Malawi: Paralegal Advisory Service
The criminal justice system in Malawi suffers from many ailments. Prisons are overcrowded and inadequately resourced, resulting in unhygienic conditions for most inmates. Lay magistrates often stand in for judges due to the lack of sufficient numbers of qualified judicial personnel, which compromises the legal integrity of the pretrial process. The quantity of lawyers is insufficient to cope with the demands of the state and the general public. Free legal aid is available only in capital cases. Courts are poorly resourced and have huge backlogs, especially in homicide cases. At the time of writing, 321 homicide remandees have been awaiting trial for longer than two years. Suspects are hastily arrested, typically before an investigation has been completed. Prosecutions are largely conducted by police officers who are not qualified in law. Before the advent of the Paralegal Advisory Service (PAS) some prisoners were entirely forgotten by the justice system. A 1997 report on the backlog of homicide cases in Malawi found 57 accused inmates in prison whose case files could not be traced.
The problems of pretrial detention in Malawi began to receive greater international public attention in the late 1990s after Penal Reform International (PRI), acting under the aegis of the African Commission on Human and Peoples’ Rights, organized the first Pan-African Seminar on Prison Conditions in Africa. Held in Kampala, Uganda in 1996, the seminar was attended by human rights non-governmental organizations (NGOs), senior prison officers and government representatives from 40 African countries (including Malawi).
The movement to establish a Paralegal Advisory Service drew important ideas and political legitimacy from some of the conclusions made at the Kampala meeting. The Kampala Declaration on Prison Conditions in Africa, for example, insisted that dangerous and violent crime could neither justify nor explain high rates of pretrial detention since the research reports found that “the majority of detainees are in pretrial detention for petty crimes or serving short terms of imprisonment.” Perhaps the most important asset of the Kampala Declaration was its insistence on unconventional approaches to justice and the vital role of NGOs. One presenter, Amanda Dissel, of the Johannesburg-based Centre for the Study of Violence and Reconciliation, specifically recommended that, “paralegals, articled clerks and unqualified legal persons should be allowed to assist prisoners.” And the Plan of Action of the Ouagadougou Declaration on Accelerating Prison and Penal Reforms in Africa (2002) promotes the “greater use of paralegals in the criminal process to provide legal literacy, assistance and advice at a first aid level.”
In 1999 three local human rights NGOs conducted a study of the conditions of juveniles in three main prisons in Malawi. It found that of the 179 young people in the juvenile section in Zomba Central Prison, not one had been lawfully detained. In some cases, the remand warrants had expired; in most, the detainees in the juvenile wing were already adults. Significantly, the study found that none had been legally advised or represented and that none had committed offences that were “so depraved” or behaved in a manner “so unruly” as to justify remand to prison.
The result of the study was to recommend setting up a paralegal service to work in the prisons and monitor remand cases. Paralegals could be more accessible compared to lawyers who were urban- based and whose legal fees were beyond reach of most Malawians. They could bring basic legal services to those who need it most by working in prisons, police stations, and courts on a daily basis. Moreover, paralegals could reach hundreds of prisoners through their legal clinics at once, unlike lawyers who work on a one-to-one basis.
In May 2000, together with local NGOs, and with financial assistance from the DFID-funded Malawi Safety, Security and Access to Justice (MaSSAJ) Programme, PRI established the Paralegal Advisory Service with eight paralegals working in Malawi’s four main prisons (Chichiri, Maula, Mzuzu and Zomba Central prisons). The paralegals are centrally coordinated by a PAS national coordinator and employed by four NGOs working in partnership with criminal justice agencies. The paralegals are lay workers with elementary training in law; they must hold a high school diploma and undergo a month long course. The Paralegal Advisory Service is assisted by an advisory council comprised of senior government officials and representatives from the judiciary.
