Malawi: Asserting the right to legal representation

Salc : Anneke Meerkotter

Factual Background

Mr D 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 D’s constitutional rights. His case was supported by the Centre for Human Rights Education, Advice and Assistance (CHREAA).

In the High Court, sitting as a Constitutional Court

The case was heard on 8 August 2018 in the Blantyre High Court, before a bench consisting of Justice Mtalimanja, Justice N’riva and Justice Chirwa. On 13 May 2019, the court handed down oral judgment in the case. At the time of writing, the written judgment was not yet available.

The bench unanimously held that there was a violation of the right to be informed of the right to legal representation. The majority, per Judges Chirwa and N’riva, held that the failure to be informed of the right to legal representation did not occasion a failure of justice. The minority judgment, per Judge Mtalimanja, held that the failure to inform an accused person of the right to legal representation, breached an absolute right and automatically meant any proceedings following therefrom were unfair, and any conviction and sentence ought to be set aside.

The court unanimously held that the judiciary should set down guidelines on how every criminal court should ensure that in every trial every accused person is informed of the right to legal representation.

SALC supported this case for a number of reasons: Currently legal aid in Malawi is only available to homicide accused, and even then, many people are unable to access legal aid. In addition, the prison system itself is woefully overcrowded. These two factors contribute to a range of fair trial violations, necessitating the development of guidelines for magistrates to ensure accused persons are informed of their rights.