Strategic Litigation of Women's Human Rights in Africa

Report of meeting: 20-22 October, Mombasa, Kenya

Promoting and Protecting the Human Rights of Women in Africa

Within our equality programme INTERIGHTS seeks to litigate and build capacity on the human rights of women. Despite considerable activism in this area there has very little in the way of litigation or legal advocacy. As a result there is a dearth of international jurisprudence. Working closely with partners, INTERIGHTS has been at the forefront of legal protection of women’s human rights in Africa. We pursue litigation and capacity development activities across sub-Saharan African which will increase access to justice and substantive equality for marginalised people, building a base of international case law to promote and protect their rights. Our aim is to bring cases both at a regional level, through the African Charter on Human and Peoples’ Rights (African Charter), and before domestic courts by reference to the Protocol to the African Charter on the Rights of Women in Africa. We seek to shape and strengthen legal standards through the development of positive jurisprudence which can then be applied for the benefit of victims in other cases, before the same court, or before other courts, creating a multiplier effect.

In seeking to address widespread violations, INTERIGHTS has been at the forefront of recent litigation of women’s human rights in Africa. Together with partners we have submitted the first cases on women’s human rights to the African Commission on Human and Peoples’ Rights (African Commission) – Al Kheir v Egypt concerning gender based violence during a political demonstration; and Echaria v Kenya concerning women’s property rights at divorce.

A strategic priority of our work relates to the development of jurisprudence concerning the positive obligations of states to protect women from violence including rape, marital rape, corroboration of evidence in sexual offences, domestic abuse and traditional practices. A number of countries in the region still do not criminalise marital rape or retain the rule that requires evidence of a complainant in a sexual offence case to be corroborated if it is to be accepted by a court. Despite the enactment of domestic violence legislation in a number of African countries in the past decade, enforcement of these laws remains very poor. We also focus on equal property rights including inheritance rights and property following divorce, and discrimination of women with HIV / AIDS.

In April 2008 we organised an advisory meeting of experts on women’s human rights in Africa in order to consolidate our litigation strategy in this area. The meeting considered priority issues affecting women; focusing on country and region-specific challenges and opportunities. A key recommendation which emerged from the discussion was the need to develop capacity amongst regional lawyers to pursue strategic litigation as a tool for social change. Many lawyers working on women’s human rights in Africa are unable to focus solely on strategic litigation. This is exacerbated by the lack of training available on how to frame cases as human rights violations. Informed by the recommendations drawn, INTERIGHTS has pursued a subsequent programme of capacity development activities and technical legal assistance for lawyers/NGOs to pursue strategic litigation.

In May 2009 we held our first litigation surgery on women’s human rights, attended by 13 lawyers from eight different African countries. The surgery was extremely successful – we are currently providing technical legal assistance to a number of participants litigating women’s human rights cases before domestic courts and through the meeting were able to identify a case which was subsequently referred to the African Commission.

Litigation Surgery: Litigating Women’s Human Rights in Africa

Following the success of our meeting in 2009, INTERIGHTS organised a further litigation surgery on the human rights of women in Africa from 20 – 22 October 2010. The meeting – held in Mombasa, Kenya – brought together eleven lawyers from Kenya, Nigeria, Uganda, Malawi, Rwanda, Zimbabwe and South Africa to identify and provide substantive support to cases involving violations of women’s rights that could be pursued before domestic or international fora.

Participants
Participants were sought from amongst lawyers engaged in private practice or affiliated to an NGO who not only have a demonstrated interest and/or knowledge of litigating women’s human rights but were committed to developing their understanding of international and regional human rights law. A selective call for applicants was released several months prior to the surgery. Potential participants were invited to submit at least one case they are litigating or intend to litigate for presentation and discussion during the surgery. This process ensured that only the most relevant and strategically significant cases were selected. Following telephone interviews with shortlisted candidates, eleven lawyers were selected.

The meeting was led by INTERIGHTS’ Equality and Africa programme lawyers, Sibongile Ndashe and Solomon Sacco, who contributed their expertise and experience not only of women’s human rights issues but also litigating at the domestic, regional and international level in Africa. An international expert from the International Commission of Jurists in Geneva was also invited to moderate several of the sessions. In this way, we hope to encourage international actors to understand the practical challenges of litigating women’s human rights in Africa.

Content of the surgery
The first day of the surgery included a number of introductory plenary sessions designed to strengthen understanding of the opportunities and challenges for strategic litigation of women’s human rights. Issues addressed included how to frame cases as human rights violations, the nature of strategic case work, and procedural aspects of litigation before the African Commission.

