Expanding indigent people’s right of access to justice and fair trial through a limited right of legal representation by paralegals in Malawi

Abstract

In Malawi, the Legal Aid Bureau is mandated to offer legal aid to the indigent and other vulnerable groups through its lawyers and paralegals, also known as legal aid assistants. Legal aid is available in the form of legal advice, legal assistance, legal literacy services, and legal representation. While both Legal Aid Bureau’s lawyers and paralegals can jointly offer the first three forms of legal aid, only lawyers and not paralegals can offer legal aid through legal representation. This is chiefly because the Legal Education and Legal Practitioners Act 31 of 2018 reserves legal representation in court for lawyers admitted to the Bar. In a country with insufficient lawyers generally and at Legal Aid Bureau in particular, this leaves a huge lacuna in the legal representation of the indigent and hence their right to access justice, effective remedies, and fair trial contrary to Malawi’s obligations under the Constitution of the Republic of Malawi 1994 as well under the African Union and United Nations human rights systems. This study contends that the law should reflect the realities and needs of society, solve a society’s problems, be rational and just, and be dressed in ubuntu or humaneness in sync with sociological, ubuntu, and natural law legal theories. Consequently, allowing legal aid paralegals to represent clients in subordinate courts would encapsulate the foregoing jurisprudential underpinnings and be a plausible solution to expanding the indigent people’s right to access justice and fair trial in Malawi. The study postulates that this solution comports with Malawi’s socioeconomic status and reality and is justifiable under the Constitution of the Republic of Malawi 1994, the African Union and United Nations human rights systems, and comparable foreign law. Therefore, it recommends the amendment of relevant statutes, especially the Legal Education and Legal Practitioners Act 31 of 2018 and Legal Aid Act 28 of 2010, to allow and regulate legal aid paralegals to offer limited legal representation in all subordinate courts in Malawi.