Strategic litigation seeks to address widespread problems that significantly affect a large group of people. Examples of refugee rights strategic litigation cases include the initially successful challenge to the legality of deporting Somali refugees from Kenya, brought by Kenyan legal NGO, Kituo Cha Sheria, and Asylum Access Ecuador’s Public Unconstitutionality Action underway against Executive Decree 1182.
- Kituo Cha Sheria’s Challenge to the Legality of Deporting Somali Refugees, Kenya
- Asylum Access’ challenge to the constitutionality of Decree 1182, Ecuador
When identifying major problematic themes, you should consider the potential number of individuals or groups that may benefit from a positive case outcome. Activities and procedures that may already form part of your every-day work may help pinpoint key areas where strategic litigation challenges could make a difference:
- Annual planning activities;
- Internal monitoring meetings or exercises;
- Field visits;
- Consultations with clients, community groups, NGOs and legal practitioners; and
- Themes may also be sourced from publications such as journals, newsletters, and reports from other parties tuned into refugee issues in your area.
Regularly discussing major trends and issues arising from the client base within your organization and among partners and colleagues is an important activity regardless of strategic litigation intentions. However, these discussions could be structured with the aim of identifying particular barriers to refugee rights, or patterns of rights violations that might be remedied through the court system.
Many potential themes are likely to arise, and it is important to assess the appropriateness of addressing such themes through impact litigation. Deciding to pursue strategic litigation may depend on whether an issue is being negotiated in other fora – through policy advocacy, or by capacitating refugees to pursue such avenues themselves – and the success, or otherwise, of these endeavors. Strategic litigation is often perceived as confrontational and may jeopardize already strained relationships with government authorities. In some contexts it may even put refugee clients at risk, whose cases may be affected simply by association. Consequently, it is better saved for circumstances in which direct negotiation is no longer feasible.
If you identify many strategic themes it may be useful to prioritize, taking into account the costs and efforts required to effectively litigate such a case. Not all themes will be avail themselves to be litigated at the same level – some may be possible in domestic courts, while others may have standing to be brought internationally, with varying implications for time-frames, funding and staffing.
When themes are identified these must be communicated to all staff and volunteers providing legal services or running community legal empowerment activities, so that they are able to refer compelling cases to the strategic litigation coordinator to decide on further action. Staff and volunteers should be given guidance on understanding whether a case is suitable for impact litigation under one of the chosen themes, and encouraged to flag cases regularly, even if unsure of their potential.