In small groups, participants can discuss the statement and identify
salient points. That discussion should be followed by a presentation
summarizing the module. In addition, the experience of any local groups
in using domestic courts could be shared and discussed.
A vast majority of the world’s populations, particularly the poor,
are invariably denied access to effective remedy or even the opportunity
to ventilate their grievances. While it is recognized that the courts
may not be the only or, for that matter, the most effective theatre
for the resolution of disputes or issues of human rights abuses, the
legalistic nature of the entire human rights fabric makes the courts
an important element in the enforcement machinery. Several regional
and international treaty monitoring bodies even prescribe the "exhaustion
of local remedies” as a precondition for admissibility of complaints
or communications. Affording individuals, groups and communities effective
access to available legal or judicial fora is therefore just as important
as guaranteeing their basic rights.
Litigation may be used to clearly define and frame issues of concern
to the community and become a rallying point for collective action
such that even when the verdict is unfavorable, the consensus and energy
already developed can be channeled to other forms of popular expression.
In authoritarian or transitional societies, litigation can be an important
means of building broad support and participation in otherwise sensitive
claims. Under the cloak of judicial protection, information dissemination,
networking and media publicity may be safely undertaken.
One critical element in any effective strategy in the promotion and
protection of ESC rights is the active involvement of the affected persons,
groups or communities in the development and implementation of that
strategy. In the defense of economic, social and cultural rights, litigation
must be seen as more than simply a means to obtaining a court judgement,
but as a powerful vehicle for educating and mobilizing affected individuals,
groups or communities around issues of concern to them and helping to
demystify the judicial process.
To be effective, litigation must be undertaken as part of a broader
strategy of human rights education and community action carried out
through existing local networks or where none exists, assisting to build
critical links among members on the platform of their shared interests
or concerns. The affected group or community must see regular attendance
at court proceedings as an important part of the struggle for justice.
Issues at stake in the case and highlights of hearings must be explained
as simply as possible and in the appropriate language. The larger community
should also be kept abreast of important developments through their
representatives or other informal channels.
This approach has proved very successful in the experience of the Social
and Economic Rights Action Center (SERAC) in its work with local groups
and communities in Nigeria on issues relating to housing, education,
health and labor. SERAC’s Legal Action Program (LAP) is operated as
an integral part of its Community Action Program (CAP) designed to
work with and within local groups and communities to educate and mobilize
them to become active participants in the defense and advancement of
their rights. For example, under its Maroko Support Project, SERAC
is championing demands for the full resettlement of the 300,000 people
forcibly evicted from their homes when Maroko, formerly Nigeria’s largest
slum community, was demolished by the military government on July 15,
1990 without compensating or resettling over 97% of evicted families.
Although years of fruitless wait for redress had waned the community’s
struggle, hope was rekindled and faith restored among the Maroko people
through sustained education, training, legal counseling, litigation,
empowerment and mobilization.
In this context, SERAC’s litigation activities seek to further legitimize
and consolidate the community’s demands for resettlement. The Maroko
line of cases is constructed to sharpen the focus and galvanize support
on particular aspects of economic, social and cultural rights. For example,
in Farouk Atanda vs. The Government of Lagos State & 4 Others,
SERAC is asking the court to determine whether the housing provided
as resettlement to less than three percent of evicted families is adequate
and habitable as required by applicable human rights standards. Secondly,
in Akilla vs. Lagos State Government and Others, SERAC is challenging
the denial of the right to primary education to over 9000 pupils of
the eleven Maroko schools demolished alongside the community. The suit
seeks to compel the Lagos State Government to institute a remedial educational
program to address the needs of the displaced students. It hinges
on the government’s obligation to provide free and compulsory primary
education as guaranteed under the International Covenant on Economic,
Social and Cultural Rights, the African Charter on Human and Peoples’
Rights, and other human rights instruments ratified by Nigeria. The
bottom line is that these and other cases have come to represent a crucial
part of the community’s resolve to carry on their struggle until they
overcome. This is expressed in part by their regular attendance of
the proceedings in huge numbers, a trend which sends clear signals of
their determination to judicial authorities.
Securing and sustaining people’s attention and participation in the
litigation process, however, requires patience, devotion, flexibility
and creativity on the part of the human rights worker or organization.
Appropriate training of human rights staff is necessary in order to
equip them with the requisite skills and capacity to meet the challenges
of economic, social and cultural rights advocacy. Litigation can be
effective especially when it results in an important verdict. It can
also truly motivate and empower those on whose behalf we litigate no
matter what the outcome may be.