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Public Interest LitigationA brief guide for African communities and stakeholders

ACORD | Acknowledgements

First published in: 2015 by: ACORD

ACORD, the Agency for Cooperation and Research in Development

Email: [email protected]: www.acordinternational.org

ACORD © 2015. All rights reserved

ACORD gives permission for this work to be copied, distributed, transmitted or adapted on condition that attribution to ACORD as the originator, this is not to be used for commercial purposes and that any resulting adapted work is published with equivalent written permissions. Attributions should be given as “ACORD”. Further permissions can be requested by contacting: [email protected]

Author: Laura A. Young

Edited by: Aminata Ndiaye, Camila Gomez-perales, Chloe huynh

Design and Layout: Moses Muinde

ISSN: 1812-1276

A special thank to the Dutch Government for supporting ACORD’s work on Women and Girls’ rights in Africa through its FLOW Programme.¬¬

ACORD | Public Interest Litigation

ACORD © 2014. All rights reserved ISSN: 1812-127

ACORD gives permission for this work to be copied, distributed, transmitted or adapted on condition that attribution to ACORD as the originator, this is not to be used for commercial purposes and that any resulting adapted work is published with equivalent written permissions. Attributions should be given as “ACORD”. Further permissions can be requested by contacting: [email protected]

About ACORD

ACORD, the Agency for Co-operation and Research in Development, is a pan-African organisation working for social justice and development in Africa. For more than three decades, ACORD has been working in some of Africa’s poorest, most crisis prone and marginalised areas. ACORD has moved from

addressing the consequences of poverty and exclusion, to tackling the deeply rooted causes of inequality and marginalisation in Africa.

ACORD works in 18 African countries with programming, research and advocacy activities at community, national and regional level and a pan-African advocacy programme mirroring four

and the right to health. ACORD’s programmes are delivered together with a wide range of partners, drawing on the trusting relationships developed with communities, CSOs and local governments over the years as well as a deep understanding of the issues and grassroots perspectives on development.

ACORD believe people are the primary actors in their own survival and development. ACORD recognises that as agents of social change, women can and should have the space and power to make their own choices and that those choices need to be respected.

ACORD aims to build knowledge on positive gender relations and effective ways of addressing gender

economic and social empowerment; active citizenship and women’s participation at all levels; challenging gender-based violence; and mainstreaming gender at an institutional level.

ACORD’s work contributes to building an environment where institutions and communities respect women in spite of their class, age, race or creed which accords them their rights, dignity of their personhood and womanhood and creates space that recognises and allows women to be active participants in changing socio-economic and political conditions. We seek to work towards holding African governments and institutions accountable for protecting the rights of women provided for in the African Union Protocol for African Women’s Human Rights.

About ProRights

ProRights supports projects that promote social inclusion and civic participation, gender equity, effective land and natural resource governance. ProRights provides technical assistance to community groups, non-governmental partners as well as state actors. ProRights designs participatory training and capacity building

strategies that focus on claiming rights. ProRights is registered in Kenya and the United States.

Contents

Public Interest Litigation – An Overview.................................................................................................. 1

Understanding Legal systems...................................................................................................................... 3

Understanding the African human rights system................................................................................ 6

African Commission on Human and Peoples’ Rights........................................................................ 7

TOOL: NGO Observer status at the African Commission................................................................ 9

African Court........................................................................................................................................................ 10

ECOWAS Court.................................................................................................................................................... 10

EAC Court of Justice........................................................................................................................................ 11

Public interest litigation – Step by step................................................................................................... 11

Phase 1: Preparation........................................................................................................................................ 12

TOOL: Talking with Communities about public interest litigation............................................... 18

Phase 2: Litigation.............................................................................................................................................. 21

Phase 3: Managing the Outcome................................................................................................................ 25

TOOL: Questions to Consider before Starting Public Interest Litigation................................. 27

Appendix A. Further Reading....................................................................................................................... 28

Appendix B. Resource Organisations....................................................................................................... 29

Public Interest Litigation | ACORD


Glossary of Terms

Amicus curiae – friend of the court, used to refer to an organisation to which the court has given permission to provide information about a case

Attorney/lawyer individuals and groups in court, having an ethnical responsibility to their client

Civil case – a legal case between two private parties, or between a private party and the government that not does involve the possibility of imprisonment

Client – someone who hires a lawyer to take his or her case

Communication – special term for a human rights complaint brought to the African Commission on Human and Peoples’ Rights

Complainant – someone who brings a complaint before a court or human rights body

Complaint

Criminal case – a legal case brought by the state against a private party when a violation of the law has been committed that is so sever imprisonment of the perpetrator is the remedy ordered by law

Evidence – term for information presented to the court under special rules, which helps to prove or disprove a legal case

Expert witness – a person who has been recognized under rules of court has having special knowledge about a topic relevant to the legal case

Forum

Jurisdiction – refers to the scope of matters that can be addressed by a particular court

Litigant – an individual or group that is taking a civil case through the courts

Litigation – the process of taking a civil case through the courts to its conclusion

Prosecutor – an attorney who works for the government and is responsible for taking criminal cases to court

Protocol – an addition to an existing treaty, which can address new and related topics

Quasi-judicial – a body that operates in a manner similar to a court but does not have the binding power of a court

– the process through which a national legislative body agrees to be bound by the obligations of a treaty

Remedy – actions that a court can order to be done at the end of a legal case

Settlement

PUBLIC INTEREST LITIGATION – AN OVERVIEW

Public interest litigation1 is a term that is often used, but that is less often understood. The goal of this overview is to assist those who do not have legal training or who are unfamiliar with the practice of public interest litigation to understand the basic goals and strategies involved. This guide is not meant to substitute for legal advice; anyone considering engaging in litigation before the courts should consult an experienced attorney.

Public interest litigation emerged in the United States as part of the civil rights movement; litigation was part of a broad plan of social action. Today, public interest litigation is used across the globe; notable successes include cases focused on workplace sexual harassment in India and Bangladesh, housing rights and HIV treatment in South Africa, race discrimination and LBGT rights in the USA, anti-slavery in Niger, community land rights and torture compensation in Kenya

Public interest litigation is a powerful tool when deployed effectively and as part of a holistic program of advocacy for social change. Indeed, this is what makes public interest litigation different from any other legal case – public interest litigation should always be a part of a broader campaign to bring about social change on a particular issue.

Litigation simply refers to the process of taking legal cases through the court system. Public interest litigation is a legal case that has a broader social goal as part of its purpose. While most legal cases focus

that will impact the lives of many people through a single case.

In other words, these are legal cases that are brought not only in the interest of one person, but also in the public interest. As a result, most public interest litigation involves human rights violations that affect many people, such as discrimination, torture, gender-based violence, or concerns about freedom of speech or freedom of association.

Even if losing the case is the likely result, organisations may decide to engage in public interest litigation as part of a broader campaign on a human rights issue.

1 Public interest litigation is also sometimes referred to as strategic litigation or impact litigation.

What is public interest litigation?

• Public interest litigation uses the justice sector to achieve legal and social change through test cases.

• Public interest litigation seeks to have an impact beyond the actual outcome of the case.

• Unlike an average legal case, public interest litigation goals are broader than helping an individual client


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Public interest litigation can be used to:

• Change laws or policies that violate the constitution or international human rights norms,

• Address gaps between domestic legal standards and international human rights standards, and/or

• Ensure that laws are interpreted and enforced properly.


