Promoting Human Rights & Rule of Law in South Africa
27 August, 2012
On 21 August 2012, the Zambia AIDS Law Research and Advocacy Network (ZARAN) and Southern Africa Litigation Centre (SALC) jointly hosted a strategy workshop with lawyers in Lusaka, Zambia. The workshop was made possible with the kind assistance of the United Nations Demoracy Fund (UNDEF).
The key objective of the workshop was to work towards building a pool of lawyers who would be willing to conduct public interest litigation on health?related rights. The workshop was attended by a range of role-players in the field of public interest litigation in Zambia, including the committees of the Law Association of Zambia, the Ministry of Justice, the University of Lusaka, the International Justice Mission, the YWCA and YMCA, the National Legal Aid Clinic for Women, the Human Rights Commission of Zambia, the National Institute of Public Administration, the Zambia Law Development Commission, Women and Law in Southern Africa and the Legal Aid Board.
The keynote address was given by the Chairperson of the Zambian Human Rights Commission, Mrs Pixie Yangailo. Mrs Yangailo emphasised that the right to health should be interpreted in a broad manner, looking at physical and mental health and social well-being. In addition, the right to health embraced a range of socio-economic factors including food, nutrition, housing, safe water and sanitation. Mrs Yangailo noted that Zambia’s current Constitution does not guarantee the right to health and expressed the hope that the right would be included in the final Constitution. Mrs Yangailo emphasised the need to ensure accessible health facilities without discrimination, especially to vulnerable and disadvantaged groups and in rural areas. She indicated that litigation, when properly applied, can be an effective tool to protect rights and that there is a need to develop a cadre of public interest litigation lawyers in Zambia. Since many do not have access to the courts, public interest litigation provides a useful avenue to improve access to justice, reform laws, hold government to account, raise awareness and save costs. Mrs Yangailo concluded that she looks forward to the day when the Human Rights Commission can successfully partner with organisations in litigation.
Chipo Mushota Nkhata, a lawyer at ZARAN, reiterated that, whilst it is possible to litigate on the strength of the provisions in the current Constitution, it is important to ensure that the final Constitution’s provisions are properly enhanced to protect rights. Ms Nkhata highlighted a range of areas in which litigation can be used to protect the rights of people living with HIV from discrimination and improve their access to health care services. She noted that some work is being done with legislators, magistrates and judges to raise awareness about human rights and HIV and strengthen their ability to promote rights within parliament and the courts.
Ms Nkhata emphasised the need to create a body of human rights jurisprudence in Zambia. This requires increased training of lawyers on human rights, including at the law degree level.
Participants highlighted the need to sensitise magistrates and judges to ensure that they award costs in public interest litigation cases with sensitivity.
Paul Mulenga, an attorney at AM Wood & Co, and convener of the Human Rights Committee of the Law Association of Zambia presented on the challenges faced in human rights litigation. He also highlighted the opportunities available to lawyers interested in public interest litigation. Mr Mulenga, who was the attorney in the key Zambian HIV discrimination case, Kingaipe v Attorney-General of Zambia, noted that lawyers and organisations are able to receive good support from local and regional organisations for human rights litigation. Mr Mulenga discussed some of the challenges faced in public interest litigation – access to courts; locus standi of organisations; receptiveness of adjudicators to constitutional arguments; capacity of litigants to engage lawyers; long-term and short-term implications of litigation and the challenges related to securing expert evidence.
Participants further discussed a range of concerns related to litigation – including delays in receiving judgment from the courts in public interest cases, lack of judgments which recognise international law; the small pool of lawyers willing to litigate on human rights issues; difficulties in the enforcement of judgments and choice of appropriate procedural remedies; and ethical issues. Participants noted that even where public interest cases were settled, the public discussion generated by such cases and through the media can lead to positive change such as law or policy reform.
SALC presented on the extent to which litigation has been used to protect and promote health?related rights particularly for marginalised and vulnerable groups in Zambia. The presentations focused on the use of litigation in the region to protect the rights of people living with HIV and sex workers, and sexual and reproductive health rights. These presentations highlighted regional case-law on health?related rights which can be used as a resource for litigation in Zambia.
The afternoon session discussed how participants could provide support to local lawyers who engage in public interest litigation. Landelani Banda, convener or the HIV committee of the Law Association of Zambia, chaired the discussion. Recommendations by participants include:
- Mapping institutions and individuals interested in litigating health rights in Zambia.
- That the Law Association’s Practitioners’ Committee revise some of its rules to facilitate public interest litigation, including creating guidelines for applications to the committee when requesting standing for lawyers based within organisations.
- Engaging the Chief Justice to issue a practice direction on allocation of costs in public interest cases.
- Organisations should work in partnership with each other on issues and cases.
- Lawyers who take up pro-bono cases should prioritise these cases and not give them to junior lawyers to attend to. In this regard it was noted that incentives could be created, such as recognising lawyers who engaged in pro-bono work, or providing training and peer-support to such lawyers.
- Organisations can support lawyers who take on cases on a pro-bono basis, by providing research and media support.
- Human rights courses should be compulsory for law students at university.
The Human Rights Commission indicated that it could assist with the identification of issues for litigation, thus enhancing its mandate to promote human rights. The Commission also indicated that it could focus on ensuring that international treaties, to which Zambia is a signatory, are domesticated.
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