Strategic litigation: A tool for domesticating the Protocol?

The effectiveness of the law as a tool for realizing women’s rights has been, by some, called into question. Because of Africa’s complicated history with inequality between men and women, and the feminisation of poverty, using judicial institutions in order to apply rights on paper into realizable rights is contentious. Sibongile Ndashe asks: What can be done differently to make governments accountable in terms of this protocol in a manner that makes a different to women’s lives? She argues that litigation does play a role in the domestication of the Protocol, but that it can be used amongst other tools.

Strategic litigation (also known as test case litigation, public interest litigation, impact litigation or precedent setting litigation) is used to challenge laws that are in violation of human rights standards and norms, and can be useful because in the event that a case is won against a discriminatory law, that law or policy may be declared invalid. This means that at the same time as successfully winning a case, broader law reform can be made. Litigation has not been widely used in the fight for women’s rights, as it marks a radical departure from traditional methods of legal practice and is indeed, a large task for gender activists, as it involves working not only on women’s rights, but on the building of courts.

Currently there are a number of ways that constitutions have permitted laws to act against women: the claw back clause exempts certain laws from being subject to the right to non-discrimination provided for by the constitution; the provision of rights to be equally applicable can sometimes be turned over in the event of a tension, in favor of the strongest right, and finally; some constitutions pre-empt inconsistency and therefore give preference to some rights over others. In addition, in some cases, in what is known as legal dualism, it is impossible to use international instruments if they have not yet been domesticated, but have been ratified, by that particular country. The Bangalore Principles come into use here – if an uncertainty, ambiguity or obscurity arises in a case, a judge may seek guidance in the general principles of international law, or those accepted by the community of nations.

Strategic litigation can be a powerful tool, but key to its use in the case of the Protocol is a women’s rights responsive judiciary – one who understands women’s inequality in all of its complexities. In addition, a strict separation of the governmental powers of judiciary, legislature and executive is important, in order that each area may fulfill their constitutional obligations. It is necessary not only to engage government, including state departments, but in order to be truly successful litigation must also reach out to research institutions, community based organizations and feminist scholars.

In her conclusion, Ndashe argues that the implementation of the Protocol through strategic litigation depends on various parties, not simply lawyers. There is a need to co-ordinate efforts so that the many complex and varied aspects of women’s rights are represented.

* This is a summarised version of a paper presented at a conference on the Ratification and Domestication of The African Union Protocol to the African Charter on Human and Peoples Rights on Rights of Women in Africa. The conference, held between 27-30 September in Addis Ababa, Ethiopia, was co-convened by the African Union Commission and the Solidarity for African Women’s Rights Coalition (SOAWR). The full length versions of all papers presented at the conference will be released in book form in January 2006.

* Summarized by Karoline Kemp, Commonwealth of Learning Young Professionals Intern, Fahamu

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