THOMAS JEZREEL HARAWA KHULULU’S ASSIGNMENT – CATHOLIC

UNIVERSITY OF MALAWI- CLE

Introduction

Legal practice in Malawi is regulated by the Legal Education and Legal Practitioners Act
(hereinafter referred to as LELPA) being the principal legislation regulating the profession. The
LELPA establishes the Malawi Law Society (hereinafter MLS) under section 63 and the Council
of Legal Education (hereinafter referred to as the Council) under section 3. Section 2 of LELPA
defines a legal practitioner.1 As some scholar has put it, ‘regulation of legal profession is justified
on three grounds viz; asymmetry of information between the legal consumers and legal
practitioners require that lawyers display a high level of technical knowledge, the principle of
externalities which take into account the impact of the legal services on third parties and that the
legal profession is deemed to provide services for the public good.’2 Section 116 of the 1994
Republican Constitution establishes the Judicial Service Commission responsible for regulation of
judicial officers. All in all, regulatory bodies and organs of the legal profession are statutorily
established and are responsible for the regulating activities of legal practitioners and judicial
officers in Malawi.

Council of Legal Education

Firstly, the Council is primarily responsible for the education of such persons aspiring to be legal
practitioners in Malawi. In other words, regulatory powers of the Council are targeted on candidate
legal practitioners. Objects and functions of the Council are provided for under section 4 of
LELPA. Wegner (2010) describes legal education as ‘reflects lawyer’s roles within a given society,
student’s prior preparation, and regulatory systems governing accreditation and licensure.’ 3 This
type of education involves training candidate legal practitioners in the practices, principles and
theory of law.

In addition to, with the perusal of section 4 of LELPA 2017 above it is evident enough that the
Council sets minimum qualifications and training for candidate legal practitioners. Such

1
Legal practitioner means a person who has been admitted to practice the profession of the law before a court and
whose name has been inscribed on the Roll.
2
Kigwiru Vellah (2018) Is Technology Innovations Disrupting the Legal profession in Kenya?
3
Wegner J.W. (2010). International Encyclopedia of Education. 3 rd Ed.

1
requirements must be satisfied for one to be admitted and enrolled as a legal practitioner.
Consequently, the Council regulates legal education and training in Malawi. This is the mandate
of the Council. Such mandate of regulating can be seen in the statutory given functions under
section 4 of the LELPA. Such functions include; determining of syllabuses and curriculum to
ensure and maintaining appropriate standards in legal education and training, just to mention a
few. In such ways the Council is also regulating admission to the Bar while at the same time the
universities (where law programmes are offered for candidate legal practitioners to obtain their
law degrees) and Institute of Legal Education deal with the academic side of legal education.

Thus, it sets and enforces standards for legal education.

MALAWI LAW SOCIETY (‘MLS’)

The legal profession is governed by a regulatory framework comprising of statutory provisions

To begin with, MLS is responsible for overseeing the profession. See section 64(f) of LELPA. In
essence, professional discipline as far as legal practitioners are concerned is regulated primarily
by MLS. Consequently, Section 73 of LELPA mandates MLS to make various rules governing
professional conduct of lawyers. In response to such provision and its mandate(s), Section 90 of
LELPA also establishes the Disciplinary Committee (hereinafter the Committee). The Committee
is tasked with the responsibility of investigating or inquiring into the conduct of legal practitioners
whether at the instance of any member of the profession or the public at large; or by the High Court
on its own motion.4 In advancing the mandate of regulation, the Committee prosecutes legal
practitioners in relation to matters of professional conduct. In dealing with complaints made
against a legal practitioner, MLS through the Committee institutes proceedings against the legal
practitioners. These proceedings are sui generis proceedings. If the Committee finds the legal
practitioner guilty of professional misconduct or breach of the Code, it may admonish, fine or

4
See section 90 of the LELPA

2
suspend the legal practitioner or make any recommendations deemed fit to the Chief Justice. See
section 96 of LELPA.

