The 14th Chief Justice of the Republic of Kenya David Maraga, FCIArb, EGH officially opened the 2022 Africa Strategic Human Rights Litigation Course on 7th November 2022 The course is co hosted by Open Society Justice Initiative and Katiba Institute.
The former Chief Justice lauded Katiba Institute’s place in Kenya’s legal system arguably as the foremost institution in conducting public interest or strategic litigation.
“Katiba is not only respected within the Kenyan legal fraternity for its professionalism, thoroughness and innovative approach to litigation; it is also respected by Kenyans for its persistent and consistent fight to foster the rule of law in Kenya, through litigation, research and empowering communities through civic and public participation.” he said.
Hon. Justice Maraga praised the Open Society for building a reputation of being a leader in strategic litigation.
JUSTICE MARAGA’S KEYNOTE SPEECH DURING THE OFFICIAL OPENING OF THE AFRICAN STRATEGIC LITIGATION COURSE (SCHOOL) BY THE OPEN SOCIETY JUSTICE INITIATIVE AND THE KATIBA INSTITUTE AT MASAI LODGE IN
Ladies and gentlemen:
I am delighted to be with you at the opening session of this second edition of the African Strategic Litigation School which has drawn participants from 16 countries in this region. I thank the Open Society Justice Initiative (Open Society) and the Katiba Institute (Katiba) for the invitation to grace this occasion and also for the opportunity to share my thoughts and reflections on an important aspect of access to justice, a subject that is dear to me.
As you all know, access to justice, especially to the indigent and illiterate populations of many African countries is a mirage. Consequently, many in those segments of our populations suffer untold injustices and even indignities as a result of authorities trampling upon their rights. It is for these reasons that I want to thank the Open Society Justice Initiative and Katiba Institute for their philanthropy in Strategic Litigation.
The Child Rights International Network describes “Strategic Litigation”, sometimes also called “impact litigation” or “Public Interest Litigation” as;
“selecting and bringing a case to the courtroom with the goal of creating broader changes in society. People who bring strategic litigation want to use the law to leave a lasting mark beyond just winning the matter at hand. This means that strategic litigation cases are as much concerned with the effects that they will have on larger populations and governments as they are with the end result of the cases themselves.”
This definition elicits a number of critical points and issues for reflection. First, and most importantly, the use of strategic litigation as a tool for social change or transformation demonstrates a higher role that judicial power and judiciaries, when appropriately moved, can play in the society, beyond solving disputes between individuals.
In this regard, the Open Society initially focussed its efforts and facilitation on strategic human rights litigation, mostly before the global and regional courts, regional human rights commissions and the UN Treaty Bodies. However, with national courts and domestic legal systems becoming the arena for litigation to enforce and seek redress for human rights violations, an area that was previously the preserve of regional and international courts, the Open Society is now utilising the emerging national space for pursuing strategic litigation. This change has been prompted by a number of factors, both at the global or international level, as well as the national or domestic levels.
First, increasingly, most of the issues that form the agenda and focus of strategic litigation are now mostly being litigated in national courts or national adjudicative forums. These includes issues of climate change; accountability of multi-national corporations; digital rights; systemic issues concerning migrant rights among others.
Second, many States have constitutions that have adopted international law and especially international human rights law as part of their domestic laws, thus making international law principles justiciable before national courts. Kenya is a good example of this. Clauses 5 and 6 of Article 2 of the Kenyan 2010 Constitution adopts the general rules of international law and treaties or conventions ratified by Kenya as part of Kenyan law.
Third, States have increasingly expanded the scope and reach of domestic Bills of Human Rights to incorporate aspects of livelihoods, which usually form the basis of strategic litigation at regional and international levels, as part of their domestic legal systems. Examples include socio-economic rights such as health, education and water that are now a fundamental part of the human rights framework of many States. The practical application of such progressive rights sometimes wades into very practical issues of governance that were previously dismissed as being purely policy or political issues that were outside the remit of courts of law.
Great examples of these are South Africa and Kenya’s Constitutions. Strategic litigation in South Africa set the pace and inspired rights-based litigation on socio-economic rights and even extended frontiers of accountability to include not just the State as the duty bearer but also non-state actors who equally have a duty to respect and adhere to human rights obligations.
Fourth, the constitutions adopted by States have enhanced the role and place of judiciaries in constitutional systems of governance. Specific reforms include expansion of access to the courts and the elevation of judicial authority and status of courts to independent institutions, and addressing the challenge of subservience to political arms of government. These reforms have emboldened courts to hold political arms of government to account, including on issues affecting the lives and livelihoods of the people.
Finally, and perhaps the most important space is in the phenomenal growth and robustness of social movements that have coalesced around justiciable issues. Some of movements are led by lawyers who see litigation as a potent tool to advance social justice, democracy, the rule of law, and constitutionalism for many groups.
