The Malawi Law Society (MLS) – an umbrella organization of all lawyers in Malawi – has said it considers the award of K255 684 112.00 to Women Lawyers Association (WLA) as bill of costs they incurred in the course of their representing Nsundwe rape victims when, in fact, it is on record that they were representing their clients pro bono—free of charge, as “unusual and unjustified” in a normal Judicial Review case that ended at High Court level.
On Friday, August 6, 2021, Chisomo Mandala, assistant registrar, signed an order that the women lawyers be awarded the amount and Nyasa Times published on Saturday that the 18 victims in total got K90 million with each carting K5 million while the pro bono lawyers, instead, were awarded over K255 million.
Before Malawi Human Rights Commission (MHRC) issued a statement calling upon the Women Lawyers “to provide the general public with adequate information that would enable them to understand what entails pro bono services,” WLA president Immaculate Maluza had issued a press statement in defence of their being awarded which social commentators described as “unimpressive” and “an obscene jackpot.”
And MLS agreed in a statement issued on Sunday, August 8, 2021 and signed by Patrick Gray Mpaka, Chairman, and Chrispin Chimwemwe Ngunde, Honorary Secretary that the award appeared contrary to the 13 basic principles for assessing costs as outlined in Order 31 rule 5 of the Courts (High Court) (Civil Procedure) Rules which is the major legal guideline for assessing costs of proceedings in the High Court.
“From a reading of the Ruling of the Court dated 6th August, 2021, those 13 principles do not seem to have exercised the mind of the Court nor were they brought to the attention of the Court. Only three issues concerning the number of lawyers, the question of care and conduct and the question of instruction fees as listed on page two of the Ruling appear to have been raised for consideration,” reads the press statement in part.
The Society, nevertheless, said the general public needed to be advised accordingly and understand that pro bono legal services were a form of public service which allowed deserving members of the public access to legal services at no cost to those deserving members of the public.
The statement added that Courts retained the power to order costs against holding public office even in a matter where a litigant was represented on a pro bono basis.
“Such orders serve a useful purpose to vindicate the law and to encourage public institutions or public officers to abide by the law in their exercise of powers of the State. In appropriate cases, it is necessary in the public interest and in the promotion of the rule of law that Courts issue costs orders against errant public officials,” the statement reads.
According to MLS, it observed that in the case at hand and under the law, the State had 21 days from August 6, 2021 to seek review of the K255 684 112.00 order. It also observed that the taxpayers money would not ordinarily be disbursed before the expiry of 14 days from August 6, 2021. It said there should therefore be no public anxiety if the State is willing to challenge the award of K255 684 112.00 under the due process of the Court.
“Malawi Law Society recommends that Respondents take out review proceedings against the award in line with Order 31 rule 17 of the Courts (High Court) (Civil Procedure) Rules. The Respondents may raise the many outstanding questions on costs for pro bono services for adequately protecting the Public funds involved,” MLS recommends.