The Nation, Malawi
Published 1 February 2023
By Anna Mmlai-Chalmers
If you or your organisation have been involved in litigation, you are undoubtedly aware that litigation is a lengthy process. This is a universally accepted reality, although it really should not be so. What is rarely discussed is the courts’ role in lengthening public interest litigation matters through delays in setting hearing dates, issuing judgments and adjournments of hearings. The silence on this is understandable because who wants to pressurise their ladyships and lordships when we are all pursuing one goal, a wholly independent judiciary? Plus, for community organisations, the court is our last resort, we go to court after having tried everything under the sun to seek justice to no avail, and the court is our last hope; we can respectfully wait.
Let’s take a few examples from the Southern African region where SALC works to show how long civil society organisations and communities had to wait for justice. In Botswana, in a reasonably quick turnaround through two courts, it took five years for a court case about the registration of an LGBTIQI+ organisation, LEGABIBO, to be finalised. Currently, in Malawi, Nyasa Rainbow Alliance has been waiting for five years to get its registration case heard in court; so far, it has taken years to constitute a bench, the hearing has been adjourned three times, and we have no date yet for the first hearing. In Eswatini, the organisation Eswatini Sexual and Gender Minorities (ESGM) was refused registration in September 2019, the case was heard in October 2020 and judgment was handed down in April 2022. They now await the setting down of an appeal date. The irony in these three cases is that they are simple judicial review applications, which should have meant they were finalised relatively quickly.
CSOs respectfully acknowledge the resource limitations that the judicial system is embattled with. However, the impact these delays have on the organisations, individuals and communities involved in the cases is often overlooked. Granted, cases like those above may not be criminal matters where the accused faces restrictions on liberty. Still, in such constitutional matters, their rights continue to be violated while they wait for justice to take its course.
The examples discussed above are of public interest, involving highly stigmatised groups of people being LGBTQI+. Often, the organisations, staff, and litigants experience public persecution, judgment and rejection, especially if the case has attracted media attention. In the end, delays in assigning hearing dates and issuing judgments may deepen negative public opinion, fuel homophobia and transphobia and strain the limited resources of CSOs. Wasted legal and travel costs are often incurred when hearings are delayed without notice. The delays are not only frustrating, but they can also result in the isolation of the CSOs involved in the case. Only recently, the idea of using the courts to affirm rights was uncommon and often not well-received by stakeholders, including national NGOs and government officials. Taking the government to court is largely frowned upon in most African countries, akin to talking back at adults or elders. Therefore, actors are often seen as unpatriotic, disloyal, and deserving of rejection, isolation and zero funding. Hence, it can be a very long, lonely path without allies.
In many countries, only individuals who can prove that their rights have been violated can approach the courts for redress. But their suffering during the litigation process is not given the attention it deserves. Although all members of the said community experience the injustices brought before the courts, those whose names appear in the court papers are at the forefront of societal and familial prejudice, especially where anonymity was not requested before the courts. As a litigant, you risk losing your job, your safety is threatened, and your mental health is under strain. The individuals who have volunteered to be the face of public interest litigation would need psychosocial support; a need often not planned for nor brought to the court’s attention. The lawyers explain the litigants’ role and what it means, but their immediate psychosocial needs are seldom acknowledged throughout the legal process.
In conclusion, you may ask why we even approach the courts if it is such an exhausting and belabouring process. The answer is simple, for the public good. As SALC’s deputy director said during the Justice Delayed, Justice Denied Webinar, “We are not doing it to tick boxes; we are doing it for the benefit of a larger society”.
This article is part of the webinar on Justice Delayed, Justice Denied Webinar hosted by SALC on 25 October 2022. Watch the webinar here.
Find more resources on public interest litigation and advocacy on our website www.southernafricalitigationcentre.org
By Anna Mmolai-Chalmers, SALC’s Research and Advocacy Officer, Equality Cluster