These trends are not just confined to Kenya and this region, but are a global movement as essential values and principles such as equality, equity, democracy, constitutionalism and others are increasingly emphasised and promoted through various channels.
The African Strategic Litigation School offers you a golden and rare opportunity for in-depth learning and interrogation on the factors that I have mentioned, not just in relation to the legal systems where you come from, but also from global and regional comparative perspectives.
The African School also provides an ample opportunity to grow your networks and build social capital that is a necessary ingredient for any social action to succeed through strategic litigation.
It has not escaped my mind that you are undergoing this training in the hands of institutions that have built invaluable experience and expertise in the area of strategic litigation.
The Open Society is a unique entity, being the only global strategic litigation entity that sits in a major global philanthropy, the Open Society Foundations. Over the years, Open Society has built a reputation of being a leader in strategic litigation – that is, both the practice of strategic litigation and also the study of and research on what constitutes strategic litigation or – in other words – what makes litigation strategic.
Because of the global reach and cover of its work, the Open Society has enabled and facilitated the building of a network of organisations and lawyers that identify and bring cases to national courts. I am informed that these national-level engagements have also enabled the Open Society’s engagements at the regional and global levels.
And of course, Katiba Institute (Katiba) which has earned its place in Kenya’s legal system arguably as the foremost institution in conducting public interest or strategic litigation. Katiba is not only respected within the Kenyan legal fraternity for its professionalism, thoroughness and innovative approach to litigation; it is also respected by Kenyans for its persistent and consistent fight to foster the rule of law in Kenya, through litigation, research and empowering communities through civic and public participation.
Indeed, it is through its approach to litigation and other work that Katiba has emerged as a leader in strategic litigation and a trusted public ally in seeking social transformation through access to justice.
Through this approach, Katiba has managed to grow a new crop of enthusiastic, passionate and innovative lawyers who are finding ground-breaking ways to use the constitution – through litigation – to address serious problems facing the Kenyan society. Generating a new group of committed public interest and movement lawyers, at a time fewer and fewer lawyers show propensity for public interest law and especially the use of their legal skills to foster a great culture of justice, is highly commendable.
We thank and remain entirely grateful to Professors Jill and Yash Pal Ghai who, together with Waikwa Wanyoike, helped found Katiba Institute. I have no doubt that the excellence, commitment and professionalism that we persistently see in Katiba reflects their ethos. I also know that this country and many parts of the world owe Yash and Jill immense gratitude, not just because of their role in designing many new transformative constitutions, but also because of their work in building great institutions like Katiba in many places across the world.
As I complete my remarks, I want to reiterate the significance and importance of this School, and the kind of human resource, experience, and knowledge that has been gathered to make this possible. Over the next four days, you will look at comparable contexts as you set what we can call a regional agenda for strategic litigation.
In our region, we have institutions confronted by comparable political, social, and legal environments. Social-political transformative contexts, and grounding the rule of law in that transformation. The redefined and expanded role of judiciaries in the changing context is a core focus of the school.
Within these varying contexts, there are common and recurring themes that include inclusiveness, equity, social justice, and other constitutional and legal values whose meaning and application are the core of societal transformation.
Please bear in mind that these values and their emphasis in our constitutional and political systems are not an accident. They are borne of the realisation of the need to correct what ails our societies, and social transformation through strategic litigation.
I have had the benefit of looking at the syllabus and it is rich in timely and relevant content that will no doubt enhance your knowledge, skills, and pursuits as you engage in your work.
I understand from the organisers that getting this African Strategic Litigation School or Course going has not been an easy journey. The earlier editions of this training, the Summer Justice Initiative and the Summer School were convened in Budapest and Berlin in Europe. African participants faced huge constraints and inconveniences (mainly related to securing travel visas) to attend the trainings. That prompted the organisers to consider an African School hosted in Africa, in order to ensure optimal attendance of legal practitioners from this and other regions.
As a result, the first School of its kind was held in Accra, Ghana in April 2019. Following the success of that inaugural school, Nairobi was selected to host the second school in 2020 but due to Covid—19 travel restrictions, that school had to be postponed until now.
With those gallant efforts to gather you here, I wish to appeal to you not take this opportunity for granted. You have a unique and special opportunity to listen, learn, and contribute to debates about access to justice in Africa, and especially in concrete situations that allow you to understand and learn the role of law in social change and transformation. Not many of the legal professionals in the region, or even beyond, have had such an opportunity. As such, please participate actively, and more importantly, reflect on how the issues that you discuss will ultimately apply and be relevant to practical situations that will confront you in your career and practice.
I once again thank the Open Society and Katiba Institute for putting together this wonderful programme and also thank you for inviting me to be part of this very noble initiative.
With those many remarks, it is now my singular pleasure to declare this school officially open.
God bless you all.
CHIEF JUSTICE (EMERITUS) DAVID K. MARAGA, FCIArb, EGH.