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What is public interest litigation?

Litigation is where a legal complaint is initiated before the court by a person who believes he/she has suffered, or is suffering, harm. For the litigation to be successful, that person must demonstrate to the court that he/she has been legally wronged (in other words, that person’s legal rights have been breached).

We have put together a list of issues to consider before undertaking public interest litigation. This is intended to be a practical guide, proposing practical steps you can take, and answering any questions you may have.

Contents

  1. What is litigation?
  2. What can litigation achieve?
  3. What are the characteristics of litigation?
  4. What is Public Interest Litigation (PIL)?
  5. What are the characteristics of a PIL Case?
  6. How is PIL different to other litigation?
  7. What can PIL achieve?
  8. What is the enabling law for PIL?
  9. Is there a requirement for the pre-action notices?
  10. How to commence a PIL Case.
  11. What remedies may be available?
  12. Is PIL right for you?
  13. What are the downsides to PIL?
  14. Public interest litigation: your questions answered
1

What is litigation?

Litigation is the process of bringing an action/ a case / a suit in court to enforce a right.

For example:

  • if you have suffered harm inflicted by another, you may go to a court to order that you be compensated by that person who inflicted the harm.
  • If you want to stop another person doing something that harms you, you may ask the court to order that the other person must stop that activity.

For the litigation to be successful, you must demonstrate to the court that you have been legally wronged (in other words, that your legal rights have been breached) and that it is that person who wronged you.

2

What can litigation achieve?

The person who starts the litigation (the Claimant) will ask the court for a particular solution to his/her problem. This is called the ‘remedy’.

The remedy will have to be met by the ‘wrong-doer’ (the Defendant or Respondent).

The remedy requested will vary from case to case and from court to court.

The court can decide:

  • to grant or refuse the remedy requested. (Usually this depends on whether the Claimant proves his case and wins the litigation), or
  • to grant a remedy different to the one which the Claimant requested but which it believes is correct and just. [S.98. Civil Procedure Act gives the court the inherent
  • power to make such orders as may be necessary for the ends of justice]

For example, you might ask a court:

  • to order someone to stop pollution of a river, or
  • to order someone to provide basics in a particular situation, or
  • to declare that someone has a right to attend a school, or
  • to provide compensation for land being occupied

[ Insert a link here to “Remedies” on PIL checklist]

3

What are the characteristics of litigation?

  1. There are at least two sides (called the parties / litigants), to any litigation:
  • the “Claimant“: the party which believes it is suffering harm and has a legal cause for a complaint

and

  • the “Defendant“: the party which is defending the legal complaint or claim brought against it .
  1. Both parties use arguments based in law (legislation or case law) which require evidence to support them.
  2. Both parties use their version of the facts (their case) in an attempt to persuade the court that their complaint or defence is correct version of the facts.
  3. Cases can be heard by a court (e.g. a national, regional, or an international court), or a tribunal or another type of less formal dispute settlement body. (For simplicity, we refer to the body hearing the case as “the court”).
  4. Upon hearing or receiving the arguments from both sides, the court will consider the arguments and decide which side it believes is correct under the law.  It will then make a decision or judgment. [See S.2(i) Civil Procedure Act]
  5. The Claimant ( now a “decree holder” – person in whose favour a decree has been passed or an order capable of execution has been made [See S.2(d) Civil Procedure Act]) will then seek to enforce this judgment against the other side, after any appeals (if any) have been decided. For more on this see “How can PIL help me?” (LINK).
  6. NB: Obtaining a judgment may also be useful in a wider context. It can lead to law reform and may draw public attention to an important issue.
4

What is Public Interest Litigation (PIL)?

Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. It is litigation instituted for the benefit of the public who may be aware of the rights but lack financial ability to enforce those rights as well as for those who may not be aware at all about their infringed rights. [(Rev Mtikila v A.G of Tanzania HCCS No.51 of 1993 (TZ) at https://www.elaw.org/es/content/tanzania-rev-christopher-mtikila-v-attorney-general-civil-case-no-5-1993-high-court-tanzania]

As the term suggests, “Public Interest Litigation” is litigation that is taken in order to advance a “good cause” or issue of public importance as opposed to the specific interests of individual litigants. [See J. Oloka-Onyango, Human Rights and Public Interest Litigation in East Africa: A Bird’s Eye View; The George Washington International Law Review Volume 47, Number 4]

For example, asking the court to:

  • improve the human rights situation where you live,
  • advance women’s rights,
  • promote equality rights,
  • ensure the public has access to information and is able to express its opinions,
  • protect the environment

Click here to see a list of potential areas in which PIL may be useful.

5

What are the characteristics of a PIL Case?

The matter must:

  1. a) Affect a significant number of people not just the individual; or
  2. b) Raise matters of broad public concern; or
  3. c) Impact on disadvantaged or marginalized group; or
  4. d) It must be a legal matter which requires addressing pro bono publico (‘for the common good’); and
  5. e) Seek a legal remedy in public interest.

The Supreme Court of Uganda has held that ‘the salient ingredient of Public Interest Litigation is that the suit is brought for and in the interest of the Public. Such litigation is initiated only for redress of a public injury, enforcement of a public duty or vindicating interest of public nature’. [Muwanga Kivumbi v Attorney General (CONSTITUTIONAL APPEAL NO. 06 OF 2011) [2017] UGSC 4 (14 February 2017); at http://www.ulii.org/ug/judgment/supreme-court/2017/4/]

In the same case the Supreme Court also stated that there are instances [as was in the present case] where a matter brought to court in private interest affects matters that are in the public interest but the mere fact that a court ruling in a case brought by an individual will benefit the public does not place the lawsuit in the category of Public Interest Litigation.

6

How is PIL different to other litigation?

PIL shares many features with ordinary litigation, but it is different in one crucial aspect:

  • ordinary litigation are usually brought in order to protect an individual’s own personal interests
  • but the intention of PIL is protect the interests of a section of the public at large or the natural environment.

PIL is brought with the aim of protecting the interests of the public, or at the very least, the interests of persons beyond those who are bringing or defending the litigation. It is in some ways similar to a group or class action (Representative suit as envisaged in Order VII rule 4 of the Civil Procedure Rules) where lots of claimants with similar interest bring a claim.

7

What can PIL achieve?

PIL is commonly used as a mechanism for political, social, or legal change.

People engage in PIL when they feel that the legal rights of a certain group (often whole communities or social/cultural groupings) or the natural environment are threatened. An individual or organisation representing the interests of the group or issue in question will bring the legal complaint to court. Case in point

 

Uganda court rules against refund of ‘bride price’ after divorce

The weekend is a good time for those wanting advice on the practicalities of getting married in Uganda. On Saturdays and Sundays, local television stations broadcast special editions, often paid for through advertising, about weddings and kwanjula, a traditional event where a woman introduces her prospective husband to her parents.

There is a chance to learn how best marriage hopefuls can organise their celebrations or what sort of gifts they may consider asking for. But a key highlight in these shows, especially those about kwanjula, is the property the groom gives to the bride – cars, cows, money, fridges, and other things – in the form of the “bride price”. The more he gives, the higher his wealth and status.

The return of the bride price connotes that the woman in marriage was some sort of loan

Until last Thursday, if a marriage failed, some men would go back to the woman’s family home to demand a return of their property. But the supreme court in Kampala has ruled, in a majority judgment of 6:1 [Mifumi (U) Ltd & Anor Vs Attorney General & Anor (Constitutional Appeal No. 02 of 2014) [2015] UGSC 13 (6 August 2015) at http://www.ulii.org/node/25384], that the traditional custom and practice of demanding a refund of the bride price if a marriage breaks down is unconstitutional and “dehumanising to women”.

“The return of [the] bride price connotes that the woman in marriage was some sort of loan. But even in sale, the cliche is that goods once sold cannot be returned or goods once used cannot be refunded. If that cannot be done in respect to common goods like cows, why should it be applied to a woman in marriage?” asked Justice Bart Katureebe, one of the six judges who consented to the ruling.

