Africa-Press – Malawi. The Malawi Law Society (MLS) has maintained its position against the proposed amendment of Section 14 of the Legal Aid Act to allow legal assistants—also known as paralegals—to be representing clients in subordinate courts, saying the move would promote inequality.
In its final submission to the Legal Affairs Committee of the National Assembly, MLS says allowing paralegals to represent people will only promote inequality between the rich, who will afford to be represented by legal practitioners, and the poor, who will only afford the paralegals.
MLS says the proposed amendment could take away from the less privileged what the Constitution has given them, in terms of legal representation, saying the Constitution stipulates that even less privileged people have a right to be represented by legal practitioners and that is why Legal Aid Bureau itself was established.
The proposed amendment reads in part: “[Legal assistants] shall have the right of audience before all subordinate courts to offer legal representation to persons who qualify for and have been granted legal aid under this Act.”
In the submission, signed by MLS President Patrick Mpaka and Honorary Secretary Chrispin Ngunde, lawyers say the most important thing is to ensure that the Legal Aid Bureau has enough resources to have enough legal practitioners to be representing people in accordance with the law.
“The Legal Aid Bureau must consider working with the Malawi Law Society and capitalising on Section 64(d) of the Legal Education and Legal Practitioners Act, as read with Section 38 of the Legal Aid Act, to cause adequate and consistent funding to the bureau for the bureau to build its capacity and employ the growing number of legal practitioners so that the bureau’s role is performed in accordance with sections 4 and 31 [of the] Courts Act and the Legal Education and Legal Practitioners Act, respectively,” MLS says in the submission.
MLS says the government must fulfil its mandate of ensuring that less privileged people have access to legal representation by a legal practitioner instead of using legal assistants as a way out.
Mpaka and Ngunde argue that the number of legal practitioners is increasing and that there is no need to flout provisions of the Constitution in the name of decongesting prisons, Malawi Police Service holding cells and reducing case backlog at Legal Aid Bureau.
“This year alone, 103 lawyers have already been admitted to the bar. The Legal Education and Legal Practitioners Act created Mile [Malawi Institute of Legal Education], which is training lawyers from all types of law schools. On average, at least 100 lawyers are getting admitted to the bar every year since 2019. The trend is likely to grow given the disbandment of the University of Malawi by which, we understand, more universities will be offering law degrees. This does not take into account private universities and foreign universities,” the submission reads.
MLS also notes that the Legal Affairs Committee of the National Assembly does not have a constitutional mandate to initiate the changes being proposed by the Legal Aid Bureau at this stage.
Chairperson of the Committee Peter Dimba said the submission will be regarded just like all other submissions the committee has received from stakeholders.
“MLS is just one of our stakeholders and we are regarding them as such. We have many stakeholders and no stakeholder is superior to the other. At the end of everything, we will report to Parliament when the next meeting starts on November 8 this year,” he said. Dimba also differed with MLS, saying the committee had all the powers to solicit views on the matter.
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