Secondly, through the Code, MLS regulates and controls the affairs of the members of the
profession by providing a framework for an ethical practice of law. Regulation by MLS is seen in
a number of aspects such as discipline. The Code binds every legal practitioner. See Joyce Zione
Gomani & Ernest Muza v The Republic MSCA Civil Appeal No.5 of 2016. The Code regulates
professional conduct of legal practitioners in a number of ways. One such way is that it is designed
to guide legal practitioners and thereby providing a structure for regulating conduct through
disciplinary faculties. The rules are thus partly obligatory and disciplinary and they define a legal
practitioner’s role as a professional. Such regulation is evidently seen in duties which the Code
imposes on legal practitioners. Such duties are duties which the legal practitioners have to the
profession5 or justice system,6 to the client.7 In other words, these govern the conduct of legal
practitioners with regard to all aspects of legal practice, including dealings with clients, the court
and third parties.

Thirdly, issuance of an annual licence to legal practitioners under section 30 of LELPA is another
regulatory function of MLS. MLS prohibits anyone who is not a licenced legal practitioner from
providing legal services and even has powers to discipline anyone who contravenes this provision.
This issue of licence entails regulation in terms of qualification (MLS sets the qualifications for
practicing law in Malawi) like who is qualified to practice or not. Under the LELPA, MLS is
mandated to regulate who are licenced to practice law. Procedure is made for legal practitioners
for obtaining licences to practice. The LELPA in the same name of regulating this has introduced
pro bono work as the condition to the granting of licence for practice.8 The second requirement is
that payment of a practicing fee must be paid not later than date in every year specified under the
law. See section 30 of LELPA.

In addition to, section 39 of LELPA establishes the Remuneration Committee of the MLS
responsible for regulating the charges or remuneration of legal practitioners. Remuneration, in

5
Chapter 3 of Code of Ethics
6
Chapter 1 of Code of Ethics
7
Chapters 6,7 & 8 of Code of Ethics
8
Masumbu, James (2020). Legal Practice and Management in Malawi

3
simple terms and, in this sense means money paid by a client for work or a service to a legal
practitioner. Through this Remuneration Committee, MLS is able to regulate payment of
remuneration to all legal practitioners though everything which is concocted by the Remuneration
Committee is subject to Minister’s approval. Nonetheless, in essence such rules and
recommendations thereof entail MLS regulatory powers toward legal practitioners.

Lastly, MLS also regulates legal services advertising under the Code. See Rule 5 of the Code. This
has become controversial in today’s democratic society. Nonetheless, legal practitioners are not to
violate this legal advertising Rule or face sanctions. They could also face prosecutions for engaging
in false or misleading legal advertisement. This is regulating law practice.

All in all, MLS regulates legal practitioners through its statutory ordained powers by developing
and enforcing standards of professional competence and conduct.

Judicial Service Commission (hereinafter referred to as ‘JSC’)

Though established under section 116 of the Constitution and given powers to regulate judicial
officers under section 118 of the very Constitution, the exact scope has not yet fully been
unravelled (lacks scope which would have otherwise been provided for by an Act of Parliament if
it was there responding to the demands of the Constitution). There is a need for a JSC Act that can
help regulate judicial officers as it is subsisting in other jurisdictions. Advocating for law to address
this lack, Mpaka stressed that ‘such an Act would invariably regulate the composition and tenure
of office in the JSC, the appointment of judicial officers, remuneration and disciplining of judicial
officers and the applicable due processes given the need to maintain an independent judiciary
which remains regulated, funding the JSC, reporting, general administration and accountability of
the JSC itself.’9 Mkandawire (2022) has lamented that section 116 of the Constitution and section
5 of the Judicature Administration Act are very shallow and have failed to yield effective results.10

