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Public interest litigation in West Africa (2)

By Femi Falana

In justifying its stand the Court acknowledged the struggles of oppressed peoples in many parts of the world, including South Africa. According to Hayfron Benjamini JSC: “In rendering this opinion therefore we must take into serious consideration the struggles, exploits and demands of oppressed and struggling people in Africa, America and elsewhere led by such men as Nelson Mandele and Dr. Martin Luther King, Jnr., in their fight for fundamental human and civil rights.

Judging by the frequency with which the African National Congress and other political parties hold rallies and demonstrations in South Africa, the police would be very hard put to, if they were to issue a permit for any such rally or demonstration to be held. I do not believe a permit is required in that country to enable any person or group of persons to assembly, process or demonstrate. We cannot wish for these others, anything more that we wish for ourselves”.

In the Nigerian case of Inspector_General of Police v. All Nigerian Peoples Party (2008) 12 WRN 122 I had urged the Court of Appeal to declare the Public Order Act illegal by relying on  the case of New Patriotic Party v. Inspector-General of Police, Accra (supra) and similar decisions.

In accepting my submissions Adekeye JCA (as she then was) held inter alia: “A rally or placard carrying demonstration has become a form of expression of vies on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of governance in civilized countries. It will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.”

In the struggle against military dictatorship in West Africa, and for social justice and human rights, public interest litigation has played an indisputably important role. Yet over years some commentators have challenged the capacity of public interest litigation to secure systemic change.

The arguments have varied, but have centered on two basic claims. The first is that litigation cannot itself reform social institutions. The second related concern is that over-reliance on courts diverts effort from potentially more productive political strategies and disempowers the groups that lawyers are seeking to assist. The result is too much law and too little justice.

These arguments, although powerful in their analysis of the limits of litigation, have generally failed to adequately acknowledge its contributions and the complex ways in which legal proceedings can support political mobilization.

Against the examples of lawyer domination, there are competing accounts of client empowerment and community-directed lawsuits. Litigation is a key strategy for protecting the rights and enlarging the power of vulnerable groups, particularly when other channels of influence are unavailable. Groups hobbled by discrimination or collective action problems may turn to courts as allies in the struggle for social justice.

But litigation must not divert attention from mobilization to tackle political and social problems.  Litigation should be used as a complementary strategy with collective political struggle to challenge structural inequality and injustice and abuse of human rights. Litigation is a political tool that, when used strategically, can stimulate meaningful change and complement other political efforts; whether litigation “works” or not must be judged in relation to available alternatives; and in order to evaluate the social change potential of litigation in a given circumstance, it is necessary to examine the conditions-political, economic, cultural, and organizational-within which a lawsuit operates.

When combined with inclusive political processes, litigation can be put to pragmatic ends. For example, when deployed strategically, lawsuits can destabilize entrenched institutional structures and subject them to greater accountability. A lawsuit that receives widespread attention may raise public consciousness and stimulate movement activity by revealing the vulnerability of structural arrangements that once seemed impervious to change.

Even lawsuits unsuccessful in the courts may generate public outrage that spurs political action. From this perspective, judicial decisions are not simply legal decrees, but also social signals that are channeled into collective movements. Similarly, legal action may allow activists to leverage gains by putting specific issues on the public agenda and threatening to impose litigation costs if decision makers fail to find political solutions. So too, political mobilization can create the ongoing citizen engagement that is crucial to sustain, consolidate, and build on victories.

Focusing on the potential contributions of litigation-not just its limits-invites consideration of some of the factors that shape effective litigation strategies. Some of these factors include the following: “ Proper organisations of clients; “Overall long-term strategy; “Co-ordination and information sharing; “ Timing; “ Research; “ Characterisation; and “Follow-up.

Separating the Chambers of the Attorney-General from the Ministry of Justice.
Realizing the conflict of interest between the Attorney-General and the Minister of Justice 10 out of the 15 Member States of the ECOWAS have separated the Chamber of the Attorney-General or Procure General from the office of the Justice Minister. Another member state is in the process of separating the two offices. It is hoped that the remaining four countries will follow suit so that the Attorney-General can defend public interests as opposed to the partisan interests of the government.

As a professional lawyer the Attorney-General is in charge of public prosecution. Unlike the Justice Minister who is a cabinet member the Attorney-General is independent of any of the branches of the Government. As a defender of public interests the AG is required to prosecute every criminal offences in which prima facie case can be established against a suspect no matter whose ox or gored.

The Challenges and Prospects of Public Interest Litigation
The central challenge for contemporary public interest organizations involves not formulating strategies, but developing the funding and policy leverage to implement them. Virtually all organizations report major difficulties in meeting their financial needs.

Some confront equally daunting obstacles in mobilizing the other sources of influence that is critical. Most of these challenges are by no means insurmountable. Law schools, continuing education programs, bar organizations, and non-profit groups could all do more to equip public interest lawyers with managerial and strategic evaluation skills.

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