The politics behind growth of public interest litigation

After the promulgation of the Constitution in 2010, the advent of public interest litigation began. Public Interest Litigation is defined as the use of litigation, or legal action, which seeks to advance the cause of minority or disadvantaged groups or individuals, or which raises issues of broad public concern.

Public interest Litigation is a science in the sense that you must first identify the public issue that is involved; strategically and artfully carry out research about the issue even before you start building a case.

The research design must be informed by socio-legal studies of public interest law campaigns and to scrutinize both oral and documentary evidence in order to produce innovative and tactical pleadings that will withstand any challenge. In Kenya many public interest litigation cases do not go far because little due diligence and industry go into coming up with public interest cases.

Success rate

However, the effectiveness of the public interest litigation is never measured by the success rate or the failure of public interest cases. There are a number of cases that get dismissed but in the ultimate bring tremendous changes in the society. India for example has witnessed unprecedented judicial populism that ostensibly sought social and economic justice for the poor. The Indian Supreme Court's procedural and jurisprudential innovations revolved around the violation of constitutional rights, leading to a formidable rights discourse in favour of direct judicial access to ordinary citizens.

These innovations included the relaxation of the standing rule and other procedural; expansion of the substantive meaning of right to life to encompass broader matters of social and economic empowerment and human dignity. The other issues that the Public interest cases targeted included freedom from indigence, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from massive financial, commercial and corporate oppression. The Supreme Court of India unlike our Courts would even act on newspaper reports or letters to declare rights of the citizens. It revolutionized public interest litigation and spoke to power directly on behalf of the people of India.

Public litigation

The political impact of the Public interest litigation is huge when it is properly undertaken. The growth of public Interest Litigation in Kenya has sent chills down the spines of the Executive, Legislature and Constitutional commissions  both of whom don't have the luxury of drawing policies that are anti-people and contrary to the Constitution. The failure by Government functionaries to deal with a resurgent Judiciary under the current Constitution has led to the palpable anger towards the judges. 

The Judiciary must however guard against the abuse of Public interest Litigation to enforce private rights. As the public interest litigation takes root in the Country many litigants who have cases that have nothing to do with public rights flood the courts with cases that are better adjudicated as normal cases in the respective Courts. The Courts must also guard against rise of professional Litigants who have become guns for hire for individuals who have scores to settle with big corporate entities so that the purity of public interest cases is not tainted or defiled by charlatans whose interests are basically commercial.

Our Courts must continue patrolling the borders of the Constitution with a view to creating a new regime of human rights, democratization of access of justice, fashioning new kinds of reliefs, judicial monitoring of state institutions and devising new techniques of fact-finding.

By doing this they will not just be anchoring and developing a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community but also promoting a just society. Those who are filing these cases must also not be discouraged from doing so by award of costs which conservative courts usually employ to put road blocks on the public spirited litigants.

Mr Mwamu is a former President of East Africa Law Society and an Advocate of the high Court of Kenya