be to increase coordination among the organisations. Most of theorganisations are members of the Malawi Human Rights Consultative Committee and could useit to establish a network of legal advice organisations to focus on matters of mutual interest.Every person has a right to appear in person in the formal court system and there is no lawthat compels any person to have legal representation in proceedings in the formal court system.In practice, most people appear in person because they cannot afford to hire lawyers. However,their ability to defend and advance their interests is predictably constrained by their limitedcapacity to handle the procedural technicalities, language and alienating atmosphere of theformal courtroom. Any steps that can improve their access to legal aid must therefore be takenas a matter of urgency.
There have been several initiatives aimed at reducing the cost of access to the courts by improvingthe efficiency with which claims are processed. In the absence of small claims courts toenable individuals to litigate less valuable cases at low cost, 530 in 2000, the courts adopted theSubordinate Courts (Small Claims Procedure) Rules as subsidiary legislation under the CourtsAct. 531 The rules permit magistrates to apply special, and more simplified, procedures to smallclaims. However, the potential of these to improve the ability of the majority of people to enforcetheir rights remains constrained by other factors discussed elsewhere in this report which limitaccess to the courts generally, including physical inaccessibility of the courts and the use ofEnglish as the official language in judicial proceedings. The reduction of some costs in litigationis, therefore, not enough to facilitate access to the formal court system for the majority of peoplewho, consequently, have to rely mostly on informal systems of justice.The Constitution identifies as a ‘principle of national policy’ that the state should set asone of its goals the peaceful settlement of disputes. To this end, it should adopt ‘mechanismsby which differences are settled through negotiation, good offices, mediation, conciliation andarbitration.’ 532 In the spirit of that principle and in the exercise of rule-making power grantedunder section 67 of the Courts Act, 533 the chief justice promulgated the Courts (MandatoryMediation) Rules in August 2004. 534 The rules require all proceedings in certain matters to bemediated before being subject to trial. 535 Under this scheme, mediation is performed by mediatorswho are appointed by the parties to a dispute from a list compiled by the assistant registrarof the High Court and Supreme Court of Appeal with the approval of the chief justice. 536Among other things, the rules also provide that, during mediation, the parties should striveto reduce cost and delay, and to facilitate the early and fair resolution of their dispute. 537 Onelimitation of these rules is that they are not applicable in a wide range of cases, including proceedingsthat involve interpretation of the Constitution, proceedings concerning the liberty ofan individual, proceedings commenced under the Subordinate Court (Small Claims Procedure)Rules, and proceedings for judicial review, summary possession of land, injunctions, expeditedoriginating motions and ‘any such matters where by law or practice, the trial is expedited.’ 538In spite of these limitations, the mandatory mediation regime has the potential of reducingthe cost of legal action in a significant number of cases. However, since the rules have been in
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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
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country’s vice-president. 173 Amo
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tutions of the justice sector were
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efforts to lobby the government to
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controlled by the Treasury. 201 The
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improving supervision of court regi
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of the deceased spouse. 230 They at
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for other sufficient reason’ to b
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Under the Banda dictatorship the ju
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after official working hours, there
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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 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: ing any person access to the courts
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
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Justice Sector and the Rule of Law - AfriMAP

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