The significance of strategic human rights litigation in Uganda

Human rights litigation is also interchangeably called; strategic interest litigation, public litigation, impact litigation or public interest litigation; all names meaning the same idea.

Litigation means taking cases to court. Interights (an organization referred to as an international centre for the legal protection of human rights) define strategic human rights litigation as taking or defending legal proceedings in a court or tribunal where the primary aim is not to promote the interests of a particular person or organisation who might be a formal party to the case, but to obtain a judgment which promotes or protects the human rights of a wider group of people.

This often involves initiating appeals to higher courts and submitting applications to international bodies, seeking rulings that establish a new principle or right that, hopefully, resonates with courts in other countries and jurisdictions.

According to the Governance and Public Policy Research Centre, strategic human rights litigation, also referred to as Strategic Interest Litigation (SIL), is often mixed up with class action. A class action is a civil court procedure under which one party, or a group of parties, may sue as representatives of a larger class.

Strategic or impact litigation, on the other hand, uses the court system to attempt to create broad social change. Impact lawsuits aim to use the law to create lasting effects beyond the individual case. The chief focus is law or public reform rather than the individual client’s interest (as is the case in ordinary litigation) although they may both have this objective.

It can therefore be summarised that SIL aims at creating legal and social change. In contrast, this is quite different from traditional lawyering, which focuses on the client and his/her interests. The value of using SIL in countries like Uganda, where there is legal and social injustice, is invaluable.

SIL does have the potential, if used right, to bring about greater legal and social change. Disadvantaged groups can have their rights protected, respected and fulfilled leading to enhanced legal empowerment.

Strategic human rights litigation is a method that can bring about significant changes in the law, practice or public awareness via taking carefully-selected cases to court. The clients involved in strategic litigation have been victims of human rights abuses that are suffered by many other people. In this way, the litigation focuses on an individual case in order to bring about social change.

The strategy of using public litigation works on the conviction that a well-publicised legal case, notably the ‘saving Mabira rainforest’ (Nambewo Catherine, 2013), can draw attention to a problem, and accordingly leads to legal reforms or fairer enforcement of the laws protecting people’s rights and freedoms.

The example of the campaigns to abolish the death penalty in Uganda by the Foundation for Human Rights Initiative (FHRI) is also illustrative.

Uganda has a robust institutional and legal judicial structure through which strategic human rights litigation can be pursued. Interested person(s) have been making use of the available court system, like the High Court, Constitutional Court (Court of Appeal) and Supreme Court.

In addition, as Ugandans, we have a solid legal framework providing legal pathways for strategic human rights litigation. The Environmental Action Network in Uganda noted in their presentation, “Public Interest Litigation in Uganda, Practice and Procedure” at the Judicial Symposium on Environmental Law, that the bedrock of public interest litigation lies in Article 50(2) of the Constitution of Uganda.

It provides: “Any person or organisation may bring an action against the violation of another person’s or group’s human rights.”

As a believer, another enabling law for strategic human rights litigation is written in the Bible. It states: “Defend the poor and the fatherless. Do justice to the poor and afflicted and needy. Deliver the poor and needy. Free them from the hand of the wicked,” Psalms 82: 3-4

The significance of human rights protection and promotion is explained as follows:

● Create progressive jurisprudence which advances human rights

Strategic human rights litigation in Uganda has enabled the advancement of the study, knowledge or science of Law (or advancement in jurisprudence). For example, an antigay law passed in early 2015 in Uganda, despite the protests of activists and scientists, has been nullified by the nation’s constitutional courts, which ruled that the legislation had been improperly approved by the country’s Parliament.

Uganda’s President, His Excellency Yoweri Kaguta Museveni, had justified the law by citing findings from a special scientific committee on homosexuality convened by the government, even though, as Science reported in February, researchers on that panel said their work was being misrepresented, and several resigned in protest.

The success of same sex activists in nullifying the antigay law is a clear example of progressive jurisprudence in advancing human rights of all in Uganda.

● Instigate reform of national laws which do not comply with international human rights law

Strategic human rights litigation results in the initiation of reforms in the national laws of Uganda, particularly the laws that do not comply with international standards.

A case in point is public interest litigation on the abolition of the death penalty by the Foundation for Human Rights Initiative (FHRI). This strategic human rights litigation and the subsequent ongoing campaigns are gradually leading the government of Uganda to abolish the practice of exterminating convicted inmates on death row.

Although there is still no law abolishing the death penalty in Uganda, the government has not punished any inmate by death in the last decade. This practice is leaning towards having a reform in the laws of the land to uphold individuals’ right to life as stipulated in Article 3 of the Universal Declaration of Human Rights, 1948.

● Ensures that laws are interpreted and enforced properly

Strategic human rights litigation ensures that laws are interpreted and enforced correctly. According to the International Humanist and Ethical Union (IHEU), a look at the findings presented by Uganda’s team of scientists and the interpretation made by the President reveals more gaps in what informed the signing of the famous Anti Homosexuality bill into law.

Whereas the scientists wrote “Sexuality is determined by biology (anatomy, physiology, biochemistry) and how one relates to others which is a function of psychology, sociology, and the culture in which one lives”.

And they further wrote: “Ultimately, these functions are determined by genes and their interactions with the environment.” In contradiction, our President, using the same ‘scientific document’ said: “Their (the team of scientists) unanimous conclusion was that homosexuality, contrary to my earlier thinking, was behavioural and not genetic.”

Using the same ‘scientific findings’, the question is, is homosexuality a result of genetic formation or is it behavioural as our President concludes? Didn’t our President make the wrong interpretation of the document or did the scientists deduce a wrong conclusion? I am afraid my President might have got the science wrong!

How then will the public get to know about homosexuality especially now that the findings of the President’s team of scientists revealed several gaps that can only be challenged through further research and publication?

Research made by well-grounded scientists and done over several decades reveals rather consistently that homosexuality is genetic. Gay people are not generally pedophiles, homosexuality is not a disease.

It is therefore worth noting that the government of Uganda’s fear of repeating the mistake of misinterpreting and wrongly and unfairly enforcing the anti-gay laws is a result of immense strategic human rights litigation within and outside Uganda.

● Aids in documenting human rights violations by the judiciary and other law enforcement agencies

Strategic human rights litigation in Uganda has enabled individuals and institutions to document human rights violations in Uganda. For example, the Foundation for Human Rights Initiative FHRI litigated on the perpetual case detaining suspects beyond the stipulated 48 hours before presenting them (the suspects) to courts.

The judiciary has also been petitioned on case backlogs and the prisons authorities petitioned for keeping juvenile suspects/offenders in same cells with adult offenders/suspects. All these violations by state agencies are always being published in Uganda Human Rights Annual and special reports for redress.

● Enable individuals to seek remedies for human rights violations

Strategic human rights litigation has enabled aggrieved individuals to seek redress, especially in cases of human rights violations against them. Notably, a legal redress in 2013 halted the eviction of residents around the Mabira rainforest catchment area by sugar cane investors –Sugar Corporation of Uganda Limited (SCOUL).

Strategic human rights litigation empowers people who have been victims of human rights abuses. Many of the victims of human rights violations get to receive awareness-raising opportunities on the fundamental rights by litigators; many of them get to receive both legal and paralegal advice.

Conclusion

In Uganda, there is no doubt that legal and social injustice exists. The weak and vulnerable in society are daily confronted by an alien, opaque and expensive justice system.

Their human rights are not protected, respected or fulfilled. Strategic human rights litigation therefore is one legal pathway that can be used to rebalance the legal and social order in their favour.