Legal Aid Act
- Commenced on 1 May 2013
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Legal Aid Act.
2. InterpretationIn this Act, unless the context otherwise requires—“Bureau” means the Legal Aid Bureau established under Part III of this Act;“civic education” means civic education in legal literacy or the general dissemination of information about the law to the general public and conducted as part of legal aid service under this Act;“contribution” means a contribution to the costs of the proceedings or matter in respect of which legal aid is or is to be given;“cooperation agreement” means a contract or agreement entered into between the Legal Aid Bureau and a civil society organization or a person or body, engaged or interested in the provision of legal aid, for the rendering of legal aid services wholly by such organization, person or body or jointly with the Bureau;“contingency fee agreement” means an agreement between the Bureau and a legally aided person by which the Bureau agrees to represent such person on condition that compensation to the Bureau shall be a percentage of the amount recovered in favour of such person.“criminal investigations” means investigations relating to an offence or to a person accused or convicted of an offence;“criminal proceedings” means proceedings before a court, tribunal, or other body against a person for—(a)an offence;(b)contempt of, or before, such court, tribunal or other body;“Director” and ‘’Deputy Director” means Director and Deputy Director of the Bureau appointed under section 9, respectively;“legal advice” means oral or written advice on the application of written law or common law to any particular circumstances that have arisen in relation to the person seeking advice and as to the steps which that person might appropriately take having regard to the application of the law to those circumstances;“legal aid” means service provided to persons under this Act by way of legal representation, legal advice or legal assistance;“Legal Aid Advocate” means a person qualified as a legal practitioner appointed as a Legal Aid Advocate under section 12;“Legal Aid Assistant” means a person who is not qualified as a legal practitioner but has attained the requisite minimum level of legal education as; may be prescribed by the Council of Legal Education under the Legal Education and Legal Practitioners Act to enable such person to be in full time employment with the Bureau or to provide services under any clinical law studies programme in partial compliance of the certification requirements for a legal practitioner under the Legal Education and Legal Practitioners Act;[Cap. 3:04]“Legal Aid Fund” or “Fund” means the Legal Aid Fund established under section 39;“legal assistance” means assistance in taking any of the steps which a person might take, including steps with respect to proceedings, having regard to the application of the law to any particular circumstances that require legal action, whether by taking such steps on behalf of that person, including assistance by way of representation, or by assisting that person in taking such steps on his own;“legally aided person” means a natural or legal person in receipt of legal aid in accordance with this Act;“Public Appointments Committee” means the Public Appointments Committee of the National Assembly established under section 56 (7) of the Constitution; and“Registrar” means the Registrar of the High Court of Malawi.
Part II – Legal Aid Bureau
3. Establishment of the Legal Aid BureauThere is hereby established the Legal Aid Bureau (in this Act otherwise referred to as the “Bureau”) which shall be a Department of the Government.
4. Duties and functions of the Bureau
5. Powers of the Bureau
6. Independence of the Bureau
Part III – Staff of the Bureau
7. Director and Deputy DirectorThere shall be a Director and a Deputy Director of the Bureau whose offices shall be public offices.
8. Qualifications of Director and Deputy DirectorNo person shall be qualified to be appointed Director or Deputy Director unless he is entitled to practise as legal practitioner under the Legal Education and Legal Practitioners Act and has been entitled so to practise for a period of not less than ten years.[Cap. 3: 04]
9. Appointment of the Director and Deputy Director
10. Term of office of Director and Deputy DirectorThe Director or Deputy Director shall be appointed for a term of five years and shall be eligible for re-appointment for such further terms not exceeding five years as the Public Appointments Committee may consider appropriate.
11. Removal from officeA person appointed to the office of Director or Deputy Director shall not be removed from office except—
12. Other employees of the Bureau
13. Delegation of powersThe duties, functions and powers of the Director may be performed or exercised by—
14. Criteria for recruiting Legal Aid AssistantsIn recruiting Legal Aid Assistants, the Bureau shall take into account academic qualifications, course work, training, and the experiential acquisition of knowledge and skills and shall have due regard to the need for Legal Aid Assistants to be able to—
15. Terms and conditions of serviceThe terms and conditions of service of the staff of the Bureau shall be determined by Parliament on the recommendation of the Director after consultations with the Secretary to the Treasury.
Part IV – Provision of legal aid
16. Extent of legal aidLegal aid shall consist of—
17. Legal aid in criminal mattersThe Bureau shall—
18. Eligibility for legal aid in criminal matters
19. Legal aid in civil matters
20. Eligibility for legal aid in civil mattersA person shall be eligible to receive legal aid in civil matters if, in the opinion of the Director, such person—
21. Assessment of means of an applicant
22. Contributions towards legal aid
23. Legal aid by courts
24. Appeals against decision of Director
25. Termination and revocation of legal aid
26. Variation of grant of legal aid
27. Effect of revocation and termination of legal aid
28. Cooperation agreements
Part V – Instruction of private legal practitioners
29. Instruction of private legal practitioners
30. Panels of legal practitioners
31. Conditions applying to members of a panel
32. Breach of service provision contracts
34. Confidentiality with regard to auditExcept in the performance of the duties, functions and powers conferred by this Act or by any other written law on the Director or any other employee or an agent of the Bureau, the Director or such employee or agent shall not disclose to any person any information that shall come to the attention of the Director or the employee pursuant to any audit carried out under this Act and all such information shall otherwise remain confidential.
Part VI – Regional and District Legal Aid Centres
35. Regional Legal Aid Centres
36. District Legal Aid Centres
37. Competence of Legal Aid Advocates and Legal Aid AssistantsThe placement or posting of a Legal Aid Advocate or Legal Aid Assistant in a regional or district centre shall not preclude that Legal Aid Advocate or Legal Aid Assistant from performing legal aid duties in any other regional or district centre.
Part VII – Financial provisions
38. Funding of the Bureau
39. Legal Aid Fund
40. Deductions from awardsThe Director shall, for the benefit of the Fund, deduct such amount as the Minister may, on the advice of the Bureau, prescribe by Order published in the Gazette from—
41. Costs awarded to legally aided persons
42. Costs not to be awarded against legally aided personsNotwithstanding any other written law, a court shall not award costs against a legally aided person.
43. Payments into the fundsAny contributions, deductions from awards, contingency fees and costs awarded by the courts due to the Bureau may be paid directly to the Fund.
44. Accounting and auditThe Bureau shall be accountable to Parliament for its funds in the manner applicable to Government departments and the accounts of the Bureau shall be liable to audit by the Auditor General.
Part VIII – General
45. Parties to submit mediation in certain cases
46. Bureau to enter into contingency fee agreements
47. Legal aid in matters before a tribunal
49. Repeals and savings
History of this document
31 December 2014 this version
01 May 2013