Malawi revises criteria of admitting lawyers:  Bill to deal with embezzlement of client’s funds

Malawi government is revising the criteria of admitting lawyers to practice  to curb the shortage of licensed practitioners in the country, Minister of Justice and Constitutional Affairs Samuel Tembenu has said.

Lawyers  who attained their training outside the University of Malawi are currently required to sit s for a Malawi Law Examination administered by the Council for Legal Education  to admit them to the Malawi bar.

But tabling the Legal Education and Legal Practitioners Bill which aims to introduce measures that will protect Malawians who seek legal services from private practitioners, Tembenu said  cases of embezzlement of client’s funds have been on the rise to the detriment of the profession and many lawyers who work so hard and honestly as well.

The Bill if passed, will create a Fidelity Fund whose money will be used to compensate victims of embezzlement by the lawyers.

Justice Minister said  tackling some of these challenges requires converted efforts that recognise the demand and supply side of the problems and also designing a system that prevents, rather than simply punishes the mischief.

“It also requires us to go back to law schools and check how the systems churn out lawyers that practice the profession of the law in Malawi,” said Tembenu.

The Justice Minister said the Bill recognises the composition of the Council for Legal Education which will be headed by the Attorney General as head of the bar. Answerable to that council is Malawi Institute of Legal Education which will be responsible for training those lawyers that want to practice the law.

“The institute will offer its courses at post graduate level. Entrance to the institute shall be those persons who hold law degrees from accredited institutions in Malawi or persons who hold acceptable foreign legal qualifications,” Tembenu said.

He said the role  of the instituteis it to ensure that, notwithstanding the diversity in the sources of law degrees, legal practitioners in Malawi  courts have a relatively common ground when it comes to practicing the professional of the law in this country.

Tembenu said  the criteria of admitting lawyers to practice has been revised.

“The proposed system is more flexible as it allows citizens and permanent residents, but robust where holders of law degrees from institution accredited to offer legal profession in Malawi, holders of accepted foreign qualification, people practicing in other jurisdictions especially Southern Africa and applicants for an appearance; those who come to Malawi to just appear in special individual cases,” he said.

He said the bill also provides for sufficient safeguards in the manner of regulating the legal practice itself. “For instance, the bill places the restrictions on how a law practice can be opened and managed. The Malawi Law Society has been given special powers to monitor such matters,” he said.

Tembenu said  new conditions have been proposed for a legal practitioner to renew his or her licence. “These include the requirement to participate in continuing professional development and also participating in the provision of Pro bono legal services [ Pro bono is a system where lawyers will be required to at least do some community work at no fee at all in terms of provision of legal services],” said Tembenu.

Salima South West MP Jessie Kabwila (MCP) applauded the provision that would make it mandatory for lawyers to provide pro-bono (without a fee) services which she said would benefit vulnerable people who cannot afford private legal services.

“It is a very welcome and important Bill as the provision on pro-bono services will give an opportunity to rural and poor women to access legal services without the exorbitant charges,” she said.

However, Kabwila said there was a need for the Legal Affairs Committee to scrutinise certain aspects of the Bill such as the linkage between the Band Malawi Law Society.

Legal Affairs Committee of Parliament chairperson Maxwell Thyolera,  lauded the Bill  for taking consideration the admission of  lawyers , saying those who trained elsewhere go through a rigorous process for them to qualify for admission to practice law in Malawi.

“This is what has generally resulted in rather small numbers of lawyers who currently practice in Malawi.  We have slightly over 400 lawyers against a population of over 17 million people,” he observed.

He said where higher education has been liberalised, it does not make much sense for any single university to have such a privileged position as the University of Malawi’s Chancellor College has.

“Opening up of legal training was therefore somewhat, inevitable,” he said but cautioned  that the goal of opening up the training of lawyers in Malawi should not compromise the standards of this profession.

Nkhata Bay Central MP Ralph Mhone (Peoples Part -PP), a lawyer, said University of Malawi was okay at that time because they were the only university in the country.

“But as of now, we are having a number of universities. Some of these universities, including the University of Malawi itself, which is being unbundled, as the President has already appointed a Commission to that effect, you will find that they will also be interested to be offering legal courses,” said Mhone.

He said  in order to level that playing field, it will be very important that the bill should let other universities that wish to delve into providing the services of training the people who want to join the legal profession, can also do that, “without leaving just one institution to give our children those kinds of courses.”

Said Mhone: “We have a backlog in terms of people needed to run our legal profession as well as the Judiciary.  So, if we expand, then it will be important that a level playing field is also created through this particular legislation.”

The Bill seeks to create the Malawi Council for Legal Education which would be mandated to accredit tertiary institutions wishing to offer law degrees but it would be compulsory for all graduates to undergo a one-year postgraduate practical legal training.

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