Litigation can be used as a tool or strategy for national level advocacy. NGOs can use PIL as a tool for remedy. Strategic Public Interest Litigation is the best tool to use when the change desired will have a wider impact in a country.
PIL is also suitable where the issue under focus is unpopular or there are strong opposing interests.
Factors to consider before engaging in Strategic Public Interest Litigation
- Is there a clear violation of economic, social and cultural right?
- Can the issue be adjudicated in court?
- Will it be possible to sustain support that is human and financial for the duration of the case?
- If successful, will the outcome of the case have widespread effects on the right at issue?
Critical factors in determining a strong case for strategic Litigation
- Will successful litigation of the case encourage social change and legal reform?
- Can you link the individual or group case to a more systemic/collective remedy?
- How political is the particular issue in the case in both domestic and international context?
- Is there international capacity to litigate the case or will you need external support?
- Can you link with allies and other stakeholders to strengthen support for the case?
- Can a positive decision in the case be effectively monitored and implemented?
NGOs should develop a case selection criteria. However, it is important to remember that litigation is a long and expensive process.
Read More: Civil Society and Media in East Africa: Forging a Collaborative Response
Below is a list of key issues that you should consider when engaging in strategic interest litigation process:
- Is litigation the right strategy?
- Assess the impact of a potential case
- Use strategies to ensure you build strategic actors or coalitions
- Mobilize resources to finance the case- Find out whether the losing party will cover legal fees of both parties. It is important to mobilize resources to support PIL cases at the national level. At the international treaty bodies legal costs may not be a barrier because there are no filling fees for communication and evidence among others;
- At the international arena NGOs are often available to submit amicus curie briefs to support the case on some of the issues;
- Litigation at the regional and international levels.
References
ESC-Net et al (2013). Claiming Women’s Economic, Social and Cultural Rights.
Center for Reproductive Rights, www.reproductiverights.org
