Strategic litigation as a panacea for systemic inequalities

Strategic litigation is litigation that challenges institutions and practices whose continuation would perpetuate gross social or economic injustice. While it is increasingly being used in sub-Saharan Africa, it has long been recognised as a powerful tool for challenging structural, systemic, and entrenched forms of socio-economic inequality. It is most effective when it challenges institutions and practices whose continuation would perpetuate gross social or economic injustice.

Strategic litigation works as a panacea for deep-rooted inequalities because it challenges and seeks to disrupt the social, political, and legal order of society. As such, instead of seeking to change an individual’s status in society, it seeks to challenge structural social relations that have shaped people’s lives. Through the use of strategic litigation, marginalised and disadvantaged groups can challenge discriminatory laws, policies, and practices and seek remedies for the harm that they have suffered. Strategic litigation can also have a broader impact through legal reform as it can generate policy changes as well as provide inspiration for other forms of activism.

The case of Rebecca Gyumi exemplifies the important role that strategic litigation can play in addressing deep-rooted inequalities and injustices in Tanzania. Rebecca has been at the forefront of efforts to challenge the country’s discriminatory laws on marriage.

She also leads Msichana Initiative, a long-term partner of FCS in the area of combating gender-based violence. In 2018, Rebecca filed a petition with the High Court of Tanzania, challenging the constitutionality of the Law of Marriage Act and calling for the minimum age of marriage to be raised to 18 for both girls and boys.

In her petition, she argued that the current law violates children’s rights to education, health, and protection from violence and that it undermines Tanzania’s commitments under international human rights treaties.

Gyumi’s challenge to the Law of Marriage Act has garnered widespread support from civil society organisations, international human rights groups, and other advocates for children’s rights. Many have praised her courage and determination in standing up for the rights of girls and boys, and have called on the government of Tanzania to take action to address the problem of child marriage.

In light of strategic litigation’s power to successfully challenge government authority, there have been a number of efforts to limit its use in advocacy. The recent amendments to the Basic Rights and Duties Enforcement Act passed by the Tanzanian Parliament on June 10, 2020, are a case in point. Efforts by Tanzanian civil society to safeguard this vital advocacy resource must therefore continue. Both its benefits and drawbacks are discussed here.

One of the key advantages of strategic litigation is that it allows individuals and communities to bring their grievances to the attention of the courts, where they can be heard and addressed by neutral and independent decision-makers. This can be particularly important in contexts where other forms of advocacy and activism may be difficult or dangerous.

Furthermore, strategic litigation can also serve as a means of holding governments and other powerful actors accountable for their actions. By bringing lawsuits against state actors, civil society organisations can expose wrongdoing and seek redress for human rights violations. This can be an effective way of highlighting the systemic nature of inequalities and the need for systemic change.

Additionally, strategic litigation can also be used to set legal precedents that can have a broader impact on the protection of human rights. For example, successful lawsuits can establish new legal principles or interpretations of existing laws, which can be applied in other cases and contribute to the development of a more just and equal legal framework.

Despite the potential benefits of strategic litigation, there are also limitations and challenges that must be considered. For instance, strategic litigation can be a slow and costly process, and it may not always be feasible or effective for addressing deeply ingrained inequalities. In some cases, it may be necessary to pursue a range of complementary strategies, such as public advocacy and policy reform, in order to achieve lasting change.

Furthermore, strategic litigation can also be subject to political interference and other forms of resistance, which can make it difficult to secure meaningful remedies. In order to overcome these challenges, it is important for advocates to develop strong legal arguments, build strategic partnerships, and engage with a range of stakeholders.

In conclusion, strategic litigation can be a valuable tool for addressing deep-rooted systemic inequalities and promoting social justice.

By bringing grievances to the attention of the courts and seeking remedies for human rights violations, marginalised and disadvantaged groups can challenge discriminatory laws and practices and contribute to the development of a more equal and inclusive society.