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Public interest litigation can be an important tool for any individual or group interested in social change and human rights protection. Public interest litigation often starts with on-the-ground human rights monitoring. Human rights monitoring helps to identify rights violations that may be most effectively addressed through legal action. Litigation in the public interest should be part of a holistic strategy to bring about social change. Most public interest cases are brought to the courts by a coalition of groups working together for a common social goal – this coalition might involve grassroots groups working with victims, a national group focused on a particular issue, and a legal organisation with experience in other public interest cases. However, a dedicated individual working with a single attorney brings some successful public interest cases to the courts. Public interest litigation has been used in many different countries to advance civil and political rights, women’s rights, the rights of indigenous people and other minorities, the rights of prisoners, the rights of children, housing rights, and many other human rights issues.

case. However, because public interest litigation is at the same time focused more broadly, there are many

● Win the desired result for the individual or group that brought the case● Set important precedent – establishing a legal principle or rule that will be binding on similar cases in the future● Create positive changes in the law● Begin a process of policy change● Empower clients, victims of violations● Raise public awareness● Spark public debate● Highlight the lack of judicial independence or fairness● voices on the issue

Public interest litigation cases are brought in many different settings, or legal forums. Some of these forums are judicial in nature, and have the binding authority of a court. Others are quasi-judicial in that they are

authority. In the African context, public interest litigation takes place in the following settings:

● National courts or administrative processes

●

●

●

Regional:

African Commission on Human and Peoples’ Rights

African Court of Human Rights

● Sub-regional


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East African Court of Justice

Economic Community of West African States (ECOWAS) Court of Justice

It is important to seek advice from legal experts on which setting would be the best for a particular public

cases can be brought to their attention.

Public interest litigation is more than a legal case – it is one tool in a larger strategy and involves assessing, for example:

●

●

●

Characteristics of the client(s)● the legal issues● media interest● partnerships with other groups● judicial history on this and similar issues● costs● timing

expensive, and lengthy process. The decision to engage in public interest litigation should always be a consultative one, taking into account the risks involved and the other options available to achieve the goal.

.noitasinagro lagel ro yenrotta decneirepxe na htiw pihsrentrap ni tuo deirrac eb dluohs noitagitil tseretni cilbuPAs part of a comprehensive strategy to protect human rights, public interest litigation can be one of the most important tools available for social change.

UNDERSTANDING LEGAL SYSTEMS

Before considering any legal action, whether a public interest case or not, it is important to understand the general structure of the legal system in the country where you work. Organisations, communities and individuals may already have a good understanding of how the legal system in their country operates.

from partnering with an organisation that is experienced in legal work or which has worked on legal cases previously.

All legal and judicial systems are organized differently, so it is critical that any group considering legal action obtain expert legal advice from an experienced attorney who is licensed to practice in the jurisdiction. In general, however, legal systems operate in a similar manner. For the purposes of this guide, by legal system, we mean the formal courts and judicial structures established by national law. In this guide, legal system does not include religious courts, customary courts or alternative dispute resolution mechanisms, although each of these may interact with the legal system in important ways.

systems and different countries.

These courts generally

the case to another court or may hear the case to a conclusion.

fer the option to appeal

interpreting the law.

The second level of courts is the court of appeal, which again is called by different names in different legal systems. These courts review cases that have already been decided by the lower courts, and determine whether any errors have been made that would have affected the outcome of the case.

If an error has been made that the court believes could have changed the decision of the lower court, the appeal courts may order the case to be re-heard or may issue a new decision in the case. Finally, for most

.

decision on complex cases where there has been disagreement in the lower courts or on cases that impact the interpretation of national laws and the constitution. Decisions of this court represent the ultimate conclusion of a legal matter, and parties must abide by the judgment without further option for appeal at the national level.

Supreme Court

Land andEnvironment Courts High Courts

MagistratesCourt

CourtsMartial

OtherSpecialised

tribunalsKhadis Courts


-

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Figure 1. Schematic of Kenyan Court System

Court of Appeal

Kadhi courts or Kadhi's courts are a court system in Kenya which enforce limited rights of inheritance, family, and succession for Muslims.

CONSEIL CONSTITUTIONNELRecours en inconstitutionnalite des lois /

competences electorales

JURIDICTIONS SUPREMES

COUR SUPREMEJuridiction de demier recours en matieres judiciaire (pourvois encassation) et administrative. Nee de la consolidation des anciens

conseil d’ Etat et cour de cassation

CONSEIL D’ETAT COUR DE CASSATION

COUR DES COMPTESpremier et demier degre dejuridiction. Audit general des

comptes de L’Etat

JURIDICTION S DE SECOND DEGRE

COUR D’APPEL COUR D’APPEL Cour d’appe; de Saint-Louis Cour d’ appel de Ziguinchor DE DAKAR DE KAOLACK

Juridictions de droit commun juridictions specialisees

Tribunal Tribunal regional Cours d’ assises Tribunal du travail Tribunal pour departemental enfants

JURIDICTION S DE PREMIER DEGRE


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In any legal case, the players involved generally are similar. A judge presides over the court, hearing information, legal arguments and evidence from each party. In some countries, there may also be a jury of common citizens who listen to and decide the result of the case. Each side in the dispute generally has one or more lawyers who present their arguments and evidence to the court. Lawyers will ask witnesses to come to court to provide information that will help the judge decide the case. Physical evidence, such as photographs, maps, documents, medical reports, etc. may also be presented to the judge depending on the issues in the case. In many public interest cases, the courts will allow interested parties or amicus curiae (friend of the court) to provide written arguments and information to the court to attempt to enhance the court’s understanding of the legal issues. After hearing all the evidence from both sides in the dispute, and after reviewing the laws that are relevant to the case, the judge (or jury) will make a decision.

Courts hear different types of legal cases. Legal cases generally are broken down into two broad categories – civil cases and criminal cases – as described in Table 1. Criminal cases are those that many people are most familiar with. They involve an individual who is accused of violating a law and who could be imprisoned as a result of the wrong action. Civil cases are disputes between two private parties, such as over a contract, a piece of property, or a divorce. Civil cases can also involve a private individual bringing a case against

believes they are entitled. Civil cases may also involve the government bringing a case against an individual or a corporation for violating laws, such as regulations that protect the environment.

Civil cases Criminal cases Public interest casesWhat is the legal dispute?

Generally a dispute between private individuals, may be a case involving the government

A crime has been committed, there has been a breach of public order

A dispute between private individuals that touches on a systemic failure, a failure by the government to meet its obligations, a policy or practice that violates constitutional or human rights

Who brings the case?

The aggrieved party, with their own lawyer

The government, the public prosecutor

May be the public prosecutor or attorney general (environmental regulations, consumer protection, etc.); a community or group of similarly situated individuals (class action); an individual who represents an issue or larger group

What are the possible outcomes?

Compensation, return of property, performance of an obligation

Public awareness, policy debate, policy changes, court-monitored remedies, compensation or other forms of reparation, institutional changes, changes in the law


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In reality, public interest cases are most often civil cases, but as the table demonstrates they are quite different from an average civil dispute between two parties. What makes a public interest case different is that (1) it addresses an issue of broad public concern and (2) the legal case is part of a larger strategy of social change.

Most public interest cases start as civil cases in the national courts, but some, start as criminal cases. For example, in the case of Hadijatou Mani v. Niger at the Economic Community of West African States (ECOWAS) Court of Justice, the court held Niger responsible for failing to protect a 12-year-old girl from being sold into slavery where she was physically and sexually abused over many years.