9
[Link]
10
Jonathan Mkandawire, Who judges the Judges?: A Balance of Judicial Independence and Accountability in
Malawi vis-à-vis Rule of Law (unpublished LLB thesis, Catholic University, 2022). He went further to recommend
that ‘Malawi should adopt models of the Judicial Service Commission Act 9 of 1994 of the Republic of South Africa,
Judicial Service Act No. 1 of 2011 of the Republic of Kenya, Judicial Service Act Chapter 7:18 of the Laws of
Zimbabwe, etc which provides for comprehensive provisions of Judicial Service Commission to make provision for
judicial services and administration of the Judiciary, the appointment of judges and establish a Judicial Code of

4
However, under section 5 of the Judicature Administration Act, the JSC as far as regulating judicial
officers is concerned is given the power(s) and this is still subject to those above-mentioned
sections 116 and 118 of the Constitution whereby it can adopt regulations. Black’s Law Dictionary
(2009) defines judicial officer as ‘a judge or magistrate including any officer of the court, such as
a bailiff or court reporter.’ In terms of section 111 of the Constitution, a judicial officer can be
defined as a holder of a judicial office.

On the other hand, the fact that JSC truly regulates judicial officers cannot be undermined or
disputed. Kapindu, commenting on the scope of section 116 of the Constitution, expresses that
‘regulation of judicial officers in their work includes both personal conduct as well as official
performance.’11 Judicial officers have for a long time been treated as clergy men who must behave
themselves before serving the public. This regulation pertains to recommending for appointment,
discipline, removal and control of judicial officers. The rationale behind regulation of judicial
officers is rooted in constitutional principles enshrined under section 12 of the Constitution. Such
principles are; fairness, transparency and accountability.

Judicial officers are appointed in their personal capacity based on their qualifications, career
profile, and experience.12 From the reading of the Constitution especially under section 118 (which
provides for disciplinary powers) and section 119 (which provides for removal procedure), it can
be concluded that judicial officers are subject to discipline. Discipline for judicial misconduct is
one aspect of regulating judicial officers. Investigating misconduct by a judicial officers too falls
under the ambit of JSC powers. JSC is mandated to have primary means by which ethical standards
and other conduct of judges by which they must be regulated.

CONCLUSION

MLS, JSC and the Council of Legal Education are all statutory bodies which are given powers to
regulate legal practitioners, judicial officers and candidate legal practitioners respectively.

Conduct for discipline and removal of judges and the discipline of other judicial officers and staff, among other
mechanisms to ensure judicial accountability in Malawi.’
11
Kapindu, Redson (2009) Malawi: Legal System and Research Resources. Accessed from
[Link]
12
Ibid, 5.

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Indeed, the regulation of legal profession by MLS is seen in a number of aspects such as issuance
of practicing licences, remuneration of legal practitioners, discipline and such other related
matters. Mainly this is done by MLS. It makes rules to regulate practice as a legal practitioner,
the relationship of legal practitioner with clients, other lawyers, court, and improper attraction of
business, remuneration and charging of fees.

The Council regulates legal education and training in Malawi by setting and enforcing the
standards.

JSC regulates judicial officers by setting ethical standards and judicial conduct rules a breach of
which puts the JSC in a position to investigate, discipline or remove judicial officers from office
for judicial misconduct.

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REFERENCES

Blacks Law Dictioanry 9th Ed. (2009)

Https://[Link]/mls-wants-law-to-regulate-judicial-officers

Jonathan Mkandawire, Who judges the Judges?: A Balance of Judicial Independence and
Accountability in Malawi vis-à-vis Rule of
Law (unpublished LLB thesis, Catholic
University, 2022)

Kapindu, Redson, Malawi: Legal System and Research Resources (2009). Accessed from
[Link]

Kigwiru Vellah, Is Technology Innovations Disrupting the Legal profession in Kenya? (2018)

Malawi Law Society Code of Ethics

Masumbu James, Legal Practice and Management in Malawi (2020)

Wegner J.W. International Encyclopedia of Education 3rd Ed (2010)