19 Aug 2017 - by A4ID

Interview with Solomon Sacco from Interights on strategic litigation

Solomon Sacco is a Zimbabwean lawyer who works for Interights, a human rights litigation centre litigating on human rights cases. They take cases on economic, social and cultural rights (particularly rights to health and education), security and rule of law, and equality.

Do you see strategic litigation as an important development tool or as a last resort?

I think that strategic litigation is an important advocacy tool to achieve social change but it is only one among a number of different strategies that can be used. Often other strategies such as publicity campaigns and social mobilisation are more effective in bringing attention and political action to an economic and social rights issue. Even where litigation is initiated this is usually as part of a wider campaign. So instead of a last resort I would say that strategic litigation should be part of a wider strategy.

What steps can you take to ensure that strategic litigation will be effective in protecting  education rights where states have not yet accepted the justiciability of socio-economic rights?

There are sometimes other domestic ways in which economic and social rights can be enforced, through discrimination litigation for example, or through the use of administrative law remedies. Where none of these remedies provide protection in an individual case it would usually be possible to take a case to the regional level, to the African Commission or Court on Human and Peoples’ Rights.

How do you approach states where there is no precedent of bringing cases on the right to education to court?

There is very little precedent generally on the right to education. We try to encourage the use of comparative and international law so we would provide national lawyers with case law from international and national jurisdictions on education law where possible but otherwise on economic and social rights more generally as well as on equality and non-discrimination. First cases on the right to education should often be on the immediate obligations, particularly the non-discrimination obligation. We would therefore encourage domestic lawyers to build up national jurisprudence by starting with non-discrimination cases and developing the courts’ understanding of the issues.

What approach does Interights take to ensure that the likelihood of a successful outcome is as high as possible?

One of the most important aspects of strategic litigation is case selection. This may have some effect in preventing an unsuccessful result. Otherwise public information campaigns and other forms of advocacy are crucial in ensuring that public perception is in favour of the case as this can have an impact on the way courts decide in new cases.

When states are not ensuring access to education, is this mainly because they are unable or unwilling?

My opinion is that it is usually a matter of priorities within governments. Thus education may be less prioritised than the military. Even where education does receive a large percentage of the national budget there may be a failure within national policies to prioritise the interests and rights of vulnerable groups such as the poor. Government plans and policies often allocate the same if not more to the provision of education to wealthier children as they do to disadvantaged children. In other words there is a failure to develop and implement human rights-informed policies.

If states are unable to provide access to education due to a lack of resources, what chance will there be of redress even if a case is successful?

There are opportunities to receive international assistance towards the realisation of economic and social rights and national decisions to the effect that a state is failing to ensure enjoyment of the right to education may be a useful advocacy tool for that government when it seeks international assistance. Even where there are resource constraints it may be possible for litigators to identify areas where the problems are more to do with failure to prioritise the right to education rather than an absolute lack of resources. In such instances it is perhaps best to emphasise the obligations to ensure basic enjoyment of the right by all and therefore argue for particular attention to the most vulnerable in society.

How do you see the use of strategic litigation to promote social and economic rights developing in the future?

Hopefully there will be a number of developments – both procedural and substantive. When the protocol to the optional protocol comes into force there will be a new forum at the United Nations to enforce economic and social rights. This should improve understanding of state obligations around minimum core obligations, particularly as these interface with the reasonableness review, which has been incorporated into the optional protocol. National courts in countries like South Africa and Kenya will be asked more complicated questions, such as the content of the obligations inherent in the immediate obligation to provide primary/basic education. A lot will depend, however, on progressive lawyers in domestic jurisdictions developing effective litigation strategies in collaboration with affected communities and civil society organisations.

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