Ms. Mani’s case began as a domestic criminal matter in Niger. Ms. Mani who had been freed by her master after several years, determined to marry someone else. Her former master however forbade her from marrying however and she was arrested after several domestic processes in Niger. At that point a coalition of organisations led by Interights took her case to the ECOWAS Court of Justice.

The case alleged that the Government of Niger had failed to protect Ms. Mani’s fundamental human rights by allowing the practice of slavery to continue in Niger. The court found that “Mrs. Hadijatou Mani Koraou was victim of slavery and that the Republic of Niger is responsible because of its administrative and judicial authorities’ inaction” and further the court “[a]ccepts Mrs. Hadijatou Mani Koraou’s request for reparation for the harmed suffered and grants an all-inclusive compensation of ten millions cfa francs (10.000.000).”

The government of Niger paid the court-ordered compensation to the victim, but the case had broader

to modify harmful cultural norms, the right to dignity, right to life, and the integrity and security of the person.

However, because in many African countries the rule of law is weak and court systems may be subject to

are litigated through African human rights institutions, as described in the next section.

UNDERSTANDING THE AFRICAN HUMAN RIGHTS SYSTEM

Civil society groups and human rights advocates in Africa have long recognized that national court systems often are inadequate and ineffective in addressing human rights concerns. Domestic legal systems have low

Accordingly, across the region, civil society has made use of the regional human rights institutions that have been created through treaty agreements. These institutions include the African Commission on Human and Peoples’ Rights, the African Court of Human Rights, the ECOWAS Court, and the East African Court of Justice.1

Not-guilty verdict,fines, imprisonment(compensation, in somesystems)

These regional and sub-regional bodies provide an additional layer of opportunity for redress of human rights violations, above and beyond national courts. When litigation in domestic courts has been exhausted with no tangible result, or when litigation at the domestic level is futile because of political pressures and lack of judicial independence, many groups have taken their public interest cases to the regional level.

African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights (African Commission) was created under the African Charter on Human and Peoples’ Rights.1 The African Commission is the body that monitors state compliance with the human rights obligations contained in the African Charter.

The African Commission has a mandate to both protect and promote human rights.2 As a result, the African Commission educates about and encourages the development of human rights across the continent. In the pursuit of this objective, the African Commission undertakes country visits3, has several thematic rapporteurs and expert working groups, and generates policy statements and recommendations

4 The African Commission also receives reports from governments on their compliance with the African Charter.

The Commission’s protective mandate allows it to address violations that are brought to its attention, through a “communication.” Any individual or group can bring a communication to the commission, but they cannot do so until all domestic avenues of redress have been exhausted. When the Commission receives a communication it will closely examine whether the complainant has attempted to use domestic remedies

admit the communication for consideration.

Public interest cases at the Commission have focused on the full range of rights protected in the African Charter, such as the rights of persons with mental disabilities, the right to development, the right to environment, torture, the right to a fair trial, and many other issues. protected in the African Charter; a violation of any of these rights can be the subject of a communication to the African Commission.


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2 �e SACD Tribunal’s human rights jurisdiction was previously used in this same manner but it was disbanded in 2012.3 African Charter, art. 30.4 Id.5 African Commission on Human and Peoples’ Rights, List of adopted Promotion/Protection,SpecialRapporteur and Fact-�nding Mission Reports, available at http://www.achpr.org/english/_info/reports_en.html>.6 �e legal force of thematic and country resolutions of the African Commission is not clear, but one commentatorhas observed that they have the same force as General Comments produced by UN treaty bodies.(FRANS VILJOEN, INTERNATIONAL HUMAN RIGHTS LAW IN AFRICA, 402 (2007.) He argues that:�ese resolutions are important normative tools that informthe obligations of states, and the promotion and protectivemandate of the Commission. Resolutions directed at particular states in which pertinent human rights violations are addressed,may serve a quasi-protective function, especially in the absence of individual communications against those states.

The Commission is very open in its rules about who can bring a communication about a human rights violation. The victim(s) or anyone on their behalf may submit a communication. An individual or NGO submitting a communication on behalf of another does not need to have the express consent of the victim. The NGO does not have to have observer status with the Commission and does not need to be a citizen or be registered in the state against which the communication is made.

Communications about human rights violations in African states are an important type of public interest litigation in Africa. Given the weak rule of law and lack of political will to protect human rights in many African states, the African Commission provides an important opportunity for victims and their advocates to address human rights concerns. Although African governments have agreed to be bound by the African Charter and to respect the decisions of the Commission, the Commission is not a court and does not have

Rights (see below).

Despite the fact that it is not a court, advocacy at the African Commission operates in much the same manner as litigation in any court. Moreover, communications at the African Commission play much the

Civil and Political Rights

• Freedom from discrimination (art.2)• Equality before the law and equal protection before the law (art.3)• Right to life (art.4)• Freedom from torture inhuman and degrading treatment (art.5)• Freedom from arbitrary arrest, imprisonment or detention (art.6)• Due process rights (art.7)• Religious freedom (art.8)• Freedom of expression (art.9)• Freedom of association, assembly and movement (arts 10,11 & 12)• Rights of citizens to political participation (art. 13)• Right to property (art.14)

Socio-Economic Rights

• Right to work under equitable and satisfactory conditions and right to equal pay for equal work (art.15) • Right to physical and mental health (art.16)• Right to education (art.17a)• Right to participate in the cultural life of one’s community (Art.17b)• The right to family (art.18a)

Peoples’ Rights

• Prohibition against any forms of discrimination directed at women (art.18c);• Right to special measures for the aged and persons with disabilities (art.18d);• Prohibition of domination of one group by another (art.19);• Right to self-determination (art.20);• Right to sovereignty over natural resources (art.21);• Right to development (art.22);• Right to peace (art.23);• Right to healthy environment (art.24).


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a platform as part of a larger advocacy strategy, and putting pressure on governments to change their policies and practices.

is convinced that the author has no means to meet all or part of the cost of the communication and that a legal aid is essential to ensure equality of parties and for the proper discharge of the Commission’s duties.

The Commission also monitors state compliance with specialized protocols to the African Charter, including the Protocol on the Rights of Women in Africa (Maputo Protocol). The Maputo Protocol addresses state obligations in regard to elimination of discrimination against women, the right to life, integrity and security of the person, elimination of harmful practices, marriage rights, equal protection of the law, education and training for women, health and reproductive rights, widow’s rights, the right to inheritance, protection for elderly women, and protection for women with disabilities among other rights. Violations of these rights can form the basis of a communication at the African Commission.

TOOL: NGO Observer status at the African Commission

Many communications are brought to the African Commission by NGOs working on behalf of victims of human rights violations. Although it is not required for submission of a communication, NGOs can participate in the activities of the Commission most effectively when they obtain “Observer Status”.

African Commission, which the Commission has been granting since 1988.

To obtain Observer Status an NGO must submit a request to the Commission. The objectives of the NGO must be in consonance with the principles of the Constitutive Act of the AU and the African Charter and

address a letter to the Commission Secretariat requesting observer status and accompanied by:

● Proof of legal existence, list of members, constituent organs and source of funding●●● Statement of activities

The Commission secretariat can be reached by email at: [email protected].

Organisations across Africa and the globe have obtained Observer Status with the African Commission as described in Table 2. The table gives an indication of which African regions and nations are most active at the African Commission.

