HOW TO SERVE LEGAL PAPERS IN MALAWI

The Republic of Malawi is a landlocked nation located in Southeastern Africa. The country was originally known as Nyasaland. Lilongwe is the capital of Malawi and the country’s biggest metropolis. Blantyre is the second-largest city, Mzuzu is the third-largest, and Zomba, the former capital, is the fourth-largest. 

Malawi derives its name from the Maravi, a pre-colonial term for the local Chewa population. 

BACKGROUND

Malawi has a pro-Western foreign policy. It has good diplomatic connections with the majority of nations and is a member of several international organizations, such as the United Nations, Commonwealth of Nations, Southern African Development Community (SADC), Common Market for Eastern and Southern Africa (COMESA), and the African Union (AU).

One of the world’s poorest nations, Malawi, is located in southern Africa. Agricultural production is the primary source of income and the population is mostly rural and expanding at a fast rate. There has been a significant decline in both the quantity of help required and the amount of aid donated to Malawi since 2000. 

President Lazarus Chakwera leads Malawi as a unitary presidential republic. On May 18th, 1995, the present constitution came into effect. The executive, legislative, and judicial departments of government all work together. With a President who serves as both head of state and government and two Vice-Presidents in the Cabinet, Malawi has a strong executive. Every five years, the President and Vice President are chosen. If the President so desires, they may select a second Vice President, who must be from a different political party. The President of Malawi appoints the members of the Cabinet, who may come from inside or outside the legislature. 

According to the Malawian constitution, there should be a senate of eighty seats. If the Senate were to be established, it would serve as a forum for traditional leaders, as well as a range of geographic districts, as well as special interest groups such as the handicapped, young, and women. The Democratic Progressive Party (DPP) is the primary opposition party, while the Malawi Congress Party (MCP) leads the Tonse Alliance, which includes many smaller parties. 

LEGAL SYSTEM OF MALAWI

High Courts, Magistrates Courts, and Child Justice Courts comprise the autonomous judicial branch, which is based on the English model and contains the Supreme Court of Appeal, a High Court split into three parts, and Industrial Relations Court, and Magistrates Courts.

Several changes to the legal system have occurred since Malawi’s independence in 1964. There have been varying degrees of success and corruption in the usage of conventional courts and traditional courts, depending on the particular combination so used. 

A total of twenty-eight districts and around two hundred and fifty traditional authorities and a hundred and ten administrative wards make up Malawi’s three regions (the Northern, Central, and Southern regions). Regional administrators and district commissioners are appointed by the central government to run local government. 

Despite the fact that Malawi has a dual legal system, both courts follow the same statutes. The several grades of Magistrates’ Courts, the High Judicial, and the Supreme Court of Appeal is part of one of these court systems based on the English model. As a result of the British Central Africa Order in Council’s Article 15, these courts administer the law as it has evolved and changed since its inception in 1902. The principles of the common law (as opposed to the civil or any other system of law), the Malawian statutes, and the concepts of equity are the primary components of these laws. In many ways, the English judicial system’s structure, processes, evidence standards, and practice are quite similar to those of these courts, however, there are a few changes due to local circumstances. There is no limit to the scope of these courts’ jurisdiction, however, the Magistrates’ Courts have a restriction on the number of claims that may be heard and the harshness of punishments that can be issued in civil and criminal cases. 

The Traditional Courts make up the other branch of the legal system. Originally established in 1903 as Native Courts under British colonial rule, they were renamed Local Courts upon independence in 1947. In 1969, they were renamed to their current name. There are five levels of Traditional Courts: Grades A, B, District, Urban, and Grade AI. In a nutshell, the appeals process is as follows: Grades A and B Traditional Court appeals proceed to the District Traditional Appeal Court of the District, while Grade Al and Urban Traditional Court appeals go straight to the National Traditional Appeal Court. 

Only criminal cases may be heard by the Regional Traditional Courts, which are courts of the first instance. Each of the country’s three geographic areas has its own court of this kind. The National Traditional Appeal Court, the system’s last court of jurisdiction for civil and criminal cases, hears appeals from these courts. As a result, the two judicial systems are no longer compatible. The Traditional Courts have authority over both criminal and civil proceedings, except for the Regional Traditional Courts, which have criminal jurisdiction alone.

HOW TO SERVE LEGAL PAPERS ON MALAWI

Since it takes so long to assure proper service under the Hague Service Convention, Malawi process service often takes between three and six months. If service is disputed or a decision has to be enforced, failing to complete all the appropriate measures will result in service being dismissed.

The Hague Convention’s general process service begins when the letter of request is prepared with the proper paperwork and delivered to the appropriate country’s central authority for approval. The papers are checked by the central authority to verify that they are complete and accurate. Afterward, they are sent to the local court that has authority over the accused person.

The service is subsequently sent out to a person by the local court, who serves the document. Once service has been completed, the local court notifies the central authority by submitting official documents. Then, the documentation is completed in line with the Hague Convention, the central authority verifies service was accomplished.

The paperwork is sent back to the person who sought the service from the central authority. In the Hague Service Convention, governments may pick and choose whatever provisions of the Convention they adhere to, hence there are numerous subtleties. Considering that signatories have the option to object to specific articles, it’s crucial to understand both the overall procedure and the criteria of each signatory. Letters Rogatory is the sole way for nations that have not joined the Convention to serve papers. Diplomatic channels sometimes take more than a year for these petitions from one country’s courts to another country’s judiciary. Using this kind of service not only adds time to the process but also comes at a substantially greater price.

