CHAPTER 4:01
LEGAL AID

ARRANGEMENT OF SECTIONS

SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
LEGAL AID BUREAU

   3.   Establishment of the Legal Aid Bureau

   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 Director

   8.   Qualifications of Director and Deputy Director

   9.   Appointment of the Director and Deputy Director

   10.   Term of office of Director and Deputy Director

   11.   Removal from office

   12.   Other employees of the Bureau

   13.   Delegation of powers

   14.   Criteria for recruiting Legal Aid Assistants

   15.   Terms and conditions of service

PART IV
PROVISION OF LEGAL AID

   16.   Extent of legal aid

   17.   Legal aid in criminal matters

   18.   Eligibility for legal aid in criminal matters

   19.   Legal aid in civil matters

   20.   Eligibility for legal aid in civil matters

   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

   33.   Audits

   34.   Confidentiality with regard to audit

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 Assistants

PART VII
FINANCIAL PROVISIONS

   38.   Funding of the Bureau

   39.   Legal Aid Fund

   40.   Deductions from awards

   41.   Costs awarded to legally aided persons

   42.   Costs not to be awarded against legally aided persons

   43.   Payments into the funds

   44.   Accounting and audit

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

   48.   Regulations

   49.   Repeals and savings

   50.   Transitional

      First Schedule

      Second Schedule

7 of 2011
G.N. 5/2013

An Act to make provision for the granting of legal aid in civil and criminal matters to persons whose means are insufficient to enable them to engage private legal practitioners and to other categories of persons where the interests of justice so require; to provide for the establishment of a Legal Aid Bureau; to provide for the establishment of a Legal Aid Fund; to allow for limited eligibility of other persons, besides legal practitioners, to provide legal aid for the purposes of this Act and to provide for matters connected therewith or incidental thereto">

[1ST MAY, 2013]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Legal Aid Act.

2.   Interpretation

   In 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;

   "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 Bureau

   There 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

   (1) The duties and functions of the Bureau shall be to—

   (a)   provide legal aid in accordance with this Act;

   (b)   determine—

      (i)   the persons or classes of persons in respect of whom legal aid may be granted; and

      (ii)   the matters or classes of matters in respect of which legal aid may be granted;

   (c)   determine priorities in the provision of legal aid as between—

      (i)   different persons or different classes of persons; and

      (ii)   different matters or different classes of matters;

   (d)   specify the guidelines to be applied in determining eligibility for legal aid;

   (e)   specify the circumstances in which contributions towards legal aid shall be paid by legally aided persons and the way of calculating such contributions;

   (f)   establish and manage offices of the Bureau in such places as it considers appropriate;

   (g)   liaise and cooperate with civil society organizations or any other persons or bodies engaged or interested in the provision of legal aid;

   (h)   compile and publish information in respect of the functions of the Bureau and in respect of other schemes of legal aid provided in Malawi;

   (i)   undertake research into all aspects of legal aid including investigation and assessment of different methods of financing and providing legal aid;

   (j)   prepare reports and make recommendations to the Minister on such matters relating to the functions of the Bureau as the Bureau considers appropriate or as the Minister may reasonably request;

   (k)   exercise such other functions and duties as are conferred on the Bureau by or under this Act or any other written law.

5.   Powers of the Bureau

   (1) The Bureau shall have the power to do such things as it considers necessary or desirable to secure the provision of legal aid under this Act or are calculated to facilitate or are incidental or conducive to the discharge of its functions.

   (2) Without prejudice to the generality of its powers under subsection (1), the Bureau shall have power to—

   (a)   grant legal aid in accordance with this Act with or without conditions or vary, withdraw or revoke such grant;

   (b)   contract out legal aid work to legal practitioners in private practice on such terms and conditions as the Bureau may consider fit and appropriate;

   (c)   enter into cooperation agreements with civil society organizations or any other persons or bodies engaged or interested in the provision of legal aid;

   (d)   undertake any inquiry or investigation which the Bureau considers expedient in relation to the discharge of its duties and functions;

   (e)   receive donations of funds, materials and technical assistance in furtherance of its work;

   (f)   request and obtain the assistance of any public institution, Government Department, and other classes of institutions or bodies as may be necessary for carrying out the functions and duties under this Act;

   (g)   charge and collect fees in respect of programmes, publications, seminars, documents, and other services provided by the Bureau;

   (h)   disseminate or assist in the dissemination of information relating to the duties and functions of the Bureau;

   (i)   to develop pro bono programmes in conjunction with the Malawi Law Society; and

   (j)   do or perform all such acts or things as may be necessary or expedient for the discharge or exercise of its duties, functions and powers.

6.   Independence of the Bureau

   (1) The Bureau shall exercise its powers and perform its duties and functions independent of the interference or direction of any person or authority.

   (2) All organs of the Government shall accord the Bureau such assistance as may be reasonably required for the exercise of its powers and performance of its duties and functions and for the protection of the independence and impartiality of the Bureau.

PART III
STAFF OF THE BUREAU

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