Malawi paralegal investigation given go-ahead by court

15 October 2021 · Carmel Rickard

The Malawi law society has lost the first round in its battle over turf: it had asked the high court to squash an investigation being planned by the legal affairs committee of the national assembly. The investigation could see a recommendation that paralegals be allowed to defend certain cases in the magistrates’ courts. However, Judge Mike Tembo refused to stop the inquiry, and said the action reminded the court ‘of the colonial days … in which the law severely limited black people’s political participation’.

Read judgment

The case was brought by the Malawi law society (MLS) that asked the high court to consider whether hearings planned by the legal affairs committee (LAC) of parliament were legal. The hearings would be to investigate proposed law amendments that might allow paralegals to appear and play a limited role in the lower courts.

Judge Mike Tembo, who presided in the MLS matter, described it as ‘the heated, topical issue’ of paralegals’ right of audience before the lower courts ‘and access to justice by the vulnerable people accused of minor offences in those courts through such audience.’

In its submissions to court, the MLS objected to the LAC ‘soliciting public views’, saying it was ‘unreasonable, procedurally unfair to the public and protection of the vulnerable public’ and that the planned consultations were beyond the legal mandate of the LAC.

Soliciting

The MLS also claimed that the functions of the LAC did not include soliciting of views by public hearings. But Judge Tembo put his cards on the table straight away: contrary to the submissions of the MLS, he said, ‘this court agrees with the argument by (the LAC) that, in fact, they have the function to look into (this) matter’.

It had been brought to the attention of the LAC that it should look into the problem raised by the legal aid bureau of congestion in prisons and whether it would help alleviate this congestion if the Legal Aid Act were to be amended to allow legal assistants or paralegals to be given audience ‘in relevant cases before subordinate courts given the inadequate numbers of legal practitioners within the legal aid bureau.’

Decongest

This could help ‘vulnerable people with minor offences who lack legal representation who have stayed on remand for long periods of time (to) access justice which will decongest the country’s prisons.’

Among other concerns, the MLS complained that legal aid to vulnerable people charged with any offence was supposed to be provided ‘by a legal practitioner’.

This meant that any change of the type being considered by the LAC would be unlawful because it tried to ‘abrogate the entrenched right of the vulnerable people of Malawi to … be represented by a legal practitioner at the expense of the state.’

Bad faith

Judge Tembo said he could find no grounds to suggest that the planned investigations were outside the powers of the LAC. In fact, the MLS had itself said, during a meeting with the LAC and others, that the issue in dispute in this case ‘calls for thorough and extensive consultation’.

It was therefore surprising – and might even show bad faith – that the MLS should now claim that the consultation process championed by the LAC was unlawful. ‘In fact, it is not,’ he said.

It was premature for the MLS to start expressing misgivings about the public hearings at this stage. He said it reminded the court ‘of the colonial days … in which the law severely limited black people’s political participation in this country.’

Civilised

It also reminded him of the period when women ‘were not allowed to hold property in what are now very civilised jurisdictions.’

‘It is consultation and deliberation that led to change of all those (laws) that are, with hindsight, now seen as oppressive and backward laws.’

If, after the LAC had presented its report to the national assembly, the MLS felt that steps were being considered that it thought were unlawful, it could take up the matter at that stage. ‘But to stop public hearings … as sought by the (MLS’s) intended application for judicial review is clearly premature and unjustifiable in the circumstances.’

Desperation

Following the decision of Judge Tembo, an MLS official said that the society’s executive committee would meet to decide on the way forward.

Local media quote Malawian law professor Danwood Chirwa, currently teaching at the University of Cape Town in South Africa, as saying that the actions of the MLS ‘had no legal basis and were indicative of heightened desperation.’

Carmel Rickard

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