Photo by ProRights PUBLIC INTEREST LITIGATION: AN OVERVIEW PUBLIC INTEREST LITIGATION: AN OVERVIEW

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1 Photo by ProRights PUBLIC INTEREST LITIGATION: PUBLIC INTEREST LITIGATION:

2 ABOUT PRORIGHTS CONSULTING ProRights mission is to support projects that promote social inclusion and civic participation, gender equity, and 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 programs, conducts high quality research that reflects the voices of stakeholders, and develops advocacy strategies that focus on claiming rights. ProRights is registered in Kenya and the United States. ProRights Consulting 2013 All rights reserved. Material from this publication may be reproduced, with appropriate citation, for teaching or for other non-commercial purposes. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders. For further information please contact ProRights Consulting. ProRights Consulting PO Box 51538, Nairobi, KENYA, Tel: USA Tel:

3 OVERVIEW Public interest litigation 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 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 social change on a particular issue. WHAT IS PUBLIC INTEREST LITIGATION? Public interest litigation is also sometimes referred to as strategic litigation or impact litigation. This publication uses the term public interest litigation because it is the most descriptive. The first component is litigation. Litigation is the process of taking legal cases through the court system. These might be either civil cases or criminal cases. Criminal cases involve the state bringing a legal case against someone who has violated the criminal law or penal code, by committing an assault or a robbery or rape for example. At the end of the process the accused individual is found guilty of the crime and is sentenced to some term of punishment, or is found innocent and is not subject to further judicial process. Public interest litigation is rarely pursued through a criminal prosecution. Public interest litigation generally involves civil cases these types of cases are much more diverse, involving any legal matter outside the realm of criminal prosecution. Civil cases include for example claims that a law is unconstitutional, that a contract has been violated, that there has been discrimination, that property has been wrongly transferred, or that someone is entitled to compensation based on violations of their rights, to cite a few examples. Civil cases can also include claims for reparation or compensation based on a criminal act. Whereas criminal cases are prosecuted by the state, for example by a public prosecutor who works for the government, civil cases generally are started by private individuals or a group who seeks the assistance of a private attorney to represent their interests before the courts. 1

4 The second component is the public interest. Public interest litigation is a legal case that has a broader social goal as part of its purpose. While most legal cases focus on obtaining a certain result for a specific client, public interest litigation focuses on achieving social change 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 in the public interest. As a result, most public interest litigation involves human rights violations that affect many people, such as discrimination, torture of political opponents, gender-based violence, or concerns about freedom of speech or freedom of association. 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. Even if losing is the likely result, organizations may decide to engage in public interest litigation as part of a broader campaign on a human rights issue. 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. 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. Public interest litigation can be conducted in any judicial forum, whether local or national courts, international or regional courts, or quasi-judicial bodies such as human rights commissions. WHO CAN USE PUBLIC INTEREST LITIGATION A S A TOOL? Public interest litigation can be an important tool for any individual or group interested in social change and human rights protection. 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 organization with experience in other public interest cases. However, some successful public interest cases are brought to the courts by a dedicated individual working with a single attorney. 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 2

5 rights of prisoners, the rights of children, housing rights, and many other human rights issues. WHAT ARE THE POTENTIAL BENEFITS? Like any legal case, public interest litigation has a core focus on obtaining a specific result for the client who brings the case. However, because public interest litigation is at the same time focused more broadly, there are many other possible beneficial outcomes: 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 Gain an official platform to speak out on issues when government may be trying to silence voices on the issue 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. The government of Niger paid the court-ordered USD $19,000 in compensation to the victim, but the case had broader implications. It raised international and national awareness around the issue of slavery and human trafficking and also set important precedent on human rights in the region, specifically addressing states commitments to modify harmful cultural norms, the right to dignity, right to life, and the integrity and security of the person. WHICH BODIES CAN HEAR PUBLIC INTEREST CASES? 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 quasijudicial in that they are administrative processes or human rights tribunals whose judgments may or may not have final, binding authority. In the African context, public interest litigation takes place in the following settings: 3