The lead justice Jotham Tumwesigye said it was “unfair” for the parents of the woman to be asked to refund the bride price after years of marriage, saying it was unlikely they would have kept the property that had changed hands. Read more https://www.theguardian.com/global-development/2015/aug/17/uganda-court-rules-against-refund-bride-price-divorce

 

In some cases, people who are working to advance the public interest may themselves be taken to court, for example, by a company or government official. Although such a case is clearly not PIL, the way in which it is defended may be compared to PIL. It may be possible for the Defendants to use such cases to set precedents or reform the law and thereby protect a wider group of people than those named as Defendants.

PIL can provide a short-term solution for an impending or current legal wrong, but it can also be used to seek long-term, systemic change through legal reform.

Since PIL’s main function is to actively promote change, it is usually part of a wider plan and as such, PIL cases are chosen carefully as part of an overall campaign for change which may also include other strategies such as lobbying and demonstrations.

8

What is the enabling Law for PIL?

Before any litigant goes to court, they must have a legal basis for their running to court. The law must allow you access to court, if courts are to entertain your matter.

The foundation of public interest litigation in Uganda is in Article 50(2) of the 1995 Constitution of Uganda which provides that, “Any person or organization may bring an action against the violation of another person’s or group’s human rights.”

In Uganda, locus standi (the right to bring an action or to be heard in a given forum) in matters of public interest has been given to every person or organization whether or not they are the victim of the wrong and whether or not the victim is known to the applicant.

Therefore, whenever there is any grievance caused by an act or omission contrary to the Constitution, any person may bring an action to Court.

Article 137 (3) of the Constitution is also another avenue which supports PIL, it provides that, “A person who alleges that –

  1. a) An Act of Parliament or any other law or anything in or done under the authority of any law; or
  2. b) Any act or omission by any person or authority,

is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.

This provision allows any person who alleges a violation of the Constitution to have taken place to petition the Constitutional Court. Such an action may also be as a result of an act or omission of a person or organization or from an Act of Parliament being inconsistent with the Constitution.

This was also highlighted by Justice Mulenga JSC (RIP) in Ismail Serugo v KCC &Attorney General (Constitutional Appeal No. 2 of 1998) [at http://www.ulii.org/node/15773], who noted that the right to present a constitutional petition was not vested only in the person who suffered the injury but also in any other person.

 

What is the difference between Article 50 (2) and Article 137 (3) of the Constitution?

Article 50 prescribes the forum for enforcement of human rights actions as a “competent court” while for Article 137 actions, the Constitutional Court is the forum. The challenge always arises in determining whether the action should be under Article 50 or Article 137 and therefore deciding which the correct forum is.

The difference between these two provisions has been defined by the courts in a number of cases.

  • Firstly, there is a difference between the competent court that can hear the different matters.

In the case of Attorney General v DavidTinyefuza (Constitutional Appeal No. 1 of 1997) [ [Wambuzi CJ (as he then was) said; “In my view, jurisdiction of the Constitutional Court is limited in Article 137(1) of the Constitution. Put in a different way no other jurisdiction apart from interpretation of the Constitution is given. In these circumstances I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation or construction of a provision of the Constitution, the Constitutional court has no jurisdiction.”

In Ismail Serugov KCC & A.G (Constitutional Appeal No. 2 of 1998) the Court ruled that the Constitutional Court could deal with Article 50 matters in the course of handling Article 137 matters. However unless the action requires interpretation of the Constitution, the Court of first instance should be the High Court.

Therefore, from the above, it can be said that the competent court to handle the matters brought under Article 50 is the High Court while the Constitutional Court is mandated to hear matters brought under Article 137.

  • Secondly, the mandate under Article 50 is classified as enforcement of rights and freedoms by courts as defined under its title while the mandate under Article 137 is restricted to questions of interpretation of the Constitution.

This difference has brought some trouble as actions have been dismissed in the Constitutional Court on the grounds that the requisite remedy is not Article 137 interpretation but Article 50 enforcement.

