This section was adapted from text in ‘Socio-economic Rights in South Africa’
S Liebenberg and K Pillay, 2000

What is the law?

A law is a rule enacted by the highest political authority, such as parliament. It aims to create the framework for implementing a policy. Laws prescribe, prohibit or enforce certain actions.

Litigation involves taking a party or parties, including government agencies, to court. Litigation can be used to raise awareness about a problem, to help define a programme or right, to make an individual claim or as a long-term strategy for law reform.

You can decide to use the law:

• After trying other strategies
• At the same time as trying other strategies
• In some urgent cases before trying other strategies.

Regardless of when you decide to use litigation, experience demonstrates that it is most effective when undertaken in conjunction with other campaigning tools.

There are at least four possible platforms for legal action, namely:

• National courts
• National ombudsbodies or public protectors
• International courts or conventions
• International ombudsbodies or committees

Critical success factors

• Litigation is a useful way of enforcing rights when a government is not prepared to consider input or change laws, policies or programmes (see the Treatment Action Campaign case)
• Before embarking on litigation, be clear on the desired outcome and choose the best strategy to meet your objective. In certain kinds of cases, courts can give a definite remedy. But in most cases it may be more effective to put your organisation’s resources into trying to get the decision-makers to adopt a new law or programme.
• Know your time-frames and resource limitations. Court cases can be expensive, time-consuming and take a long time to reach final conclusion.
• Using the law as a campaigning technique is important not only for the remedies that can be won in an individual case, but also for the power of the precedent which a case can set.
• Usually court cases alone are not sufficient. They need to be supported by other community actions that sustain the pressure and monitor the implementation of the court decision.

India’s public interest action In April 2001, the Right to Food Campaign in India filed a public interest litigation that food grain stocks lying in government warehouses should be made available through the public distribution system. Following a sustained CSO campaign with grassroots participation in 14 States and widespread media coverage of a people’s hearing the Supreme Court directed all the State Governments in November 2001 to introduce cooked mid-day meals in primary schools within six months of the order. Since the Supreme Court order came out the Right to Food Campaign has been monitoring and campaigning for the State to fulfil their obligations.

Actions

Those who can use the law or go to court include:

• An individual
• An organisation on behalf of someone who cannot take up a case in his/her own name such as a minor
• An organisation on behalf of a group of people, e.g. people living in a shack settlement
• An organisation on behalf of a class of people
• An organisation acting in the public interest, e.g. challenging school fees
• An association acting in the interests of its members, e.g. a trade union.

National courts

The possibilities of using national courts vary considerably from country to country and depend on your legal system and laws. In some countries there is little trust in the legal system and its ability to effect change. There are many reasons for this including a lack or power or independence of the judicial system and elitism of lawyers and judges.

Where a law does exist requiring the State to provide for its citizens or to protect the environment, and the courts are independent, there may be opportunities for using the courts to hold the government to their obligations in terms of the law.

Where no such laws exist, or where the judicial system cannot be relied on, you can appeal to national ombudsbodies if these exist, or turn to the international legal community to support you in your desire to secure a remedy.

National and international ombudspeople

Ombudsbodies may perform one or more of the following functions:

• Raising awareness of the MDGs
• Scrutinising existing laws to ensure they are consistent with obligations in terms of the Millennium Declaration
• Identifying national-level benchmarks against which the realisation of the MDGs can be measured
• Monitoring compliance with specific obligations and providing reports thereon to the public
• Examining complaints alleging infringements or failures to address obligations.

In some instances ombudsbodies might be an appropriate forum for a group to take their case to. CSOs frequently use this mechanism to seek a remedy for a violation or to pressure a government to cease activities or to address a problem proactively.

The response of ombudsbodies to a complaint varies depending in part on the rules and procedures of a particular body.

International litigation

By signing an international covenant a country shows its intention to comply with it. The respective State then has an obligation to abide by its commitments. This obligation requires the voluntary co-operation of governments.

Most covenants and international treaties are enforced within countries rather than at the international level. Therefore the first remedy must always be a national legal avenue. You must have exhausted all national channels before taking your issue to international jurisprudence bodies.

Where this fails, the UN’s method to combat violations of obligations usually consists of publicity, political pressure and advice rather than court cases. The UN system does have some success and can influence the way a country treats its citizens. Most governments respond to public opinion and take steps to meet an obligation when pressured to do so by organisations and people domestically and internationally.

Sometimes, however, legal action is the best option. Here it is important to determine whether there are legal remedies available and to do your homework properly. A good example of the power of international litigation is detailed below in the SERAC case at the African Commission.

Where international court cases are used, such as cases pursued through one of the regional organisations like the Organisations for Security and Co-operation in Europe or the African Charter, the punishment following a guilty verdict is seldom harsh.

Obstacles and challenges

• Litigation takes time. Often it takes years before there is a final decision.
• It costs money to brief and employ a legal team to defend you.
• The remedy may be limited as courts seldom go as far as you would like.
• There is a danger of developing a “legalistic” approach where communities become reliant on the legal system to define and exercise their rights.
• It may be difficult to sustain community interest, as court cases can be alienating and can leave ordinary people behind.

Benefits

· A legal case can create a focal point for attention and raising awareness and can therefore be a useful tool for organising people.

• A case can establish a precedent for other cases nationally or internationally.
• Litigation provides an opportunity to unpack the obligations of the state.
• It is a useful way of highlighting an issue in the international arena.
• A court decision provides finality on the issue.

SERAC uses international litigation The Social and Economic Rights Action Centre (SERAC) seeks to promote economic and social rights in Nigeria. It works primarily at the national level to monitor government practices, advocate for legislative and policy changes and promote awareness. In partnership with the Centre for Economic and Social Rights (CESR) in New York, SERAC led a petition to the African Commission on Human and People’s Rights alleging violations by the Nigerian Government of the right to health and a healthy environment, the right to housing and the right to food. SERAC sought the intervention of the African Commission because of the futility of legal action in Nigeria resulting from the operation of ouster clauses contained in military decrees removing the jurisdiction of the courts over human rights cases. The application alleged that the military government of Nigeria was directly involved in oil production through the State oil company, the Nigerian National Petroleum Company, the majority share in a consortium with Shell, and that these operations have caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People. The petition further alleged that the Nigerian Government condoned these violations and that it failed to monitor the operations and ensure that the required safety measures were put in place. SERAC further alleged that in the course of defending the operations the Nigerian security forces attacked, burned and destroyed several Ogoni villages and destroyed their food sources. SERAC claimed that these were all violations of the African Charter and sought remedy from the African Commission. The case was initiated in March 1996 and was ended by October 2001. The Commission found that the Federal Republic of Nigeria have violated Articles 2 (take steps to realise the rights) 4 (right to life), 14 (right to property), 16 (right to enjoy the best attainable state of physical and mental health), 18(1) (protection of the family), 21 (right to free disposal of wealth and natural resources) and 24 (right to a general satisfactory environment) of the African Charter on Human and People’s Rights. It appealed to the government to ensure protection of the environment, health and livelihood of the people of Ogoniland by: Stopping all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and permitting citizens and independent investigators free access to the territory. Conducting an investigation into the human rights violations described above and prosecuting officials of the security forces, NNPC and relevant agencies involved in human rights violations Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government-sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry. Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.

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