Possible Strategy: Building a Case
Possible strategies: considering litigation and building a case
©Jenny Matthews/ ActionAid
Taking a case to court should always be the last resort, for claimants as well as a strategy for campaigning. It takes time, money and energy, and there is a lot at stake – not least that you might not win!
Any prior analysis should therefore take into account the risks (and opportunities). These may involve: personal safety for claimants, campaigners, lawyers etc; legal status during and after; financial costs; reputational, especially for the campaigning organisations; operational, again this refers more to campaigners and lawyers; relational, vis-à-vis the government, civil society, schools/teachers/local administration, or the international community; fatigue is a real danger, but on the other hand a campaign build around a litigation process may also inspire greatly; political gains and losses must be considered; unpredictability is a major factor when planning; time may be long, even too long, both for campaigners but most importantly for the affected victims of violations. There are many more risks and opportunities and these must be thought through by claimants, campaigners and lawyers.
It is also necessary to keep in mind the many other avenues which campaigners and lawyers may chose instead, using the law in different ways. These may be to: provide evidence in existing cases; be ‘friends of the courts’; work with human rights groups; empower local public interest lawyers; link up with lawyers’ associations or networks; conduct advocacy for legislative/praxis change with the law in hand; push for judicial review etc.
If, however, one decides to go for some kind of litigation, it is highly recommended to do this with clearly stated aims in mind. Apart from seeking justice for individuals or groups whose rights have been violated, campaigning organisations or lawyers should view litigation as a campaigning tool: to raise awareness; put pressure on government; to test the system; to create precedent (common law).
Secondly, it is important to involve others: using media, awareness raise local community; challenge/assist local government; work with local schools; challenge prejudice in society vis-à-vis excluded groups.
In short, a decision to use litigation, should consider the following 5 steps: understanding the legislation; collecting evidence; framing the case; choosing the court; and mobilising for support and coverage.
The following pages explore in more depth issues surrounding the decision to build a case:
What research should be done prior to bringing a case
What issues should be contested
Possible pitfalls during litigation
