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Legal action can be an excellent way to secure justice if you have suffered loss, harm or an injustice of some kind. However, legal action will not always be the best way to achieve the outcome you need.
A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you. You should continue to ask yourself at each stage of your case’s preparation.
Here we explain briefly some of the factors that may help you decide if legal action is right for you.
There are many advantages to using legal action as a tool to secure justice. If you think legal action could help you and your community, it could be worth pursuing further.
Legal action can secure justice for you. If you successfully take legal action in court, you will usually be granted a remedy.
Where large numbers of people are affected by a common problem, a remedy in a case could have a positive impact on a large number of people.
Example: Endorois Welfare Council v Kenya
In the African Commission on Human and People’s Rights, a coalition of local community groups and international organisations successfully challenged the Kenyan governments practice of evicting indigenous communities from their land.
In a single ruling, compensation and the right for thousands of indigenous peoples to return to their lands was secured. A result which was made possible by the pooling of resources and expertise across different organisations.
For further information, see What Happens if I Win?
By providing a tool which marginalised groups can use to challenge unjust action, legal action can empower oppressed peoples. It can unite citizens and civil society groups with diverse interests and backgrounds, provide a forum for them to be heard, and build a common platform to push for change.
From this platform, people can hold governments to account for failures to protect the people they serve.
Example: SERAC v Nigeria
In the process of challenging the Nigerian government’s human rights abuses and complicity in environmental destruction in the Niger Delta, a diverse group of communities came together to exercise their voice and hold the government accountable before the African Commission on Human and People’s Rights.
The case succeeded on putting the governments abuses on record, upholding the rights of affected communities, and forcing the government to cease its unlawful conduct, start investigations into abuses and undertake an environmental clean-up in the region.
Beyond achieving justice for affected individuals and communities, the accountability legal action can bring benefits to all of society by confirming the importance of the rule of law in regulating government actions, and in upholding domestic and international standards of human rights.
Example: James Katabazi v Secretary General of the East African Commission
In the East African Court of Justice, a group of activists, who had been wrongfully imprisoned before a military court in Uganda, succeeded in challenging their imprisonment on the grounds it violated the rule of law.
The judgement upheld the independence of courts and prevented future practices of the government taking the law into their own hands.
This combination of citizen engagement with a practical strategy to limit abuse of power makes it a powerful tool for human rights activists to achieve justice across society.
Legal action can achieve meaningful reforms of policies and laws which breach human rights or constitutional provisions.
A legal case can challenge an unjust policy, law or procedure and can lead to systemic legal change from which all citizens may benefit. In this sense, legal action does not just react to unjust practices, but is proactive, helping to create pressure to make a fairer system for all.
Example: Dhakal v Nepal
In Nepal, following a successful case brought by victims’ families, the Supreme Court ordered the government to change its policy of refusing to investigate past practices of enforced disappearances and provide remedies to victims. It also ordered the government to establish a truth commission to investigate instances of enforced disappearance. This created legal reform which benefitted society as a whole, not just the families who brought the case.
Successful legal cases can change how a law or policy is interpreted and applied. In this way, legal action can establish a point of principle which governments and corporations are required to follow. Such an outcome can provide clarity for future conduct and define the legal obligations of public or private individuals and organisations.
Example: Mwenda v Attorney-General
Facing restrictions on free speech and the imprisonment of government critics, the Ugandan Supreme Court upheld the constitutional right to freedom of expression. The court set out wide protections for the right to freedom of expression, preventing government from making further restrictions in the future, and ordered them to stop criminal prosecutions of political speech.
In this way, legal action can be invaluable tool in strengthening human rights protections in society more generally.
Even if unsuccessful, legal cases can shed light on information previously kept secret and enable truth to be heard. Court procedures often involve the compulsory disclosure by each party of relevant documents. This can mean that relevant evidence that is in the public interest can come to light.
This can powerfully promote transparency by creating access and bringing public attention to information that may be vital to addressing a human rights concern or promoting social change.
Example: Claude Reyes v Chile
After hearing a claim brought by a Chilean environmental organisation, the Inter-American Court on Human Rights ruled the right to access information was itself a human right which the State was obligated to provide access to information in all but exceptional cases. This paved the way for greater transparency across the Americas.
If you believe the government or a corporation are withholding vital information from the public, legal action can be a powerful tool in uncovering such information. This can then be used to hold government/corporations accountable in the public domain or through the legal process.
By increasing transparency and drawing public attention to a case, legal action can raise public awareness on a particular issue. If combined with an effective media strategy, legal action can focus public scrutiny on a problem and allow for debate.