In the case of Alenyo v Attorney General (Constitutional Petition No. 5 of 2002) [at http://www.ulii.org/node/15794], the petitioner alleged that the Law Council was guilty of commissions or omissions, which are inconsistent with or in contravention of the Constitution. He petitioned the Constitutional Court for a declaration to that effect.

Court held that

…In our judgment these are the types of actions envisaged by Article 137(3)(b). He is not stating as a fact that he has a definite right thatshould be enforced. He is allegingthat the conduct of the Law Council has violated his rights guaranteed by specified provisions of the Constitution and this Court should so declare. In order to do that the Court must determine the meaning of the specified provisions of the Constitution allegedly violated and whether the conduct complained of has actually violated those provisions. The carrying out of thisexercise by the Court is an interpretation of the Constitution. It is not an enforcement of rights and freedoms. The Court is being called upon to interpret the Constitution. It can make a declaration and stop there or it can grant redress if appropriate. Whether the alleged acts and omissions of the Law Council contravene or are inconsistent with the Constitution is not relevant to the issue of jurisdiction. It is what the Court is called upon to investigate and determine after it has assumed jurisdiction. It is not relevant either that there is a remedy available tothe petitioner elsewhere. That alone cannot deprive the Court of the jurisdiction specifically conferred on it by Article 137.”

Wambuzi CJ said in Ismail Serugo’s case (supra) that; “In my view for the Constitutional Court to have jurisdiction the petition must show on the face of it, that interpretation of a provision of the Constitution is required. It is not enough to allege merely that a constitutional provision has been violated. If therefore any rights have been violated as claimed, they are enforceable under Article 50 of the Constitution by another court.”

9

Is there a requirement for the pre-action notices?

In ordinary suits, the law requires that the claimant gives notice of intention to sue to the defendant / respondent.

With PIL, there is no requirement for any pre-action notices even where the defendant is the Government or a scheduled corporation. Any form or length of notice would suffice.

In TEAN v Attorney General and NEMA (Misc. Application No. 39 of 2001) [at http://www.tobaccocontrollaws.org/litigation/decisions/ug-20010828-the-environmental-action-netwo ], court noted that there is no need for giving 45 days statutory notice to sue where there is a breach of the fundamental right or freedom provided for under the bill of rights of the Constitution.

10

How to commence a PIL case

A public interest case is instituted by way of Notice of Motion supported by an Affidavit as provided for under Rule 3(1) of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules S.I 13-4. [See National Association Of Professional Environmentalists -V AES Nile Power Ltd (High Court Misc. Application No. 268 of 1999)]

However, where the claimant is seeking for additional reliefs such as special damages or restoration orders, the proper procedure would be by way of ordinary Plaint per Order IV rule 1 of the Civil Procedure Rules.

The evidence may be presented by either oral or written submissions as the parties may agree or as court may order.

The court must be convinced by the applicant on a balance of probabilities.

An action brought under Article 50 must relate directly to a fundamental human right in the Constitution. This was emphasized in the case of Pastor Martin Sempa versus Attorney General High Court miscellaneous application 71 of 2002 where the learned trial judge struck out the action on the ground that it did not disclose violation of a constitutional right. He stated that “It is not enough to assert the existence of a right. The facts set out in the pleadings must bear out the existence of such a right and its breach would give rise to relief.”

11

What remedies may be available?

Although PIL is often used as part of a wider campaign, the primary intention of PIL, as with any litigation, is to secure a concrete solution or remedy for a problem.