HOW TO SERVE LEGAL PAPERS by THE CENTRAL AUTHORITY in malawi

If the paperwork is filled out improperly or are lacking information, it might take up to four months for the service to be performed. A nation may be served using this method only if it has signed the Hague Convention. The Hague Convention is a more cost-effective and faster method of service than Letters Rogatory, and we always strive to execute service as quickly as feasible.

An option for the Malawi Process Service without using diplomatic or consular channels was created in 1965 by the Hague Convention. This expedites the procedure (which typically takes three to six months to complete), which is always a good thing. 

When a court document is served on a party residing in one of the seventy-nine countries that have signed the Hague Convention on the Service Abroad of Judiciary and Extrajudicial Documents in Civil or Commercial Matters, the process is the same. An overview of the Hague Service Convention’s functioning is provided in this article, as well as an examination of the impact of the COVID-19 epidemic on service as provided for under the Convention.

A judicial or extrajudicial document for service outside of the country is covered by the Convention in all civil cases where ‘there is reason to transmit’ it, as defined by the requesting member state. According to the Convention, a member state’s ‘Central Authority’ determines whether service on the party to be served is permitted under its domestic law and, if so, serves the papers and provides a certificate of service to the party to be served once they have been received. Additionally, a member state may agree to alternate modalities of service, such as service through postal channels directly to the party to be serviced by the Central Authority.

To serve a document in accordance with the Convention, the address of the person to be served must be known and the document must pertain to a civil or commercial issue, as defined by the Convention (Art. 1). When the Convention’s conditions are satisfied, the Convention-approved transmission channels must be used. It is vital to keep in mind that the legislation of the forum will decide whether or not transmission to another Contracting Party is required.

The service of a document must be carried out by a competent official in accordance with local legislation of the requesting Contracting Party (Art. 5). This does not apply if the applicant (the requesting party’s sending authority) asks for a specific technique or process to be adopted, provided that it does not conflict with the legislation of their chosen Contracting Party.

Last but not least, the authority responsible for carrying out the request must complete the certificate attached to the Convention, noting whether or not service was provided and, if not, providing an explanation (Art. 6)

how to serve legal papers by ALTERNATE MEANS in malawi

Criminal defendants or their defense counsel seeking judicial assistance in obtaining evidence or in effecting service of documents abroad in connection with criminal matters may do so via the letters rogatory process.

Foreign attorneys are not permitted to take depositions of willing witnesses without the involvement of the local courts. Instead, the court in Malawi must receive a letter of request from a court in another jurisdiction for the taking of evidence in Malawi, after which the court will take the deposition and send the record to the court in the other jurisdiction transmitted via the letters rogatory process.

Malawi allows consular officers to conduct depositions of willing witnesses. Ordinarily, upon a letter of request from the court in another jurisdiction being received by a court in Malawi, the court will take it upon itself to ensure that the deposition from a witness (willing or unwilling) is taken.  Art. 8 and 9 of the Convention allow for diplomatic or consular channels, as well as postal and direct communication between judicial officers, officials, or other competent persons. Art. 10(a) allows for direct communication between an interested party and a judicial officer, official, or other competent people.

Transmission using a different channel does not result in worse quality service. They may object to the use of other channels by a Contracting Party (Art. 10)

It is a major issue when a request for service from a foreign country is turned down. The refusal must be well justified, and the applicant must be given time to make up for their misdeeds. Mistakes made during the preparation of these papers do not invalidate them, and the applicant is free to correct the content after receiving an explanation.

In accordance with Hague Convention provisions, a state addressed may not reject service unless it considers compliance with the request to be infringing on its sovereignty or security. There is no guidance on what to do if an individual’s address is unknown, and the Convention states that it does not fall within its jurisdiction. As a result, publishing is still encouraged and will not be subject to Article 4 on its own. Federal or state law applies in cases where the Convention does not.

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Sources

1. However, despite a high rate of unemployment, the Malawian government confronts difficulties in its attempts to boost the country’s economy, enhance public services, and safeguard the environment. These concerns have been addressed in various ways in Malawi since 2005, and the country’s future looks to be brightening. In 2007, and 2008, the economy, education, and healthcare all showed signs of improvement.

2. During the first multi-party period, municipal elections were held on November 21, 2000, and the UDF party won 70 percent of the seats. The administration canceled the May 2005 intended second round of legally required municipal elections.

3. As long as an individual is a lawyer, they are entitled to represent any side.

4. Section 34 of the Traditional Courts Act was amended in 1970, causing this split. 8 Prior to the passage of this modification, appeals from District Traditional Appeal Courts or Urban Traditional Courts proceeded to the High Court, and from there to the Supreme Court of Appeal.’

5. U.S. Embassy Lilongwe 

Area 40, City Center 

16 Jomo Kenyatta Road

Lilongwe 3, Malawi 

Mailing Address: PO Box 30016 

Lilongwe 3, Malawi

Local Mailing Address: 

PO Box 30016, Lilongwe 3, Malawi 

Telephone: +(265) 1-773-166, 1-773-342 and 1-773-367 (Dial ‘0’ before the ‘1’ within Malawi) 

Emergency After-Hours Telephone: +(265) (0)882-960-178 or +265 (0)88 198 0814 

Fax: +(265) 1-774-471 (Dial ‘0’ before the ‘1’ within Malawi) 

Email: LilongweConsular@state.gov

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