Strategic Litigation

Strategic litigation refers to legal cases that are initiated to achieve legal and social change, or to clarify or update law. Strategic litigation is concerned with social justice and future outcomes as well as what happens to the individual(s) involved in the case. Strategic litigation can establish specific legal points, lead to certain actors and interests being accepted as having legal rights, change laws or policies, ensure that laws are interpreted and enforced properly. Sometimes they are 'test cases' to establish that a particular law applies to a particular situation or group. Other objectives can include raising awareness; building political pressure; identifying gaps in the law; fostering public discussion and coalition building.

The importance of evidence

One of the most important aspects of taking a case to court is the availability of evidence. Successful litigation very often depends on having reliable information from witnesses, as well as photographs, statements, notes and other documents. Organisations that support strategic litigation can train counselors and para legals to collect information and encourage the community to document abuses as they happen.

For more information see:

Open society Foundation Report: Documenting Human Rights Violations in Kenya: A Report Based on a Study Conducted in Nairobi, Kisumu, Busia, Nanyuki, Mombasa, and Malindi Towns 

ILGA. Human rights documentation tools

Image: A trained counsellor in a sex worker organisation in Cambodia takes photographs and notes of a women beaten during an arrest. Source: Women's Network for Unity

Risks and Challenges of Strategic Litigation

All legal actions carry risks for people who are already stigmatised by actual or perceived sexual or gender transgression - and sometimes for those who support them as well. Those who step up to participate in court cases have to weigh up the potential personal, and political consequences of the courses of action before them.

Even in the more benign environments, engagement with the law carries risks There are costs in terms of both time and money, and risks associated with both winning and losing. Personal and work life may suffer and action will be needed to reduce the impact on both. A person making a claim in a civil court or tribunal in respect of discrimination, for example, will need to consider whether there will be any publicity and what the implications might be.

In many cases, people undertaking strategic litigation need support to access and understand information about their case and with making important decisions about how to proceed. They may also be concerned about their security and need help to think through how to stay safe. For some, exposure in the courtroom or in the media may be a big concern, where for others, the concern is to say the 'right' thing to the media. In addition, almost all of those without legal training that enter a court fear being confounded by legal terms (see 2.1.4 which aims to help demystify legal language).

Support may also be needed with things as simple as dealing with childcare or travel. These simple things can often make the difference between a person being able to enter a court or not. The important thing is not to assume that people will respond in a particular way and to ensure that they have, reliable, supportive people to talk to.

Example: Russia 'kiss-in'

One of the more extreme ways to engage in strategic litigation is to deliberately and publicly disobey the law in order to be arrested and go to court. Social movements throughout history have employed this tactic. One recent example is the 'kiss in' demonstrations staged by gay and lesbian protestors in Russia to raise awareness of their objections to the law on homosexuality.

Example: Cameroon lawyer Alice N'kom
Legal representatives involved in strategic litigation can be at risk. In Cameroon, lawyer Alice N'kom (image) who defended lesbians and gay men was threatened with disbarrment by the Minister of Justice in Cameroon who claimed she is 'promoting homosexuality' in a country where homosexuality is illegal. Her colleague Michel Togue has also been the victim of threats to himself and his family.

Sex Work Laws struck down as unconstitutional: The Case of Canada

With support from the Pivot Legal Society, three Canadian sex workers, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott initiated a constitutional challenge in 2007 that resulted in the Supreme of Canada striking down three provisions of the Criminal Code because they violate sex workers' constitution right to security of the person. The court found that laws prohibiting brothels, street soliciting and living off the avails of prostitution were “disproportionate” and created a dangerous environment for those working in the industry. It stressed that the ruling was not about the question of whether prostitution should be legal, but rather whether sex workers constitutional rights are infringed by bans on their trade.

Source: THE CANADIAN PRESS/Adrian Wyld

Read a synopsis of the case by Pivot Legal Society

 

Click here to read our Inside Story - Demystifying Lawyers: Advice for Activists by Adrian Jjuko

By Adrian Jjuuko

I regard myself first as an activist before regarding myself as a lawyer. This is despite my qualifications in law which include a LLM degree, the Bar Course and an LLB. I am also very much aware that many other people would describe me only as a lawyer, and may not regard me as an activist at all. The reason why I self-identify this way is because for the past five years, I have dedicated my life to the realisation of the rights of LGBTI persons in Uganda and I have perhaps done more ‘activist’ work than strictly legal work during this period of time. I have filed a petition challenging the constitutionality of a law that discriminates against marginalised groups in Uganda, not as the lawyer but rather as the petitioner; I founded the only legal aid clinic dedicated to providing services to LGBTI persons in Uganda (though I perhaps do more of coordinating its work than doing the actual representation); I coordinated the Civil Society efforts to oppose the Anti Homosexuality Bill 2009 in Uganda which saw the Civil Society Coalition on Human Rights and Constitutional Law win the US State Department’s Human Rights Defenders Award 2011; and I have appeared before parliament to testify against the Bill, as well as speak out in the media. Therefore, though I am lawyer by profession, I rarely go to court, although admittedly, I approach issues as a lawyer would - what are the facts, what is the applicable law, what is the remedy, and how do we get it.