Table 2. African Countries with 10+ NGOs with Observer Status

Benin (16) Gambia (16) Senegal (20)

Cameroon (18) Ghana (10) South Africa (23)

Cote d’Ivoire (11) Kenya (19) Togo (10)

DRC (10) Mauritania (15) Uganda (10)

Egypt (12) Nigeria (28) Zimbabwe (12)


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Observer status grants NGOs the option to attend the opening sessions of the African Commission

sessions dealing with issues of particular interest to them, to make a statement on an issue that concerns them, with permission of the Chairman of the Commission, and to respond to questions directed at them by participants.1 NGOs with Observer Status also are required to submit a report of their activities to the Commission every two years.

Civil society organisations can also engage with the African Commission through the NGO Forum, which is held the week before each Commission session. The NGO form brings together civil society groups from across the continent and the globe to deliberate on thematic and regional human rights concerns and provide an important opportunity for peer-learning, networking, and interaction with the Commissioners. The forum is coordinated by the African Center for Democracy and Human Rights Studies (www.acdhrs.org).

African Court

The African Court on Human and Peoples’ Rights (African Court) was established through a Protocol to the African Charter adopted in Ouagadougou in 1998. The Court was established in order to complement the

The Court consists of 11 judges elected by the AU Assembly from a list of candidates nominated by member states of the AU.

Algeria, Burkina Faso, Burundi, Comoros, Cote d’Ivoire, Gabon, Gambia, Ghana, Kenya, Lesotho, Libya, Mali, Mauritania, Mauritius, Mozambique, Niger, Nigeria, Rwanda, Senegal, South Africa, Tanzania, Togo, Tunisia, Uganda. The Court cannot hear cases of human rights violations that occurred before it became operational in 2004, unless they are ongoing violations.

The African Commission, state parties to the Court’s Protocol, and African Inter-governmental Organisations can bring cases directly to the Court. The African Commission for example, can forward to the Court communications that have been brought to the Commission. For NGOs and individuals, however, access to the Court is more restricted. Cases brought directly before the Court by individuals and NGOs are admissible only when the state against which the complaint is brought has made a declaration under article 5(3) of the Court’s Protocol accepting the competence of the court to receive such complaints. Moreover, only NGOs with observer status before the African Commission can bring cases to the court. At the time of writing, only a few African countries allowed for NGOs and individuals to bring cases: Ghana, Tanzania, Mali, Malawi, Burkina Faso, and Rwanda. Accordingly, use of the African Court for public interest litigation is practically limited to those six countries or to cases that go through the African Commission and are referred.

ECOWAS Court

The Community Court of Justice of the ECOWAS can hear cases arising within any ECOWAS member state. The ECOWAS Court does not require any exhaustion of domestic remedies, and NGOs and individuals can access the court directly. These liberal access requirements make it a valuable tool for the region.

7 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organisations Working in


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protective mandate of the Commission. Its decisions are final and binding on state party to protocol.

the �eld of Human and Peoples’ Rights,ACHPR /Res.33(XXV)99.

The Court examines cases of failure by Member States to honor their obligations under the ECOWAS law, which includes human rights violations. In addition, the Court:

● Has competence to adjudicate on any dispute relating to the interpretation and application of acts of the Community,●● Has power to handle cases dealing with liability for or against the Community, and makes declarations on the legality of Regulations, Directives, Decisions, and other subsidiary legal instruments adopted by ECOWAS.

One of the most well-known cases at the ECOWAS Court is that of Mani v. Niger, described above on page 6.

EAC Court of Justice

The East African Court of Justice (EACJ) hears cases on violations of the rule of law, one of the fundamental and operational principles set out in the East African Community Treaty. Established in 1999 and located in Arusha, Tanzania, the court hears cases from Burundi, Kenya, Rwanda, Uganda and Tanzania.

, the fundamental and operational principles of the East African Community, set out in Articles 6 to 8 of the Treaty, include “good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.” There is no requirement that applications exhaust domestic remedies before bringing an application to the Court. However, if an individual initiates a case then they must lodge their complaint within two months of the decision or action complained of (Article 30(2) of the Treaty). The Court primarily issues declarations as to whether particular acts or pieces of legislation infringe rights or it in conformity with the Treaty. Court judgments are binding, although they can be appealed to the Appeals

procedure rules of the member state where the judgment is enforced.

One of the most important cases at the East African Court has been that of IMLU v. Kenya, in which an organisation sought to hold Kenyan security forces accountable for the torture of residents of the Mt. Elgon

other potential human rights cases at the Court.

PUBLIC INTEREST LITIGATION – STEP BY STEP

The process of any legal case can be lengthy – for public interest cases the process often is even longer and should start well-before any action is taken in court. In general public interest litigation proceeds in three phases – preparation, litigation, and managing the outcome.

It is important to recall that the goal of public interest litigation is to support or enhance a broader strategy of social change. Keeping this in mind, the process of public interest litigation should ideally begin as a component of the broader planning process on a given issue. This is not always the case however. Sometimes, a case may arise in court related to an issue that a coalition of groups already is working on, and the coalition decides to get involved in the ongoing legal case.


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For example in the famous Grootboom case in South Africa, the case began as a rather narrow case in domestic court about the housing rights of a single community. However, South African NGOs, in particular the Legal Resources Center, recognized the potential of the case to achieve broader change and decided to intervene. “The LRC’s intervention shifted the focus from the narrow case to the broader cause. It resulted in a judgment setting out principles and precedent far beyond the narrow circumstances of the Grootboom community and gave a broad declaratory order declaring that the housing policy in the entire Western Cape Province failed to comply with the Constitution… This was only made possible by the LRC’s intervention broadening the focus of the case.”1

Other times, a coalition may be working toward preparing a case for public interest litigation, but an event

has not been completed. For instance, a housing rights group might be preparing for a property rights case, when suddenly a community is evicted and there needs to be immediate court action. Whatever the situation and timeframe, it is important to consider the following steps in preparing for public interest litigation – they may be carried out over time with extensive planning, or they may be undertaken rapidly to meet the needs of a given situation.

Phase 1: Preparation

Identifying the legal issue

The goal of public interest litigation is social change. Accordingly, the general issue of concern will most

a part of campaigns on racial equality, women’s rights, LGBTI rights, housing rights, disability rights, labor rights, indigenous peoples’ rights, environmental rights, access to education, as well as many other civil rights and economic, social and cultural rights.

order for a case to proceed. For example, a coalition of organisation may be working on SGBV.

8 Steve Budlender and Gilbert Marcus, A Strategic Evaluation of Public Interest Litigation in South Africa (Atlantic Philanthropies, 2008), p. 120.

Phase 1 - Preparation

• Identify the issue of concern• Preparing the ground• Research and documentation• Community sensitization, organizing and capacity building• Developing partnerships and networks• Stakeholder mappings• Choosing the legal team• Conduct a risk analysis• Develop communication and media strategy• Establish monitoring and impact assessment mechanisms


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Public interest litigation might address any number of legal concerns related to that issue, such as:

● Victims’ lack of access to health and psychosocial services● Police failure to effectively investigate SGBV crimes● The courts allowing testimony about rape victims’ prior sexual behavior●● Medical professionals requiring bribes for completion of medical forensic forms●● Failure of national laws to recognize certain acts (marital rape, workplace harassment) as sexual violence

particular issue to litigate often is a result of regular human rights monitoring. Organisations that work with victims of human rights violations know the priority issues that people are facing and will understand which violations are particularly severe or urgent. Those likely will be the issues that are good candidates for public interest litigation.

Ultimately, advice from an experienced attorney will help to narrow down the issue to one that a court can consider. Not all issues can be solved through litigation, and one should always consider whether an alternative advocacy strategy would be more effective.

