USING MODULE 22 INA TRAINING PROGRAM

STRATEGIES FOR ENFORCING ESC RIGHTS THROUGH DOMESTIC LEGAL SYSTEMS

GO TO SECTION I - MODULE 22

This module should help trainees understand/clarify for themselves:

• the domestic application of international human rights law;
• the importance of pursuing the justiciability of ESC rights; and
• various approaches that can be taken to ensure the enforceability of ESC rights at the national level.

Suggested methods

¨      Case study: The following case study by Felix Morka, Executive Director of the Social and Economic Rights Action Center (SERAC) in Nigeria, based on SERAC’s experience, could be used for facilitating discussion on the importance of using domestic courts for advancing ESC rights and the manner in which it should be done.

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.

Mobilizing through Litigation

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.