6 National courts or administrative processes Regional: o African Commission on Human and Peoples Rights o African Court of Human Rights o African Development Bank Independent Review Mechanism Sub-regional o East African Court of Justice o Southern African Development Community (SADC) Tribunal o Economic Community of West African States (ECOWAS) Court of Justice International o International Court of Justice (for limited issues) o United Nations human rights mechanisms o World Bank Inspection Panel It is important to seek advice from experts on which setting would be the best for a particular public interest case. All judicial and quasi-judicial bodies have specific requirements about whether, how, and when cases can be brought to their attention. WHAT TYPES OF REMEDIES ARE AVAILABLE? The goal of any litigation is to obtain a specific remedy, or type of relief, for a client the return of property, monetary compensation, the performance of a specific contractual obligation. Public interest litigation also seeks broader remedies that have positive impacts for a whole group or throughout society. Possible remedies include: Enactment of a new law; Changes to an existing law to make it comprehensive; Allocation of government funding for particular social goals; Penalties for perpetrators involved in the 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 those whose rights were violated; Provision of support services for victims, including health services and counseling; 4

7 Establishment of mechanisms or procedures for the protection of those whose rights were violated, such as shelters, complaint mechanisms, mandated reporting through educational, health or other institutions; Provision of accelerated access to justice (fast-track) for future cases; Establishment of independent inquiry process; Creation and implementation of awareness-raising educational and communication strategies on the issue; Official apologies; and/or Monetary compensation. Determining which type of remedy will meet the goals of social change and human rights protection can be complex. This will an ongoing discussion with all the stakeholders involved in the process. Importantly, the type of remedy that is desired will influence the decision about which legal forum is most appropriate. Also, stakeholders may determine that litigation is not the best or most efficient way to obtain the desired remedy. WHAT ARE IMPORTANT CONSDERATIONS BEFORE LITIGATION BEGINS? 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 Litigation experts have developed key questions that anyone considering public interest litigation should ask before beginning the process. These questions should be considered in consultation with all stakeholders as well as an experienced lawyer. Is there a legal issue involved that exemplifies or relates to a broader social or societal problem? Would a court decision be able to address the problem? Are the cause and the key issue in the case easy to understand for the 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? 5

8 Beyond litigation, are there are other methods of achieving the client s goal(s)? Are these more or less likely to be effective? What are the legal claims and how strong are those claims on the merits, within the system 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? How difficult will it be to prove the case? How costly will it be? Who will bear 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? An experienced lawyer can also help stakeholders work through the ethical considerations involved in public interest litigation. All lawyers have ethical obligations when they undertake any case, and it is important to consider the following issues, among others: Should the lawyer encourage the client to continue the case despite a low likelihood of success? For sexual and gender-based violence cases or cases relating to torture in particular, how can clients be supported effectively through a lengthy litigation process? Does sufficient financial support exist to see the case to conclusion, considering that many legal cases drag out over several years? Do the potential benefits of pursuing the case but losing outweigh the burden of litigation the client faces? What extra-legal work can be done to support the case? Will such efforts undermine the judicial process? Will such efforts create a sustainable change in the situation? Questions adapted from: Wilson, and Rasmussen, Promoting justice: A Practical Guide to Strategic Human Rights Lawyering (International Human Rights Law Group, 2001), at 61-62; Geary, Children s Rights: A Guide to Strategic Litigation (Child Rights International Network, 2009), at 8. 6

9 CONCLUSION Public interest litigation is a powerful tool that can be an important part of advocacy for social change. Public interest litigation has many potential benefits, including wide reaching legal and policy changes, but like other legal cases it can be a challenging, 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. Public interest litigation should always be carried out in partnership with an experienced attorney or legal organization. As part of a comprehensive strategy to protect human rights, public interest litigation can be one of the most important tools available for social change. REFERENCES Rekosh, Ed, Public Policy Advocacy: Strategic Litigation and International Advocacy, Public Interest Law Initiative, Columbia University Budapest Law Center (2003). Rasmusen, Jennifer and Richard J. Wilson, Promoting Justice: A Practical Guide to Strategic Human Rights Lawyering, International Human Rights Law Group (2001). Child Rights Information Network, Children s Rights: A Guide to Strategic Litigation (2008). UN Women, Online Knowledge Center to End Violence Against Women and Girls - Justice Sector (2011). Equality Now/SOAWR, A Guide to Using the Protocol on the Rights of Women in Africa for Legal Action (2011). 7