Preparing the ground

Public interest litigation often raises new issues before the courts, brings international legal principles into domestic cases, and can be based on complex factual information. In many jurisdictions, attorneys, judges, and other stakeholders in the legal system have little familiarity with public interest cases. Accordingly, it

case is some years in the future. This can include judicial training and workshops for attorneys on the use

in several contexts, including in Africa, that when judges have received training on the application of international human rights principles they can be more receptive to such arguments when they are brought before the courts. Helping judges and attorneys become more familiar with the legal protection of human

Media training on public interest litigation and human rights can also be an important component of preparing the ground. Generating publicity about a case is a critical part of public interest litigation. When media have been effectively trained they are more likely to provide balanced and accurate coverage about cases that emerge.

Research and documentation

As it becomes clear that a particular issue could be one that an organisation or individual wants to take to court, it will be important to gather as much information about the issue as possible. Part of this process will be human rights monitoring as discussed above, so that it becomes known how the issue of concern is impacting on the lives of those affected. Apart from human rights monitoring however, basic background research will help all parties prepare for the case. There are multiple kinds of background research that will be relevant in most types of public interest litigation including:


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● Human rights documentation

• How is the issue impacting people’s human rights? Which groups are affected? How is the immediate human rights violation impacting other part of their lives, ie. other human rights violations resulting from the central problem? Who are the main actors committing the violations? Are the violations the result of a law, a

● Historical research

• What is the historical basis of this problem? How does it relate to the history of the nation, the region, the community? How have people tried to address this problem in the past? What was the result?

● Research on knowledge, attitudes, and beliefs about the problem

• What do people in the community, region, and nation believe about this issue? What emotions arise when this topic is discussed? Do people know the facts about the issue? Are there rumors and misinformation being spread about the problem? What are opinion leaders and the media saying about the problem? Do different groups of people believe different things about the issue, e.g. women and men, youth and elders, community members and outsiders.

● Statistical research

• What data are available about this problem? Is information available from surveys, the census, govern-s

● Legal research

• Legal research should be conducted in partnership with the legal team. It should examine the national and international legal framework, previous similar cases in the national courts, similar cases from other countries and from human rights tribunals, policy statements by the government on the issue, any state-ments or information about how the judiciary views the issue, and the kinds of remedies that have been ordered in similar cases.

● Other types of research

• it may be important to conduct other kinds of research depending on the issue, such as anthropological research, mapping research, medical research, and etc.

2009. Their case was referred to the African Court of Human Rights in 2012.1 Since 2009 the community and its lawyers have been conducting research. The community and their partners have undertaken community mapping, have gathered statements and documents from dozens of community members, have taken video and photographic evidence, have gathered court documents from related domestic Ogiek land cases, and have partnered with academics and historians who have provided access to their academic research.


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9 Application 006/2012 African Commission v Kenya (re: Ogiek Peoples Development Program v. Kenya).

Developing networks and partnerships

Most public interest litigation is undertaken by a coalition of groups supporting a case. Public interest litigation often requires the energy, skills, and resources of multiple groups. Using networks, partnerships or coalitions to advocate for change allows groups to maximize resources, avoid duplication of efforts, and draw on the social capital (relationships, reciprocity, reputations) of multiple organisations. Appendix B contains a list of resource organisations that can provide assistance related to public interest litigation.

Another example of PIL is when the Endorois community of Kenya took their land rights case to the African Commission1, the community partnered with multiple organisations with different skills sets. They worked with a Kenyan NGO that mobilized minority communities across Kenya related to legal and policy issues, a London-based NGO that had experience with litigation on minority rights, an NGO based in Denmark that had expertise on indigenous peoples’ rights, another international NGO that focused on advocacy and

several academics, as well as a network of NGOs from within Kenya that dealt with human rights.

In another case related to the treatment of Burundian refugees in Rwanda2, multiple international organisations including the Organisation Mondial contre la Torture (OMCT), Association Internationale des Juristes Démocrates, Free Legal Assistance Group, Austrian Committee against Torture, and the Centre Haitien all collaborated to provide information to the African Commission.

Networks such as these have several advantages:

● Increasing credibility, urgency, and legitimacy through multiple organisations pressing a single issue or transmitting a consistent message ● Appealing to a broader constituency than an organisation working alone● Avoiding duplication● Sharing of lessons learned● Complementary strengths on complex issues

Also, because litigation always involves risks, such as political backlash, engaging multiple partners in a litigation effort helps to spread the risk across the coalition. Other key considerations in developing networks include how to coordinate activities, how to develop a leadership structure, and how to clearly

litigation all network activities must be coordinated with the client and the attorneys working on the case. Attorneys must be aware of network activities so that the impact of the actions on the legal strategy can be assessed.

Choosing the legal team

The lawyers who will work on the public interest case are critical players in the process. There are multiple considerations in choosing attorneys for a public interest case, many of which will depend on the case and context. A few general considerations apply to all cases however. While it may appear obvious, it is important that attorneys have experience in the area of law related to the case. This should be the subject of research by the parties involved and litigants should seek input from a wide array of sources on which attorneys might be appropriate for a particular legal matter. Because of the duration of legal cases in many contexts, it can be important to engage a team of two or more attorneys so as to ensure a smooth transition

10 Communication 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group international on behalf of Endorois Welfare Council v. Kenya, Decision on the Merits

(African Commission on Human and Peoples’ Rights 2010).11

Organisation Mondiale Contre la Torture and Others v. Rwanda, Communications 27/89, 49/91, 99/93, Tenth Activity Report, (2000) AHRLR 282 (ACHPR 1996).


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should one attorney not be able to continue throughout the entire case for some reason.

Another consideration is the capacity of the attorney to develop a positive, trusting relationship with the clients or community who are the litigants. Trust and positive communication between attorney and clients can ensure the success or failure of gender components. For example, in cases related to SGBV, including a female attorney on the legal team can be important in trust-building with clients.

Finally, the question of attorney’s fees always will be a consideration in any litigation. Again, fees are

legal aid organisations, specialized NGOs, or even private attorneys who will take cases on a pro bono (no fee) basis. All attorneys have an ethical responsibility to allocate some of their work to pro bono causes. When an attorney takes a case on a pro bono basis, they take on the same responsibilities that they would for any paying client and should treat pro bono cases in exactly the same manner they would any other case.

If attorneys will be paid for public interest litigation, fees should be reasonable and in line with standards set by the national bar association. Networks can also play an important role in fundraising for legal fees. Litigation in any context can be expensive. Attorney’s fees, fees charged by the court, expenses associated with gathering evidence, supporting litigants and witnesses, travel and other logistics can quickly add up to a substantial sum. In addition, litigation can take years to complete and so expenses must be planner over a long term.

It is therefore important to develop a fundraising and resource allocation plan early on. Donor organisations may have budgets to support litigation on issues that fall within their thematic area of focus. Partnering with an organisation at the international level also may bring additional resources to a case. While raising funds necessary for a public interest litigation effort may seem daunting, it is important to recall that many organisations around the world, including across Africa, have successfully completed public interest litigation and manage to obtain the required resources.

Creativity in making use of volunteers to conduct research, gather evidence, and provide support to

network of partners all can make the difference in a successful public interest case.

Attorneys may also take a case on a contingent fee basis, meaning that the lawyers are not paid unless the case is successful in obtaining compensation for the victims, at which point the lawyers take a percentage of the compensation ordered by the court. For example, this was the arrangement in a case in which a

compensation in a settlement with the British government.