In the digital age, high-profile coverage of a legal case can have as much, if not more, influence on achieving change than the courtroom process itself.
Example: The Rana Plaza Tragedy
In the Rana Plaza tragedy, a textile manufacturing complex was burned down due to poor health and safety standards, killing over 1000 Bangladeshi workers. Following the disaster, several cases have been brought against large clothing companies for their neglect for their workers’ health and safety. While many cases have failed due to complex subcontracting arrangements that big companies hide behind, the publicity and outrage created by the cases have led some companies to adjust their manufacturing practices.
If your objective is to secure lasting change in your community, it is not only the outcome of the individual court case that is important, but it is often the wider campaign for justice alongside a legal case that will be effective. You should therefore consider carefully how best to brief the media at the outset of a legal case, and how best to maintain their continued interest and involvement as the case progresses.
While legal action can be an effective way to secure justice for marginalised communities, there are circumstances in which bring a legal case may not be appropriate or capable of meeting your needs.
In deciding whether to bring a legal case, it is first important to consider the following factors.
Litigation often takes many months or years. Therefore, bringing a legal case may not be appropriate if you need a quick solution to an immediate problem.
Example: The Bhopal Cases
Despite occurring over 30 years ago, legal actions are still being pursued against Union Carbide for toxic gas leaks in India caused by their negligence. While some compensation has been awarded, this has been a long and exhausting process for victims.
The process of taking legal action can be especially long if there are multiple appeals to a court’s decision or you have to take cases to multiple different courts in different countries to secure justice.
Example: The Niger Delta Cases
The campaign for justice against Shell for its exploitation and abuse in the Niger Delta has span over 20 years, involving cases being brought before Nigerian, US, British and Dutch courts, as well as the African Commission on Human and People’s Rights. While this campaign has secured justice for thousands of victims, it has been a long, protracted process that is still ongoing.
While legal cases often take a long time to be resolved, courts often have the power to make emergency orders or take ‘provisional measures’ when responding to the urgent needs of litigants. This allows litigants to secure a temporary solution for an immediate problem, while pursuing the longer-term goals of bringing a legal case.
This is often vital for protecting litigants from harassment and intimidation, providing for their security.
Example: Protective Measures in the Inter-American Human Rights System
Across Latin America, the Inter-American Court on Human Rights has protected many environmental and human rights activists from imminent threats by ordering their governments to provide for their immediate security needs.
Nonetheless, if you do not have the necessary time to commit to bringing a legal case, it may be better to pursue alternatives to going to court.
In general, litigation is very costly, requiring significant resources to obtain effective legal representation and gather evidence.
However, there are a number of ways that claimants may be able to get financial assistance or support to take legal action. For example:
If you are clear on your objectives and believe legal action can help achieve those objectives, check what options are available to help you finance your case. Do not allow the cost of legal action stop you from pursuing your claim before you explore different ways to finance your claim.
For further information, see How Can I Finance my Action?
Litigation can create conflict between the parties. This is especially true if your case involves challenging the interests of powerful individuals/groups. Therefore, a group bringing a claim must be prepared to face public pressure, intimidating behaviour, and even physical danger.
Example: Threats to Environmental Defenders
Tragically, environmental defenders across the world, who seek to protect and conserve their community’s natural resources, are often targeted and killed when they stand up to powerful organisations seeking to exploit their land. And many more are subject to intimidation and threats.
Being aware of the risks involved in bring a legal case is essential to your safety and security. While the risks can be significant, they will depend on your circumstances, and there are often a number of strategies available to reduce your security risks.
Before bringing a legal claim, carry out a risk assessment to evaluate the risks in your situation. In this assessment, you should seek to balance your security needs with the potential benefits an effective legal claim could bring.
For further information, see How do I Deal with my Security?
Considering the time, expense and dangers that can be involved in bringing a legal claim, it is essential you only bring a claim that has a reasonable chance of achieving your objectives and securing justice for you and your community. This is especially important, as losing a legal case could make the situation worse for you and your community by strengthening the position of the other party.
For your claim to be successful in court, it must have a strong legal basis. This means your claim must involve a genuine entitlement to legal rights which have been breached by the other party. Equally, you must have the facts and evidence to prove your legal rights have been breached by the other party.
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While a strong legal case is often essential, this depends on your objectives and circumstances. Even legal cases that are unsuccessful in court can benefit communities and victims of abuse, by providing for transparency and greater public awareness.