The second and third days of the surgery were dedicated to the case studies presented for discussion by the participants. INTERIGHTS lawyers led group discussions around a range of priority issues affecting women across Africa, advising on relevant international and comparative legal standards, and possible litigation strategies specific to each case. The issues addressed included:

Discrimination based on HIV/AIDS including mandatory testing and the criminalisation of infection
Violence against women including state sponsored violence
Human trafficking
Women’s property rights (particularly property rights following divorce)
Employment discrimination
Reproductive rights and forced sterilisation

Feedback and Evaluation
Each of the participants was asked to complete an evaluation form in order to determine whether the surgery had met their expectations and the potential benefit they saw to their future legal work. Ten participants chose to respond and their feedback was subsequently analysed.

Participants were asked to detail their expectations of the surgery. The majority felt it was an opportunity to obtain guidance on formulating human rights arguments, learn about relevant international standards, and share experiences with peers in order to form a network of like-minded lawyers. All of the participants felt the surgery had met their expectations – in fact 60% noted that both the content and format exceeded their expectations. Half of the participants found the content and format of the surgery ‘extremely useful’, whilst the remaining 50% found it ‘useful’ to their legal work.

‘It has given me skills and knowledge that will assist me in determining which cases to take for public interest litigation and how to frame and argue the submissions from a human rights perspective. I have also learnt a lot from the experiences of the other participants.’

The participants appreciated the opportunity for group discussion and detailed legal analysis of their cases. 70% found the case presentations and subsequent discussions the most interesting and useful part of the surgery, noting that not only did it provide substantive support for their own case work but more generally developed their understanding of how to argue international and comparative law, and frame cases as human rights violations. The scope of the issues addressed also exposed several participants to issues they had not previously explored within their own legal work, particularly in relation to human trafficking. The other 30% found the plenary sessions and legal materials provided the most useful part of the surgery, noting the potential for long-term impact upon their case work.

Each of the participants surveyed felt the surgery would have a positive impact upon their current and future legal work. Participants were asked to detail any specific benefits. Responses included:

Increased knowledge of international and comparative human rights law
Strengthened ability to frame and argue submissions from a human rights perspective
Skills to pursue public interest litigation and a strategic approach to case selection and preparation
Knowledge of how to take cases at the domestic and regional level with a human rights angle
An appreciation of the value of subjecting cases to detailed legal analysis and group discussion – one of the participants noted that they would consider applying this to their own organisation

‘The meeting has offered me access to knowledge of international human rights practice which I may not have had in my organisation. It will help me plan and select the cases within my organisation and litigation support programmes.’

Participants were interested in receiving ongoing support from INTERIGHTS in drafting applications and developing litigation strategies, as well as further meetings on developing legal issues. The participants were also keen to maintain the contacts developed in order to encourage peer review and support. Several suggested establishing a mailing group to exchange updates on cases and new legal developments. We have since encouraged all participants to join our list-serv for lawyers working on women’s human rights in Africa. The list-serv enables members to ask questions and obtain legal advice from INTERIGHTS staff, their peers and other expert members.

Ongoing Work and Future Activities

Litigating women’s human rights cases in Africa presents significant difficulties in terms of both sourcing and litigating cases. INTERIGHTS’ programme of litigation surgeries have proven an extremely successful way of not only strengthening capacity amongst regional lawyers but also developing successful partnerships and identifying cases which would benefit from our support. For example, we are advising an Advocate from the Women’s Legal Aid Centre, Tanzania, in a case brought to our first women’s human rights litigation surgery, which seeks to challenge a customary law in Tanzania which excludes women from inheritance of their deceased spouses. We are currently providing legal advice in advance of an imminent hearing in the case before the Court of Appeal in Tanzania.

INTERIGHTS has developed a significant partnership with FIDA-Kenya. Representatives from FIDA-Kenya participated in both litigation surgeries, and we are acting as co-representatives before the African Commission in Echaria v Kenya, concerning women’s property rights at divorce. There is currently no legislation governing matrimonial property in Kenya. This case therefore seeks not only to build jurisprudence in regards to women and matrimonial property rights but to challenge the discriminative precedent set by the domestic judgment in Echaria v Echaria. INTERIGHTS became involved in the case following FIDA-Kenya’s participation in our first litigation surgery, and it was subsequently presented during our October 2010 meeting. Our lawyers also recently conducted a two day litigation workshop for FIDA-Kenya staff to inform an organisational strategy on strategic litigation. In addition to detailed analysis of ongoing case work the workshop identified opportunities under the 2010 Constitution of Kenya. The new constitution, with its expanded Bill of Rights, support for public interest litigation and requirement for courts to refer to standards combined in international human rights treaties ratified by Kenya, provides an excellent platform for new constitutional challenges.

INTERIGHTS Equality lawyer, Sibongile Ndashe also recently participated in an expert-level meeting on remedies related to cases of human trafficking, organised as part of the mandate of the UN Special Rapporteur on Torture. Sibongile presented on the issue of restitution in regards legal strategy and implementation.