Community sensitization and capacity building

Arguably one of the most important impacts of public interest litigation is the opportunity to engage with communities about their rights and the obligations of the state. Organisations that engage in public interest litigation already have a strong community sensitization and empowerment capacities, and these skills must be deployed throughout the litigation process. Communities that are directly impacted by the litigation need to play an active part in the process.

Rights-based education should be a part of any public interest litigation process. Educating litigants and communities about their rights from the outset will ensure that communities have the knowledge to effectively participate in strategy decisions. For example in the South African HIV-treatment case brought by the Treatment Action Campaign (TAC)1, the lead NGO TAC and its partners conducted extensive rights-based education amongst the community and stakeholders.

12 Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC).

13 Steve Budlender and Gilbert Marcus, A Strategic Evaluation of Public Interest Litigation in South Africa (Atlantic Philanthropies, 2008), p. 78.


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Many in the network and community were not immediately supportive of suing the government in relation to access to HIV treatment, and TAC conducted dozens of workshops and sensitization activities to assist

1

In addition, it is important to provide communities with skills to maintain cohesion and resilience through the process. Communities and individual litigants may be the subject of negative publicity, political backlash, misinformation, harassment, and other attacks designed to undermine cohesion and commitment to the issue. Ensuring that individuals and communities have strong support networks, as well as capacity to counter misinformation and rumors, to disseminate accurate information, and to provide urgent support to those in need will help communities grow and become more empowered through the litigation process.

Finally, communities and individual litigants must be active participants throughout the litigation decision-making process. Although lawyers and partner organisations are invested in the process, it is the individual litigants and the community that will live with the results of the litigation. Accordingly, they must have an active role in the decision-making that directly impacts them.

The meaningful participation of those affected by a problem is considered a fundamental right in itself. Participation helps increase accountability, brings the knowledge of those experiencing the problem into the process, and can help to address power imbalances. Meaningful participation is generally understood to mean that the participants have a degree of real decision-making and control in the process. Organisations should consider the following obstacles and incentives to participation:

●● Do different stakeholders need to be involved in different ways?● What channels for participation already exist?● What is inhibiting stakeholders’ participation in the public interest litigation process?● How can the capacity stakeholders be enhanced so that they can be active participants in planning, implementation, monitoring and evaluation? Do they need training in the short-term? Is illiteracy or language an issue? Is transport or childcare a concern?● How can non-discrimination be assured through the programme planning and design process?● Who are the groups and individuals who must be involved early on to ensure success?● How can outreach and consultation take place to maximize input from all stakeholders?●

Stakeholder mappings

Because the purpose of public interest litigation is to support a broader social change agenda, it is important to identify – and when the time is right engage – a broad range of stakeholders. Stakeholder mapping will assist in understanding the potential risks of litigation, will assist in developing a communication strategy, and will provide important considerations for network building. Public interest litigation generally is a legal case against the state, so consideration of stakeholders should begin with

Stakeholders also will include community members, community-based organisations, non-governmental organisations, politicians, faith groups, businesses, media groups and others who will have a direct or indirect interest in the outcome of the case.


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TOOL: Talking with Communities about public interest litigation

Simplifying the process of public interest litigation can help communities determine if taking a case to court is the right decision for them. The following Q&A provides some simple messages to communicate during initial discussions about public interest litigation.

What is public interest litigation?

Public interest litigation is a process of telling your true story to judges in order to convince a court to order the government to change its way of doing things.

What needs to be proved in a public interest litigation case?

The things that will have to be proved during the public interest litigation case are:

Community: What are the important characteristics of the individual, community or group bringing the case?

● A group of similarly situated people● Common ethnicity, language, region● Gender● Disability

State acts and omissions: What has the government done or not done in relation to the individuals/group/community?

Harms: Did the government actions or omissions violate human rights?

● Government actions need to be linked to rights protected in the Constitution, national laws, international treaties that the State has signed, or African regional human rights instruments such as the African Charter on Human and Peoples’ Rights.

Damages: How did the human rights violations affect people in the short-term and long-term?

● What is the value of what was lost?● What was life like before the violations and what it is like now?● What opportunities have been missed because of the acts or omissions?

Remedy: What would help solve the problems created by the violations?

● Restitution (putting things back the way they were)● Compensation (providing money or other forms of payment to recover the value of what was lost)● Guarantee of non-repetition (changing laws or policies; providing training; reforming institutions)● Memorialization (recognizing victims and helping people remember what happened)


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What evidence may be used to prove the case?

● Witness statements from community members● Photographs and video●● Maps● Testimony by experts from outside the community● Medical reports● Other types of evidence depending on the issues in the case

What will help a community be successful through public interest litigation?

● Strong sense of unity● Community leadership● Networks and allies● Legal team dedicated to the cause● Community team dedicated to the cause● Long-term perspective●

What are possible risks for communities who engage in public interest litigation?● Community division● Enhanced scrutiny of the community● New opportunities for political and other forms of manipulation● Fatigue with a long process● Backlash from government, other communities

● Enhanced knowledge of rights● Enhanced solidarity● Empowered community● Developing new networks● Clarifying community priorities ● Enhanced public awareness of the community’s situation

.


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As with any planned advocacy activity, litigants and their partners should conduct a risk assessment beforeengaging in public interest litigation. As shown in the following table there are several possible risks andbenefits of public interest litigation that litigants should consider.

community involved, and partners to determine whether litigation is the appropriate strategy for a given issue and whether the time for litigation is right.

Develop a communication and media strategy

Recalling that public interest litigation is a component of a social change strategy, communication about the violations that gave rise to the case, as well as about the litigation goals and possible outcomes is critically important. While a full discussion of how to develop a communication and media strategy is beyond the scope of this guide, there are certain aspects of communication about public interest litigation that are unique. First, the communication strategy may need to include information explaining complex or unfamiliar legal topics to the public. This may require unique expertise amongst a communication team. In addition, as with other aspects of advocacy and programming, communication planning must include input from the clients and the attorneys in the case. For instance, domestic laws or the courts themselves may restrict what information about a case can be publicly communicated. In addition, attorneys may have clear recommendations about the timing of certain communications or media strategies, in relation to the ongoing developments in the case. These issues should be incorporated into the normal communication planning that the organisation would do for any program.

Establish monitoring and evaluation mechanisms

The same general principles apply to monitoring and evaluation of public interest litigation actions as apply to other program activities. Just as in all monitoring and evaluation, it is important to directly link the goals of the process to monitoring and evaluation indicators. Public interest litigation can be evaluated on a number

.

Risks

• Unduly burden client• Political backlash• Risk safety of client, especially vulnerable groups• Privilege political or strategic goals over individual goals• Set bad precedent• Undermine judiciary by highlighting lack of independence or power on a given issue•

• Win a desired outcome for the client or group of clients• Set important precedent (legal principle binding on future cases)• Achieve change for similarly - situated people• Spark large scale policy changes• Empower clients• Raise awareness• Encourage public debate• Highlight the lack of judicial independence or fairness• trying to silence voices on the issue


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When public interest litigation has clear goals and objectives, then selecting appropriate monitoring and evaluation indicators becomes much easier.

Phase 2: Litigation

Litigation refers to the process the case will take through the courts, whether at the domestic level or in a regional court or human rights body. During the litigation phase, much of the process will be controlled by the rules of the court or human rights body, and the time frame of many actions will similarly be established by those rules and the judge(s) in the case.

