How Malawi Put Access to Justice on the UN’s Agenda

The UN Commission on Crime Prevention and Criminal Justice last month adopted new UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems—a set of principles designed to ensure that access to legal information, advice and assistance is available to all through the provision of legal aid. The agreement seeks to realize rights for the poor and marginalized, and it entrenches legal aid as one of the key building blocks of a fair, humane and efficient criminal justice system. It also stresses the important role in ensuring access to justice that can be played by paralegals—community members who have basic legal training, but who are not qualified lawyers.

The groundwork for this started eight years ago in Lilongwe, Malawi where an innovative partnership aimed at expanding the use of paralegals in the justice system was being tested by the Paralegal Advisory Service; an initiative of a number of Malawian NGOs in collaboration with the international NGO Penal Reform International and the Malawi Prison Service.

Clifford Msiska, the head of the Paralegal Advisory Service Institute (PASI), talked to us about why the work done in Malawi was so important:

In 2000 we were faced with a dire scenario in Malawi. Crowding levels in our prisons were in excess of 180%. More than half – around 60% – of all prisoners were pretrial detainees who languished for long periods in detention before they got their day in court. Virtually none had access to any form of legal assistance. Then, as today, Malawi had only a few hundred lawyers for a population of some 14 million people.

In 2000, we established the Paralegal Advisory Service (as it was then called) with eight paralegals working with pretrial detainees in four prisons. Today, we have close to 30 paralegals serving just over half of Malawi’s pretrial detainee population, and we have plans to expand our operations significantly over the coming five years.

Our paralegals provide ‘first’ legal aid to arrestees and pretrial detainees at police stations, courts and prisons. This can be anything from informing them about the law and court procedures, to advice and assistance with legal problems. PASI also promotes a fairer and more efficient criminal justice system by improving communication, coordination and cooperation – the three “C’s” – among the various criminal justice actors.

After a few years we were able to demonstrate clear results. The number of pretrial detainees as a proportion of all prisoners declined from 60 percent to around 20 percent – and has remained at this lower level for the last few years.

There has been increasing interest in our work, and we helped establish similar paralegal programmes in Benin, Kenya, Uganda, Sierra Leone, Liberia, Bangladesh and South Sudan.

We documented our best practices, got inputs from recognized access to justice specialists and put in place a set of standards. In 2004 we organized a conference in Lilongwe and with inputs from a high-level drafting committee, including heads of national legal aid boards, lawyers, academics and civil society representatives, adopted the ‘Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa’ at the end of the conference.

What has happened since Lilongwe?

In 2006 the Lilongwe Declaration was endorsed by the African Commission on Human and Peoples’ Rights (ACHPR). The UN’s ECOSOC then recognized the Lilongwe Declaration and mandated the UN Organisation for Drugs and Crime (UNDOC) to develop a global set of guiding principles. It’s rewarding to see that from our discussions in Lilongwe in 2004 came this recognition at the global level.

There have also been key developments on the ground. For example, in Uganda reformers built their own model combining paralegals, social workers and the prison service. In Sierra Leone “Timap for Justice” is testing a model of early access with paralegals stationed at police stations (watch our special video report) and just last week parliament there adopted a progressive law on legal aid that officially recognizes the role of paralegals in both the civil and criminal justice systems. In Bangladesh, a paralegal programme operating in three prisons resulted in the release of almost 2,000 pretrial detainees over the last four years.

We have seen a burst of activity around legal aid over recent weeks. On the same day that the UN guidelines were adopted,  the European Union adopted a Directive on Access to Information in Criminal Proceedings, and then the Sierra Leone government adopted a law on legal aid. What do you see as the main tasks ahead?

There is a need to formalize and institutionalize the roles and functions of paralegals. Criminal justice systems must develop policies which recognize the role paralegals are playing, and formalize paralegals’ interactions with arrestees and accused persons at police stations, courts and prisons. Relatedly, trainings for paralegals need to be professionalized.

Mediation, as practiced by the Village Mediation Project in Malawi, for example, can also play a vital role in promoting pretrial justice by dealing with minor criminal matters and reconciling offenders and victims. This reduces the burden on the formal system and significantly lowers the number of arrestees and pretrial detainees. Where matters cannot be dealt with through community mediation and suspects are arrested, paralegals play a crucial role in providing practical legal assistance to the indigent.

I am keen to see these developments expanded and sustained: for governments to enact legislation, drawing inspiration from the new UN Guidelines and, in Africa, the Lilongwe Declaration. Then it’s important for systems to be set up and adequately resourced both in terms of staff and financial resources and for the positive partnerships between government and civil society to be supported.