There seems to be tensions between lawyers and activists. Activists usually want immediate action that bares immediate results and sometimes may resort to unlawful means to do that. Lawyers on the other hand, tend to stick to procedure and the law and like to strategise for every move they make. For this reason, activists usually disagree with lawyers on how to move forward and this is what causes the apparent tensions. However, since the law is a key factor in achieving equal rights and social justice, and lawyers are schooled in the law, they play an important part in the process.

Activists should note the following issues when dealing with lawyers:

1. Lawyers practice law as a profession: The first thing is that perhaps unlike activists, lawyers usually practice law as a profession and not as a personal belief or conviction. As such, they expect to be paid for their services. A lawyer charging for the services offered should not be taken as being out of place. In fact, it is working free of charge that is out of place and in some jurisdictions it is even regarded as professional misconduct to do so. Because lawyers are professionals, they should be able to conduct the clients cases professionally. Doing otherwise will be regarded as professional misconduct, and may lead to their being disciplined.

2. It is the client’s case and not the lawyers’ case: Sometimes clients find it odd that their lawyers can talk to the opposite party’s lawyers. This is, however, not odd for lawyers as they are trained to treat the case as the client’s case and not their case, so as to avoid getting emotionally entangled. Pure activists on the other hand, are driven by a deep conviction about an issue. As such, the level of enthusiasm expected of the two groups is not exactly the same. Expecting lawyers to feel the same level or depth of disappointment at the loss of a case as the client/activist, therefore, is unfair.

3. Lawyers cannot do more than the law provides for: It is common for clients to assume that lawyers can solve all problems. Though lawyers may present such a picture, in reality they cannot do more than what the law allows in a system where the rule of law prevails. As such, if a case is indefensible in law, it is likely to be lost, however much the lawyer tries. It is important therefore, that activists do not expect lawyers to have a magic wand but recognise that they opperate within the constraints of the law.

4. Lawyers have ethical codes that they follow: Whereas activists may want to solve a case by any means, including unlawful means, lawyers are bound by ethical and professional codes to uphold the law. This of course is not followed by all lawyers, but there are many things an upright lawyer will not do, even if that means they will lose the case. The legal profession is closely regulated and lawyers are regarded as officers of the court whose first duty is to the law.

5. Lawyers are trained to analyse situations and get the best remedy: Lawyers in most cases, are hesitant to undertake immediate action. They are likely to require more evidence, are sticklers for detail and will always demand as much information as they can get. This can be quite annoying for the client/activist. However, all this is because they are trained to evaluate the facts, apply the law to the facts, and advise on the best remedy for the client. Though cases can be won or lost, they are not wagers and a lot of research, and deliberate calculations, must be involved.

6. Lawyers should be availed with all facts: Another mistake that clients/activists do is to leave out some information when instructing lawyers. When information is left out or withheld, the lawyer will make his/her analysis on a wrong premise which could mean they lose the case. It is very important for activists to tell lawyers all they know so that lawyers can formulate their own opinions and make the best judgement about how to proceed.

7. What is right is not necessarily right in law: Many activists think that because a right is provided for in the Constitution or in the law, it automatically applies to them. The law operates quite differently and only what is right under the law, is what is right. It is important to remember that it is courts who usually have the final decision on what is right and not the lawyer or the client.

Conclusion

Activists usually want justice now and lawyers usually require them to bide their time and may even act disinterested in the case. This causes tensions between the two groups. However, if activists understood why lawyers act the way they do they may be more willing to listen to the lawyers and work with them. After all, both groups are seeking the same thing. The lawyers are a necessary evil in this world of legalised human rights and activists need to learn to work with them despite the seemingly irreconcilable approaches of the two groups.

Considering Strategic Litigation? What you can do

If you are considering any form of litigation there are a number of important questions you will first need to address:

  • What are the risks?
  • What kind of support will be needed?
  • Are the risks different for the legal representative?
  • What will winning or losing mean?
  • Will losing cost more?
  • What aspects of work or personal life could be affected?
  • Which aspects of the process will be most difficult and how can the impact be minimised?

The International Gay and Lesbian Association in Europe uses strategic litigation in the European Court of Human Rights (Council of Europe) and the Court of Justice of the European Union. Because judgments in these cases set human rights standards which apply to all member states successful cases on sexual orientation and gender identity they can make a significant contribution to the achievement of equal rights for LGBTI persons across Europe. For more resources on strategic litigation and links to relevant websites see http://www.ilga-europe.org/home/how_we_work/litigation