Legal Indicators

• Court monitoring (outside expert observers invited to monitor the legal processes)• Case outcome (win, loss, remedy ordered)• Judgment analysis (how did the court incorporate arguments, were human rights principles included, did the court’s analysis match that of the litigants)• Tracking impact of the case on future litigation, such as citation or emergence of similar cases

Policy change indicators

• Review of policy changes along timeline in relation to litigation• Assessment of content of policy in relation to arguments nade in the litigation

Media/Public awareness indicators

• Tracking coverage of the case• Content analysis of media coverage• General survey of public awareness at key points throughout the litigation

Knowledge, Attitude and Belief indicators

• Baseline and subsequent regular assessment of knowledge, attitudes and beliefs amongst key populations related to the issues in the case (community, policy makers, members of the media, members of the legal community, etc.)

Community Empowerment indicators

• Track changes in community governance and/or decision making structure / process• Examine participation of community members in internal and external processes• Qualitative interviews with community on how the litigation has impacted them personally and as a group


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Collect evidence

All legal cases are based on evidence, information that will be provided to the court to help it make a decision about the legal issues. Evidence must show that a violation took place, that the state was responsible for the violation, that the violation caused harm, and that there is a remedy that the court can

depend on the issues and will be determined in consultation with the legal team. In general however, there are several types of evidence that are used in many legal cases:

● First-person testimony – statements from affected individuals about the violations that they have experienced and how it has impacted them

● Expert testimony – statements or reports from experts about important issues in the case, such as historical information, anthropological information, state policies, statistics, medical issues

● etc. as well as photos or videos that relate to the issues in the case

● Physical evidence – physical items that have a bearing on the case For example, in cases brought to the African Commission in relation to allegations of torture in Sudan,

the complainants relied on personal statements, expert evidence (doctors’ testimonies) and a report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. A list of the names of the alleged victims was also provided.1

Gathering all these types of information requires coordination between the network/coalition working on the case, the affected community, and the legal team. In relation to evidence gathering, the legal team must lead the effort so that the information gathered can be submitted in the form and manner required by the rules of the court.

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Torture, 2006).

Phase 2 - Litigation the public interest litigation case

• Collect evidence• Identify the actual litigant• Choose the forum• Identify expert witnesses• File the case• Appear in court• Seek provisional measures or interim orders• Brief the stakeholders, maintain cohesion• Manage information and generate publicity• Support the litigants and witnesses, especially relevant in SGBV cases• Considering appeals


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Identify the litigant

In order to proceed with a legal case or a complaint to a human rights body, the case must be brought under the name of an individual, community, or group of individuals. Claims brought by groups of individuals are referred to as a class action, because the case is brought on behalf of a large group of similarly situated individuals who have experienced similar violations. Not all legal systems allow for class action litigation, but most have some mechanism to deal with legal cases that relate to a large number of individuals with a similar experience. Public interest litigation can be of any type – there may be a single individual whose case represents a systemic failure or a particularly serious incident, there may be an entire community that has been affected by a single event, such as an eviction, or there may be a large group of individuals who have had a similar experience of violations over a period of time, such as prisoners who all experienced torture during a particular regime.

made. For example, a prominent individual case in Zambia addressed sexual harassment and assault of

and was informed that the teacher had been involved in other similar incidents. As a result, R.M. brought a civil suit in the Zambian courts against her teacher, the school, and the Ministry of Education. She sought damages from her teacher for pain and suffering and sought to hold the school and the Ministry accountable for failing to take any action against the teacher in light of the previous incidents. R.M. and her family had unique in their determination to pursue the case, given the stigma associated with sexual violence against girls in school. They also had the support of the international NGO Equality Now, which provided funding for the case. R.M.’s case ultimately was successful (see p. 29 for discussion of remedies ordered in R.M.).

However, when a case is being brought for a class, a choice must be made as to who will represent the group. Many considerations come into play in such a decision, including the personal characteristics of the litigant – gender, age, psychology, personal commitment, communication abilities, etc. – the willingness of the individual to represent the group, and the support network available to the litigant. These decisions should be consultative and any litigant should receive extensive information about the process, expectations, and possible risks associated with being a lead litigant in a public interest case.

Choose the forum

A forum is the court or other tribunal in which the litigant chooses to submit their case. In consultation with the legal team, a decision will be made as to which forum is the best place to being the case. Most cases will begin at the domestic level, but a decision might be made to take a case to a regional court or human rights body depending on the issue. This decision will depend on the judicial environment in the country, the political situation, timing, and the rules of various courts.

In addition to national courts, regional courts, and the African human rights bodies described above, some orld

Bank Inspection Panel and the African Development Independent Review Mechanism. These two bodies provide an avenue for complaint and possible redress for those negatively impacted by projects that receive funding from the World Bank or AfDB. Complete information about the World Bank Inspection panel,

.inspectionpanel.org.

Submissions to the AfDB need to be in writing, dated and signed and sent by any suitable means (e.g. letter, email, fax, etc.) to the Director of CRMU, AfDB B.P. 323 – 1002, Tunis Belvedere, Tunisia (Tel.: +216 71102056 - Fax.: +216 71835699- Email: [email protected]) or to any of the in

’s names and

The request needs to describe all the relevant facts including the harm suffered by or threatened to affected parties by the alleged act or omission of the AfDB entity in contravention of its applicable policies and procedures.


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File the case and appear in court

There will be a series of appearances in court, with the attorneys, the litigants and witnesses during which evidence and legal arguments will be presented by both sides in the case. This process can be lengthy,

Seeking provisional measures or interim relief

In some courts or tribunals, it is possible to apply for provisional measures, also called provisional remedies, interim measures, interim injunctions, and preliminary injunctions. Provisional measures are designed to prevent any further harm to the parties while the case is being decided, so the court or tribunal may order the defendants to cease certain actions at the outset of the case or prevent a potentially harmful law or policy from going into effect.

For example, in a case brought by the Ogiek community of Kenya related to evictions from their traditional lands, the African Court of Human Rights issued provisional measures requiring the state to cease any

.

Communication during the litigation

Communication during the litigation process must be coordinated both internally and externally. As the case is ongoing, maintaining internal communication with the network/coalition, community members, and other

a lengthy litigation, but regular communication and information exchange can mitigate this risk. Regular

needs for support during the litigation process has been shown through multiple public interest cases to be critically important to ensuring that the community is not divided and undermined through the process.

Externally, information management about the case and the issues should follow the media and

networks should be goal-focused so as to support the ultimate strategy for social change.

Supporting litigants, communities, and witnesses during the litigation

During a litigation process, individual litigants, communities, and in some cases witnesses, will need not only information but also multiple types of support. These types of support may include psychosocial services, health services, relocation, urgent economic assistance, transport and other forms of support as

can pose a risk of re-traumatization. Vulnerable victims should have access to support and counseling as needed to ensure that they are not retraumatized. For this reason it can be important to include in the coalition or network organisations that specialize in providing this kind of support. It may also be important

they work with victims in a sensitive manner that minimizes risk of re-trauma.


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Considering appeals

Understanding Legal Systems above). Appeals can be key to strategic litigation, both in terms of ensuring that a case will be fairly heard and in terms of getting access to higher, more prominent courts to raise the

determine whether an appeal is warranted, and assess how long the appeals process could take.

Phase 3: Managing the Outcome

The outcome of public interest litigation is a judgment or a decision in favor of one of the parties. While a decision in favor of the victims always is the desired result, win or lose, public interest litigation can raise awareness on an issue, enhance organisational and community capacity around an issue, force the state to negotiate, or lead to reconsideration of policy. Moreover, winning a case rarely is the end of the story as far as advocacy.