At the outset, the pilot PAS project focused on the homicide remand backlog since DFID had provided funds for its reduction. PAS paralegals educated prisoners awaiting trial on capital offenses in the substantive law, procedures, and basic evidentiary rules surrounding the charge of murder or manslaughter. They observed 90 capital trials in the High Court. They found that most homicide charges were reduced to manslaughter. The paralegals also attended cases involving vulnerable groups in prisons, namely, young offenders, women, and the mentally and terminally ill, to assist in their early release. The paralegals then set about finding out what assistance prisoners lacked.
First, they found that prisoners did not understand the law. PAS therefore developed a series of practical workshops to inform prisoners on the criminal law and procedure, and enable them to better represent themselves in court (as they cannot afford the services of a lawyer). Moreover, PAS developed a paralegal aid clinic workshop on bail. This involves paralegals interviewing awaiting trial prisoners and assisting those who wish to complete a standard bail application form and then lodge this with the appropriate court. Second, they learned that many remand prisoners were held unlawfully, were “overstaying” on remand, or did not know how to access bail. In response, paralegals provide legal advice and assistance to remand prisoners who are being detained unlawfully, inappropriately or for undue lengths of time, with priority given to vulnerable groups such as women with small children and juveniles.
Over time, PAS discovered a need to go backwards in the penal chain, because many problems stemmed in large part from detention or charging decisions made by the police and the courts. Consequently, in 2003 PAS extended its services to the courts and police to provide a broader legal aid service to all those in conflict with the law at the outset of the criminal justice process. In early 2007, PAS employed 38 paralegals working in 24 prisons (covering 85 percent of the prison population), five courts and five police stations. PAS provides legal assistance and advice to poor people using non-lawyers on three different “front lines” of the criminal justice system—in prison, in police stations, and at court. PAS seeks to reduce not only the frequency of the use of pretrial detention, but also to shorten its duration by improving the efficiency of the criminal justice system. And by maintaining a constant dialogue with the Malawi Prison Service, Malawi Police Service, and judiciary, PAS has enabled the justice system to operate smoothly. Since the project’s inception in May 2000, none of the criminal justice agencies have complained about the presence of paralegals at police stations, courts or in prisons.
A meaningful assessment of the impact of PAS requires an examination of trends in detention and levels of prison congestion before and after paralegals began to offer assistance to inmates. Although before and after comparisons are not perfectly suited for this analysis, official data strongly suggest PAS has made an important independent contribution to legal aid in Malawi and the reduction in the size of the remand population in particular. At the end of 1999 there were 6,959 inmates in prison, of which 35 percent were on remand; in 2007 inmates on remand constituted only 17 percent of all prisoners.
Credit for these advances cannot be fully attributed to PAS. Other factors can explain the decrease in the proportion of inmates on remand, including the length of sentences, the volume of arrest, and the speed of police investigations. Still, many criminal justice stakeholders believe that PAS has played an instrumental role in reducing the size of the remand population. In addition, paralegals have ‘energized’ the criminal justice system by enabling prisoners to represent themselves in court, reviewing remand warrants to reduce illegal use of them by police, monitoring docket reviews to ensure that remand prisoners are not lost or overlooked, encouraging magistrates to visit prisons, recommending diversion of some juveniles to police, and expediting the judicial process with plea agreements. An independent evaluation concluded in 2004, “Since the Paralegal Advisory Service (PAS) came into operation in May 2000, the Service has become an important actor in the protection of poor people in conflict with the law.”
Legal aid poses a vexing problem for all governments because of its potentially high costs as crime rates and the number of accused persons increase. Costs are spiraling because of the exponential growth in the number of defendants, and few cost recovery mechanisms work well because of the economic disempowerment of the beneficiaries of the service. Some proponents of expanded access to legal representation therefore advertise the overall cost effectiveness of the service and value for money. These benefits are not easily measured, but the role that legal aid can play as an engine to improve the effectiveness and efficiency of the criminal justice system cannot be over emphasized. The results achieved by PAS are telling: non-lawyers are cheaper than lawyers and can, given proper training, enable people to defend themselves and provide appropriate advice and assistance that benefit the maximum number of people.
Clifford Msiska
Penal Reform International, Lilongwe, Malawi