The challenges facing the Law Society of Malawi, whose chief officer has been on a fact finding visit to Scotland; and one Scots lawyer's account of his visit to that country

Can you imagine a Law Society regulating its profession with a staff of four? Or a legal profession of 300 for a population three times that of Scotland? Such is the situation in Malawi, the southern African state with which Scotland is developing numerous links to help it find its place in the modern world.

The links extend to the respective Law Societies, and after Scotland’s Lorna Jack and her Malawian counterpart Paula Caetano met at the International Bar Association in Vancouver last year, an invitation was extended to the Malawian executive director to see how things are done here. The result was a week-long visit in May, during which she found time to speak to the Journal despite a packed schedule of meetings. (“Don’t even ask!” she grimaced when I raised the subject of her programme.)

“You’d be surprised, we do exactly the same things, if on a smaller scale”, she replies when asked what functions she and her three colleagues (an IT/projects manager, an administrative assistant and an office assistant) can provide for her members. “We do regulations for admission of new practitioners; we renew licences; we receive complaints from the public regarding practitioners; we act as a watchdog of Government along with some other civil societies; we hold the usual meetings, events. We have a code of conduct and we do inspections of private firms.”

And yes, there is a Malawi Law Journal – four volumes to date, each of two issues.

Member priorities

What can Caetano realistically hope to take back? “The purpose is to improve our service to our members as well as the public. The Law Society of Scotland is a pivotal organisation so basically I’m trying to learn how I can improve our Society and its standards as well as our members.”

She has observed what the Scottish Society’s members contribute and would like to inspire more commitment and support back home. You might think that with such a small profession, at least the Society and its members would be quite close knit. But just as in Scotland, it feels a lack of engagement from some members – even if Caetano assures me that they welcome the support the Society provides. Some are indeed committed, and the Society has a ruling executive committee (equivalent to Council) of seven, including the usual office bearers, all elected annually but renewable.

Better availability of information is another aim, including access to the directory of lawyers maintained by the Society. And with support from the Open Society Initiative of Southern Africa they intend to revive their outdated website, hopefully very shortly.

One handicap preventing greater entry to the profession in Malawi is that only a qualification from the University of Malawi is legally recognised at present, though Caetano hopes this may change. (Some foreign qualifications from common law jurisdictions are also acceptable.) Lawyers who have made it into practice are mostly generalists in private and commercial law. With their small numbers concentrated in the cities, many people have to travel long distances to have a chance of accessing justice. The pace of law reform has improved in the last couple of years after a period when little seemed to be happening.

Unwelcome watchdog

Again as in Scotland, the Malawian Society has a public interest duty, as a result of which it has found itself involved in litigation over the death penalty. “We comment on issues that affect the public, on Government and rule of law”, Caetano says. “And as a watchdog of Government I mean it’s entrenched in our act, our strategic plan that we monitor Government to make sure it’s accountable and transparent and as a Law Society we have a duty to the public to uphold our national constitution to see that it’s not abused by the powers that be.”

It can readily be imagined that is a difficult job for a small body in an emerging nation whose President was reported only this month to be prepared to forgo foreign aid rather than accept criticism of his rule; and it is one that does not endear the Society to the Government. Caetano accepts that relations can be difficult.

She adds: “We don’t get any subvention from Government even though we are created by statute, because we fear they may want to influence decisions of the Society. As a result, we operate on a strict budget because of the financial constraints we have.” Each member has to pay MK80,000 (about £330) for their annual practice licence, a high price in a country with an average per capita income of less than $1 a day. “If members decided not to pay then the Society would be crippled, so I suppose it’s a good thing that membership is mandatory.”

Going forward

The Society does have the benefit of the digital age. All lawyers are email and internet enabled, though quality of access can be variable. And there is “Googlegroups”, a web-based group for members. “It’s the fastest and easiest way of contacting all our members and discussing the law, politics or football!” (Perhaps Malawian society really isn’t that different…) “However, recently some people from the media inadvertently joined or hacked into this group and private issues among lawyers ended up in the press. So we are working towards something more private and secure as soon as possible because our members found it a useful discussion forum.”

Apart from our Law Society, other organisations such as the Crown Office and Procurator Fiscal Service, and the Scottish Law Commission, are building links with their Malawian equivalents, and representatives have visited the country. Is there a role for individual lawyers?

“Yes there is. It depends on the willingness of the Scottish lawyers, but there is a lot that could be done. They’ve got more experience, and could give lessons in continuing legal education – what you call CPD. If they are willing there would be a role for them to play in delivering some of these services.”

The visit is just a beginning, and neither side expects a comprehensive action plan to result from the week, but they hope to develop some next steps to working together and see what emerges. Is there anything you would like to add, I ask Caetano as we conclude.

“Scotland is cold!”

Wanted: trial training

I spent 10 days working with lawyers from the Legal Aid Office in Lilongwe, the capital of Malawi, in September last year. The trip was organised by Challenges Worldwide and my remit was to find out whether Scottish lawyers could provide any assistance to the chronically underfunded criminal justice system in Malawi.

The population of Malawi is about 15 million and to provide legal aid services they have 15 qualified lawyers. In comparison, Edinburgh, with a population of 500,000, has approximately 30 lawyers working full time at the sheriff court doing criminal legal aid work and about the same number doing civil work.

The Legal Aid Office of Malawi has difficulty in keeping qualified staff. The pay is much lower than in private practice and often lawyers stay for only a short time before moving on. As a consequence 90% of the lawyers are between one and four years qualified. In addition, there is no training period as in Scotland and so the lawyers starting at the Legal Aid Office are straight out of university and unlikely to have been in a court before.

The lawyers deal with both civil and criminal work. The civil work consists mainly of child maintenance and road accident claims. Homicide cases are dealt with in batches when there is funding available, and representation is guaranteed by the constitution. When those trials come up, the lawyers drop everything else to deal with them, which means that there is no representation in the lower courts.

Malawi is a predominantly rural society and most of the murders take place in the villages – hoe handles or panga knives feature regularly as the murder weapon. Investigation is extremely low tech.

A typical file will have four or five civilian witness statements, one police statement and an autopsy report, all handwritten and at most one page long. Fingerprint, DNA and photographic evidence are unheard of and there are no forensic pathologists or social workers. It is perhaps not surprising then that most murder trials last around two days.

Loness Mikongwe, a veteran aged 27, who has conducted 200 murder trials, told me that the legal aid lawyers are aware of the limitations within which they operate. She said that better funding of the whole system would help to avoid possible miscarriages of justice, but on a practical level the lawyers would like high-quality advocacy training, mentoring by experienced lawyers, and assistance from paralegals to ease the burden of dealing with civil work when murder trials are the priority.

The Crown Office and Procurator Fiscal Service has put in place a training scheme based on the NITA method of advocacy training, which has proved extremely popular among Scots lawyers, but as yet the first batch of trainers have not been out to Malawi for political reasons. In addition, several experienced practitioners have expressed a willingness to go out to Malawi to act as mentors.

My hope is that relationships between Scots lawyers and their counterparts in Malawi will enrich both legal systems.

The Author
Duncan Hughes is a partner at Hughes Walker, Edinburgh
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