Winning the case

When victory is the result in a public interest case, the court will side with the litigants and may order a variety of remedies:

●

●

● Supervisory orders – the courts orders the government to take action to address an issue generally and report back to the court and the litigants about how it is taking action

● Changes to an existing law;

● Penalties for perpetrators involved in a particular case;

● Establishment of mechanisms or procedures to ensure effective enforcement of a law, such as training of the police, prosecutors, judges and other responsible government workers on laws relating to female genital mutilation and gender sensitivity;

● Establishment of a dedicated complaint and follow-up mechanism for human rights violations;

Step 3 - Managing the win (or loss)

• Communications strategy, win or lose• Managing the risks of victory/losing• Maintaining community cohesion• If case is won, advocacy on implementation• If case is won, strategic plan for implementation, community preparation• Review of experiences / achievements and documentation of lessons learned


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● Provision of support services for victims, including health services and counseling;

● Establishment of mechanisms or procedures for the protection of vulnerable victims, such as shelters, complaint mechanisms, mandated reporting through educational, health or other institutions;

● Provision of accelerated access to justice (fast-track);

● Establishment of independent inquiry process;

● Creation and wide implementation of awareness-raising, educational and communication strategies on the issue;

●

● Monetary compensation.

In a 2008 decision by the High Court in Zambia, the court ordered several of these remedies in relation to a young girl who had been raped by her teacher. The court ordered damages to be paid to the girl who had suffered pain and psychological distress and also ordered that her medical treatment be paid for. In addition, the Courts ordered the Ministry of Education to develop and implement regulations that would protect other girls in school from such sexual violence. Finally, the court referred the case to the Public Prosecutor requiring that an investigation and prosecution be opened against the teacher who had been accused by other students of similar behavior.1

In the event that a court orders one or more of these or other remedies, the network/coalition that has worked on the case must then turn its attention to ensuring effective and timely implementation of the remedy. Implementation may require additional advocacy, media engagement, political pressure, and engaging new coalition partners with different skills. To ensure that the victory has the intended broad social impact, it may be necessary to carry out civic education and sensitization about the court’s decision or to

for victims are ordered, there may be work to be done identifying eligible victims and educating them about their entitlement under the judgment. Especially in the case of any monetary compensation, helping victims

compensation has a transformative impact on the victims involved.

When veterans of the Mau Mau insurgency in Kenya sued the British government for compensation based on torture and other inhumane treatment they suffered, they ultimately won their case through a negotiated settlement. Each member of the group was awarded compensation in the amount of several thousand dollars. Unfortunately, news of this compensation award spread rapidly and attracted con men who targeted

such risks is an important component of managing the win.

Losing the case

Losing the case remains a risk in any litigation. Litigants, communities and advocates must be prepared for this possibility and a strategy to deal with an adverse result should be developed early on. In the event of a loss, it is important to remember that public interest litigation is one tool that forms part of a broader strategy for social change. When public interest litigation does not achieve the desired result, other strategies can nevertheless be employed.

1 A Guide to Using the Protocol on the Rights of Women in Africa for Legal Action (Equality Now, 2011), p. 30.


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advocates to the cause. Most important, a loss cannot be allowed to undermine the cohesion of the network/coalition and the community engaged in the issue.

TOOL: Questions to Consider before Starting Public Interest Litigation

Before beginning public interest litigation, consider...

• societal problem• Would a court decision be able to address the problem?• Is there a clear objective for the litigation?• Are the cause and the key issue in the case easy to understand for thr media and the general public?• What is the client’s goal and how can the lawyer help the client clarify the goal(s)?• What level of commitment does the client have to achieving the goals?• Beyond litigation, are there other methods of achieving the goal(s)? Are these more or less likely to be effective? • What are the legal claims and how strong are those claims, within the court systems and in public opinion?• Who are the opponents and what is the estimated level of commitment to that opposition? who are their supporters?• Who else has an interest in the issue and what are those interests? will they support the client’s position?• Will those with an interest be willing to work together on reaching a solution?• the costs of a loss?• Is there an alternative or compromise that will meet the needs of both sides? is exploration of other avenues an option/• What political repercussions will follow either a win or loss in court?• Is the requested remedy easy to implement? (Sources: Rekosh, Ed, Public Policy Advocacy: Strategic Litigation and International Advocacy, public Interest Law Initiative, Columbia University Budapest Law Center (2003); Children’s Rights; A Guide to Strategic Litigation (Children’s Rights information Network, 2008).


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Appendix A. Further Reading

Document: Filing a Communication before the African Commission on Human and Peoples’ Rights: A complainant’s manual

Publisher: FIDH (2013)

Link:

Document: A Guide to the African Human Rights System

Publisher: Pretoria University Law Press (2011)

Link:

Document: Gender-based Violence Legal Aid: A Participatory Toolkit

Publisher: American Refugee Committee (2005)

Link: http://www.arcrelief.org/gbvbooks/cdrom/content/Book_1_Toolkit/BOOK1.pdf

Document: A Guide to Using the Protocol on the Rights of Women in Africa for Legal Action

Publisher: Equality Now/SOAWR (2011)

Link: www.equalitynow.org

Document: Promoting Justice: A Practical Guide to Strategic Human Rights Lawyering

Publisher: International Human Rights Law Group (2001)

Link:

Document: Children’s Rights: A Guide to Strategic Litigation

Publisher: Child Rights Information Network (2008)

Link: http://www.crin.org/en/library/publications/childrens-rights-guide-strategic-litigation

Document: The prohibition of torture and ill-treatment in the African human rights system: a handbook for victims and their advocates

Publisher: OMCT (2006)

Link:

Document: A strategic evaluation of public interest litigation in South Africa

Publisher: Atlantic Philanthropies

Link:


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Appendix B. Resource Organisations

Center for International Environmental Lawwww.ciel.org/Law_Communities/LAC_About.html+1-202-785-8700 [email protected]: Global

INTERIGHTS (no longer in service)www.interights.org+ 44 (0)20 7264 [email protected]: Global

Katiba Institutewww.katibainstitute.org+254 (0)704 594 962 [email protected]: Kenya

Minority Rights Group Internationalwww.minorityrights.org+44 (0)20 7422 [email protected]: Global Southern Africa Litigation Centrewww.southernafricalitigationcentre.org+27(0)11 587 [email protected]: Angola, Botswana, DR Congo, Lesotho, Malawi, Mozambique, Namibia, South Africa,

Swaziland, Zambia, Zimbabwe

Open Society Justice Initiative (OSJI)www.opensocietyfoundations.org/about/programs/open-society-justice-initiative+1-212-548-0600Countries: Global

Institute for Human Rights and Development in Africa (IHRDA)www.ihrda.org/cases/+220 44 10 413/[email protected]: Africa regional

Center for Public Interest Law (CEPIL)www.cepil.org.gh+233-(0)[email protected]: Ghana


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ESCR-Net (Economic, Social and Cultural Rights Network)[email protected]: Global

Equality Nowwww.equalitynow.org+254-20-271-9913/[email protected]: Africa regional

Foundation for Human Rights Initiative (FHRI)www.fhri.or.ug+256-414-510263, 510498, 510276, [email protected]: Uganda

Federation of Women Lawyers (FIDA)

Countries: Cameroon DR Congo, Egypt, Ghana Kenya Lesotho Liberia, Nigeria Senegal,

Sierra Leone, South Africa, Sudan, Togo


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ACORDP.O. Box 61216 - 00200,Nairobi, Kenya

Tel. +254 20 272 1186Email. [email protected]

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