<< Programmes - Democratic Governance

A legal system that supports basic human rights:

Promoting Access to Justice

Location:
Lilongwe, Malawi (Ministry of Justice) as well as throughout the country
Period:
2008 - 2011
Corporate Thematic Area:
Democratic Governance, with particular focus on human rights.
2007 Budget:
US$ 500,000
Implementing Partners:
Ministry of Justice; Ministry of Home Affairs; Malawi Prison Service; Judiciary, Courts;
Development Partners:
DFID
Contact:
Elisabeth Lyfors
Programme Analyst
P.O. Box 30135
Lilongwe 3, Malawi
Office: +265 (0) 1 773 500, Ext. 236
elisabeth.lyfors@undp.org

Lawyers in Malawi = 300
Population in Malawi = 13,200,000
Only a fraction of the 300 lawyers are practicing law

Malawi’s constitution enshrines separation of powers, the independence of constitutional bodies and the rule of law. Its human rights charter asserts the rights to equality, liberty and development. For a young democracy, Malawi’s policy framework is strong. However, the realities for many Malawians in accessing their rights can be very different. Constitutional bodies in practice often lack both capacity and independence. Also, many Malawians are not fully aware of their rights, are unsure how to protect them, and do not have access to the appropriate systems. Cost and distance to services, for example, form a substantial barrier between most Malawians and the formal legal system.

Access to justice is critical for addressing widespread problems of domestic violence, economic and social exploitation, sexual violence, property grabbing and child neglect. Vulnerable groups include casual labourers, child labourers, tenant farmers, the urban poor and female headed households. Women in particular are less empowered to access their rights—most live below the poverty line and in rural areas, are illiterate, and have low status in the household and outside. While in principle the Constitution grants equal rights to men and women, regardless of social status, these rights are simply not respected, practically.

In response to the Government of Malawi’s call for a more responsive and effective judicial system, UNDP has been supporting the Malawi Centre for Advice, Research, and Education Rights (CARER) during 2007 and aims to scale up its role towards more comprehensive support for the justice system under an Access to Justice programme from 2008. The CARER project is a first step to supporting Access to Justice. The project is in line with UNDP Malawi objectives as it targets both Human Rights and Capacity Building, two of the four crosscutting themes in its programmatic plan.

CARER is a Malawian NGO founded and run by human rights advocate Vera Chirwa. It responds to the serious failures of the formal justice system through working to improve access to informal justice. CARER trains and manages a network of paralegals to handle cases through mediation and alternative dispute resolution independent of the formal sector. By increasing the number of trained Community Based Volunteers at a local level in rural places, people have some option for advice and mediation when they come into contact with the law.

UNDP has provided funding for CARER, in a project titled the Community Based Paralegal Project. The aim is to engage seven paralegal officers to work in six districts while training paralegal extension workers (Community Based Volunteers) in the villages. The 7 paralegals have each mediated disputes, trained and supported 180 community-based volunteers and 150 traditional leaders at the village level. The training includes laws on basic human rights, property, gender and domestic violence.

Stealing a Chicken: Access to Justice
From the moment that a person comes into conflict with the law they enter the justice system and are entitled to fair and proper treatment in view of the law. Justice can be viewed as a process with several crucial phases—i.e. the police, the judiciary and prison. Fair treatment, according to minimum human rights standards, must be present at all different stages of this process. If a 17 year old boy is arrested for stealing a chicken, he must be charged and given a fair trial and, if he is found guilty, be punished within the bounds of the law. In Malawi, given the serious shortcomings of the relevant sectors, he may never be charged of the crime for which he is accused, held on remand for some years while his paperwork may be mislaid, and in the process, with the overcrowded and under-funded prisons, he might starve or fall ill. This shocking story is not an uncommon one and amounts to a gross violation of human rights.

The volunteers that receive training have all asked to be involved. Post training, volunteers only need advice and coaching—not additional funds. In addition, these volunteers in many cases become advisors to chiefs and other traditional authorities. This signals that the training has responded to an unmet need in Malawi. Gender was explicitly included in project design. At least 30 percent of paralegals and volunteers and at least 50 percent of beneficiaries had to be women.

From February to June 2007 CARER provided advice and mediation on 627 cases in four of its offices through the community based paralegal project. Many cases were on tort, contracts, child maintenance, inheritance, domestic violence and labour.

CARER paralegals offer informal advice and mediation

Levison Butao and others vs. Kheramo Contractors

Levison Butao and 72 others entered a six month contract with Kheramo Contractors. After completing the contract, only one month of pay was given. They took the matter to the Mangochi office of Malawi CARER. The paralegal officer brought both parties together and the managing director of Kheramo Contractors admitted liability and paid in full.

Lilian Phiri vs. Amon Kamanga

Lilian Phiri’s husband was involved in a car accident and left his car to be repaired at his friend, Amon Kamanga’s, garage. While the car was there, Mr. Phiri passed away. When Mrs. Phiri went to collect the car 10 months later, Mr. Kamanga had sold the vehicle. Mrs. Phiri lodged a complaint at CARER’s Kasungu office. The paralegal officer summoned Mr. Kamanga, who admitted to selling the vehicle for MK350,000. After mediation Mr. Kamanga returned the full sum to Mrs. Phiri the same day.

The community based paralegal project has empowered a number of vulnerable people to understand and be able to claim their rights. The paralegals and village level extension workers have the tools and skills to provide greater access to justice for poor Malawians. Building on its experience with CARER, UNDP plans to implement a large scale project to build the capacity of the entire justice sector. The planned project on Access to Justice will take a common approach to donor support and will establish a Governance Development Unit in the Ministry of Justice to manage and coordinate donor support to adopt the programme based approach. This broader programme would cover all aspects of procedural justice, both formal and informal, and UNDP would work towards creating a common pool to ensure every individual who comes into conflict with the law is treated fairly and equitably until their dispute is resolved. Access to justice can be dramatically improved if the justice sector is developed as a single cohesive unit through a programme based approach which will coordinate assistance based on the desired impact rather than assisting individual institutions in a sector. It would also provide opportunities for ongoing funding for organizations such as CARER.