That solution or remedy could be one of the following:

  • a ruling that expresses authoritative support for a group’s argument or complaint [brief example]
  • a legal order requiring a certain action to be taken [brief example]
  • a legal order preventing or stopping an event or series of events from happening [brief example]
  • a ruling securing financial compensation for a group of people who have been legally wronged [brief example]At the heart of all of these remedies is a core finding by the courtDo I have to claim money? It doesn’t necessarily feel right.. Sometimes money isn’t the most important thing

This is a second goal of PIL: to create a legal precedent for the future so that hopefully, no other individual or group will suffer the same the wrong. Often rulings by constitutional or supreme courts are legally binding, which means they need to be taken into account when writing laws in the future. In some systems and in certain courts, legal rulings may give rise to parliamentary action.There are other situations where PIL can be used to achieve a broader objective than simply winning or defending a case. The very process of bringing or defending a case may raise public awareness of an issue and foster public support for change in a law or practice. In this way, PIL may aid other methods of promoting change like lobbying, political activism, or demonstrations.

  • [example or story here]
  • [example or story here]
  • For more serious or systemic issues such as murder, rape, or gender inequality, compensation alone cannot fully provide a just solution. In such cases, better law enforcement, law reform or social change, is necessary.
  • Although financial compensation may not seem an appropriate solution to some complaints, its suitability or symbolic value in certain situations should be recognised. Furthermore, compensation may, in some cases, be a complete and suitable remedy for a group who believe they have been wronged.
  • The formal finding that a legal wrong has been done is extremely important. The court’s official acceptance of one party’s version of the facts over another’s shows the rightfulness of the successful party’s position and this can have long-reaching consequences. It can lead to the court taking positive or preventative action to offer protection to the group or interest facing threat.
12

Is PIL right for you?

When considering whether to use PIL, it’s important that you define a clear objective for doing so. Think carefully about whether PIL is the best method to achieve your goal, and if so, which solution or remedy you should seek. Clear goals and careful planning are essential before bringing any PIL to court.

[Insert link to “what is your goal?” in PIL Questions answered]

 

But even before setting the goal and planning first consider that your case actually falls within PIL. A quick checklist is:

  • Is it aimed at a broader public good, as opposed to the specific interests of an individual litigant? [See J. Oloka-Onyango, Human Rights and Public Interest Litigation in East Africa: A Bird’s Eye View] [The Supreme Court in Muwanga Kivumbi v Attorney General Constitutional Appeal No. 06 Of 2011, Supreme Court of Uganda at Kampala has stated that in PIL, the applicant has not his or her own interest and does not struggle for himself or herself whereas in Private Litigation an individual struggles for their own benefit]
  • Is such litigation initiated only for redress of a public injury, enforcement of a public duty or vindicating interest of public nature? [See Muwanga Kivumbi v Attorney General Constitutional Appeal No. 06 Of 2011, Supreme Court of Uganda at Kampala ]
  • Are the following the possible beneficiaries? Groups of people who because of inability or incapability engendered by say ignorance, poverty, illiteracy, and etcetera cannot sue or be sued or defend a suit for simple reasons that apart from being indigent. [See British American Tobacco Limited v. The Environmental Action Network Ltd., Civil Appl. no. 27/2003, High Court of Uganda at Kampala (2003)British American Tobacco Limited v. The Environmental Action Network Ltd., Civil Appl. no. 27/2003, High Court of Uganda at Kampala British American Tobacco Limited v. The Environmental Action Network Ltd., Civil Appl. no. 27/2003, High Court of Uganda at Kampala British American Tobacco Limited v. The Environmental Action Network Ltd., Civil Appl. no. 27/2003, High Court of Uganda at Kampala at https://www.tobaccocontrollaws.org/litigation/decisions/ug-20030416-british-american-tobacco-limit]
13

What are the potential downsides to PIL?

PIL can be hugely successful in securing immediate protection for threatened communities, defending the environment, and in indirectly triggering long-lasting legal change.

However, despite its potential, litigation is not a process to be undertaken lightly. It is often:

  • time-consuming
  • adversarial and
  • expensive.

[example/explain – perhaps via a story]

By raising a particularly sensitive issue or challenging a powerful organisation, a group must be prepared to face public pressure, intimidating behaviour, and even physical danger.

14

Public interest litigation: your questions answered

We have put together a list of issues to consider before undertaking PIL. This is intended to be a practical guide and to offer practical steps you can take.

Consider the PIL menu here: PIL: your questions answered here.

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