Dr Charles Khamala
Because government-related agencies themselves fail to correct private sector market distortions – for both justice as efficiency and/or to obtain equity – there emerges a voluntary, not-for-profit sector. According to William Twining, “perhaps the most important problem that faces the legal profession in a poor, developing country is how to provide adequate legal services for the public at large where most to the public is indigent.” This is because, he says, “Under the British influence the adversary model of judicial proceedings has been imported into East Africa.”
The function of non-governmental organisations is not to supplant the government or usurp the role of elected leaders and/or appointed officials. Rather, three essential criteria characterise the mandate of public interest law initiatives. First, they aim to gather and supply information and give incentives to public officials in order to improve the performance of actions undertaken by governmental institutions. Second, by publicising governmental failures, they aim at drawing attention to excesses of omission or commission. In a democracy, bad press triggers the possible removal of public officers from office by the electorate at future elections. Where unaccountability and lack of transparency are suspected, officials may be deterred from wrongdoing by the threat of negative publicity. Furthermore, apart from informing the constituencies regarding non-performing representatives, volunteers may assist to organise communities into effective lobby groups which can better appreciate and therefore articulate their specific interests. However, such diplomatic approaches to legislative reform or administrative policy-making are often less effective than the direct threat of negative publicity. The third objective is litigation. Any step in court actions – whether writing a demand letter or actually commencing prosecution against a public body –generates immense publicity and can potentially correct governmental failings. Litigation is, in itself, thus a major strategy apart from its final outcomes of actual court orders against officials to obey the law. A public interest litigation initiative thus has three characteristics. One, it is voluntary. Two, it produces greater external or public benefits accruing to many people than merely the private benefits accruing to an individual person. Three, it uses law instruments, primarily litigation.
Joel F. Handler, Betsy Ginsberg and Arthur Snow, trace public interest litigation (PIL) in Anglo-American common law jurisprudence to the establishment of the American National Association for the Advancement of Coloured People (NAACP) in 1909. In 1954 the landmark case of “Brown v Board of Education, Toepeka, Kansas, 347 U.S. 483 (1954)”, the US Supreme Court abolished the notion that public schools could possibly be separate but equal, as irrational. Desegregation of civil rights gathered momentum upon litigation by the American Civil Liberties Union (ACLU) in the 1960s. The 1965 Voter’s Rights Act granted Negroes and other minorities equal franchise with white American males. Subsequently, using public interest litigation approaches, environmental and consumer rights were recognised.
However, such interests do not promote exclusively poverty law. The latter are instead regarded as middle-class interests which attract less controversy and risks for those who litigate them. Environmental rights are categorised as third generation or peoples’ or solidarity rights “because often the essence of environmental problems is to impose public environmental interest onto individual private rights.” Hence Jill Cottrell explains that “they cannot be exercised by individuals as individuals but rather as group rights.”
Substance and procedure
The Indian Constitution sets out directives which provide that the State should progressively promote the attainment of social, economic and cultural rights. To this end, during the 1980’s, Chief Justice Bhagwati interpreted this provision pro-actively so as to recognise legal aid to a poor accused person in a criminal case “as a basic fundamental right in keeping with Article 14 of the International Covenant on Civil Political Rights although the Indian Constitution did not include the right to legal aid as a fundamental right.”
Regarding marginal substance of public interest litigation:
“The Supreme Court of India therefore decided to depart from the traditional rule of standing and so broaden access to justice. Where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of their constitutional or legal rights, and such person is by reason of poverty, disability in a social or economically disadvantaged position, unable to approach the court for relief, any member of the public or social group action group acting bona fide can maintain an application in a high court or the Supreme Court seeking redress for the legal wrong or injury caused to such person or determinate class of persons.”
Regarding informal PIL procedure:
“This is more than a radical generalisation of or extension of the technique followed in most countries in habeas corpus cases where the court usually acts on letters written by or on behalf a person who is in illegal custody and is by reason of incarceration unable to approach the court for relief.”
Furthermore, he stated, “In some cases the court itself usually on the basis of a newspaper report, has instituted the action.”
Kurshid Iqbal cautions that: “While PIL is a helpful tool for social justice, it has problems. Firstly, there is a danger of abuse by private interests.” Hence “courts have always taken into account the bona fides of the petitioner and cautioned that vexatious and frivolous petitions may lead to an abuse of process of the court.” Secondly, “blatant violations of human rights continue’. Thirdly, “the courts” view in similar cases is inconsistent…” Fourthly, “a lack of resources is an impediment to the process of implementation… Fifthly, the courts’ jurisdiction is limited to fundamental rights.
Thus PIL provides a piecemeal approach to justice [that] does not allow for comprehensive and systematic human rights agenda.” In the middle of the first decade of the new Millennium, the Pakistani Supreme Court had over 1000 pending suo moto (of their own motion) cases pending. On 9 March 2007 Chief Justice Itifikar Chaudhry was suspended. Subsequently on 3 November 2007, a state of emergency was declared by Dictator General Pervez Musharaf.
Alongside 60 other judges, Chaudhry was dismissed. Iqbal notes that two grounds were advanced to justify removal of the Pakistani chief justice and activist judges. First, because he was obstructing the fight against terrorism; and second because by overstepping the separation of powers doctrine, he was interfering with the Executive and Legislative branches. Many government civil servants were thus becoming frustrated and had opted for inaction to avoid embarrassment by the court reversing their administrative decisions. In 2009 Chaudhry and many of the dismissed judges were reinstated. Iqbal therefore expresses optimism of “returning to PIL in future.”
Representative action in Kenya
Public interest litigation provisions are established under Articles 19-23 in Chapter Four entitled “The Bill of Rights”, particularly the general provisions of fundamental rights of Kenya’s Constitution. Articles 22 on Enforcement of the Bill of Rights 3(c) empowers the Chief Justice to make rules waiving fees for commencing proceedings regarding complaints of human rights violations, while, following the Indian and Pakistani examples, Article 3(b) permits courts to entertain such proceedings on the basis of informal documentation. Under Article 22(c), such proceedings may even be commenced by “a person acting in the public interest.”
Encouragingly, customary international law principles as well as international treaties to which Kenya is party are introduced by Articles 2(5) and (6) respectively. Hence PIL continues to increase. Consequently, three NGOs, Katiba Institute, Africog and the Kenyans for Truth and Justice, conclude that:
“These kinds of PIL actions will be critical in providing opportunities for disadvantaged Kenyans to address decades of unjust and unfair economic and social policies. PIL will also likely become an important tool for implementing the new constitution’s strong provisions on public participation, which require all levels of government to ensure that they consult citizens in policymaking and other decisions. Where government fails to engage with citizens, it can expect legal action on the basis of Article 258 and on the grounds that it has failed to be ‘accountable’ and ‘transparent’ as required under Article 10 on national values and principles for governance.”