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Malawi: Inequality and the myth of the right to legal representation

On 8 August 2018, the Malawi High Court in Blantyre heard a constitutional application relating to the case of State v Willias Daudi. Mr Daudi had been convicted of robbery after a full trial. At the time of his trial, however, he was not informed of his right to legal representation, and he further did not benefit from the offer of legal aid. His lawyer, Fostino Maele, filed an application alleging a violation of Mr Daudi’s constitutional rights. The case was heard before a bench consisting of Justice Mtalimanja, Justice N’riva and Justice Chirwa.

Under Malawi’s Constitution every detained person has the right to consult with a legal practitioner. The right to a fair trial in the Constitution further incorporates the right to be represented by a legal practitioner of your choice. Both a detained and accused person has the right to be provided with legal representation at the State’s expense if “it is required in the interests of justice”. Importantly, in order to exercise these rights, the Constitution provides for the right to be informed of your rights.

Malawian courts have held that these rights translate into an obligation on every magistrate to point out to the accused that it is an advantage to have the assistance of counsel and that he or she is entitled to have counsel.

The applicant submitted that there is no equal protection before the law if only accused in homicide cases are allowed to access legal aid. The State countered that the reason why legal aid is only provided in homicide cases, is because these cases are tried in the High Court, which make them more complex. It further submitted that the sentences for homicide can range from 15 years to life imprisonment, whilst sentences in robbery cases tend not to exceed 15 years.

Admittedly, the issue before the court is not an easy one to determine. On the one hand, where the Legal Aid Bureau is cash strapped, the right to access legal aid when the interests of justice so require can perhaps only be progressively realised. On the other hand, the right as set out in the Constitution is not couched as one to be progressively realised and is framed instead as an automatic entitlement if the interests of justice requirement is met.

It is important to consider the fundamental power imbalance that exists between a presiding officer, prosecutor and unrepresented accused, even in a subordinate court. In addition, reserving legal aid for cases where a sentence of 15 years to life is likely to be imposed, ignores the reality of Malawi’s prisons. Malawi prisons frequently make newspaper headlines for overcrowding, lack of food and poor prison conditions. The inhumane and degrading treatment to which prisoners are subjected increases the necessity of informing an accused person of his or her right to legal representation and providing legal aid at the State’s expense where the interests of justice so require.

Had Mr Daudi obtained the help of a legal representative, the outcome of the trial might well have been different. By ignoring the accused’s right to legal representation and by failing to inform him of such right, the magistrate showed disregard for the human dignity of the accused and for the hardship inherent in imprisonment.

In a country where lack of resources inhibits the ability to offer legal aid in all criminal cases, the State should investigate other options to ensure access to legal representation as enshrined in the Constitution. Such options can include public defender offices, judicare programmes, justice centres, independent legal aid institutions, universities and law clinics, pro bono services offered independently by private lawyers, and non-governmental organisations. Within all these options, paralegals have an important role to play in facilitating access to justice.

By Victor Mhango (CHREAA) and Anneke Meerkotter (SALC)

The application was supported by the Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC).

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