Why Public Interest Litigation Deserves our Attention

The ‘Public’ is you, the individual among a community that may be affected by a policy your leaders create. The ‘Interest’ is the ‘why’; and the litigation/defense is the ‘how’.

Public Interest Litigation/Defense (hereinafter PIL/D) is litigation or defense for the rights and equality of the people (public). It is the caution and advocacy/activism that concerned law keepers, keepers of justice and any authority must exercise to protect the rights, freedoms, dignity etc. of persons that may be affected by government policies or other individual actions. This article will center on general government policies. 

Here are some of the reasons why PIL/D is important today:

  1. PIL/D is in the interest of vulnerable people/sections of people in our society.

Recently, the Uganda Government issued a statement wherein it declared its intention to tax landlords, share citizen information among government organizations and license sand mining activities.

These policies do not usually come from legitimate sources even if the reasoning behind them may be from legitimate concerns.

For instance, in as much as a country survives on tax to execute development projects, Uganda’s unlimited borrowing schemes, corruption, and nationalization of private entities, poor service delivery and poor maintenance of infrastructure is increasing social injustice.  The levels of poverty force scores of people into illegal, unregulated and often legal but costly ventures for the common man.

A PIL/D advocate will examine the effects of, rationale behind and the parties that will benefit from an activity.  If any or none of these favour the vulnerable, locals or those to be affected, a PIL/D advocate will disclose to government and concerned authorities such findings as well as possible solutions. It is up to the government to rectify its position, in favour of the said persons.

Example 1

Constitutional Petition No.64 of 2011 [2015] UGCC 14 addressed among others, a historic misappropriation of diction in favour of Persons with Disabilities.  The Uganda Penal Code Act, Cap.120, since inception, had defined persons with disabilities as ‘imbeciles’ and ‘idiots’.  The Petitioners, Centre for Health, Human Rights and Development argued that despite their mental challenges, Persons with Disabilities in that category and others were not ‘idiots’ or ‘imbeciles’.

In the interest of the public, the Petitioners caused to correct the Uganda statutory wording to restore the dignity of PwDs as well as to rectify the unconstitutional contradiction between both laws. Here, the vulnerable Persons with Disabilities regained their dignity in the legal system through PIL/D efforts.

  1. PIL/D preserves status quo, where necessary and appropriate, or until a better or fairer option is found.

Imagine vacating your ancestral homestead in favour of a mega-government project only for government to abandon its plans and opt for another location, leaving you homeless and an alien altogether.  Will you still claim ownership and return, despite re-settlement?

A good example in Uganda is the Pygmy tribe habitants of the forest cover in South Western Uganda and the Congo.  This tribe is native to forests and especially in what government gazetted as national parks in that region.  The Pygmies are so marginalized that they cannot freely and wholly exercise their cultural identity that entirely depends on forest/mountains.  They were moved into localized dwellings despite their preference for caves.  The Pygmies can only live in their ancestral home with government permission!

What is more appalling is the fact that the Pygmies preserved forests for ages only for the settlers and users of Pygmy land to turn them into farms in some areas, steadily destroying the forest cover.

Many PIL/D in their favour have not yielded much, but they have at least advocated for better policies on how to handle the Pygmy matter and brought to that knowledge of what’s been happening to this community to the public. Hopefully, in the future, when better policies are developed and executed, the Pygmies may receive their identity like they ought to.

  1. PIL/D encourages accountability on state matters, involves the public and ensures citizen accessibility to the lawmaking process of the country.

Assuredly, governments often dictate policies and expect the citizens to cooperate, albeit gullibly. PIL/D therefore breeds accountability practices to ensure that the state policies favour the citizens and not the state drivers (read greedy leaders) entirely.

  1. PIL/D establishes regulatory principles on how governments must act while serving the people.

PIL/D focuses on the marginalized people. Sometimes, the number of these marginalized people does not matter as long as the activity a PIL/D is challenging is a genuine concern of the marginalized group in the public.

PIL/D is different from the pro bono services lawyers offer, however related they appear to be. The nature of the cases and the people represented by PIL/D advocates is cohesive, in conclusion. Because PIL/D represents the marginalized, Courts in democratic governments have emphasized the importance of audience to the litigants and defendants so as to encourage inclusivity in the national policies.

‘…Everyone has a right to bring an application and Court should determine it judiciously…’ Deputy Chief Justice of Uganda, Justice Alphonse Owiny-Dollo.

This article was written by our Feature Columnist, Atuhairwe Agrace, for our weekly law newsletter, The Deuteronomy. To contact Agrace, write to her on zoyahirji@gmail.com. To receive The Deuteronomy in real time, click HERE.
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