Kenya faces numerous social, economic and ecological challenges. Dealing with these challenges is key to eradicating poverty and achieving international commitments under the Sustainable Development Goals.
President Uhuru Kenyatta recently highlighted the progress made in the quest to deliver on the Sustainable Development Goals. He also cited the obstacles Kenya faces.
Resource availability and commitment to the rule of law are two important prerequisites for the achievement of the goals and ensuring justice for all in society
The Constitution recognises that social, economic and ecological rights are part of human rights. Article 42 deals with the ecological right of a clean and healthy environment, while Article 43 covers socio-economic rights.
Despite their guarantee, enjoyment of these rights is faced with several hurdles.
Citizens have options of ensuring that their rights are respected, promoted and protected. When these efforts fail, they have a right to seek justice from adjudicative bodies — the courts.
Due to the nature of the ecological and socio-economic rights litigation by private individuals has limits for delivering justice.
The violation of these rights affects the larger public.
Strategic litigation is an important tool for helping secure social, ecological and economic justice. It involves using the law and litigation to address issues with wider societal impact beyond the parties before the court.
What makes it strategic is the intended impact of the litigation. This requires deep thought and determination of the most appropriate tactics to employ to achieve the desired goal.
This past week I had the privilege of discussing these issues at an international conference organised by the University of Nairobi and Oxfam to discuss strategic legal mechanisms that have been used in Africa to deliver socio-economic justice.
The conference recognised that law is an important tool for achieving justice. This, however, requires to be used creatively and not in its traditional sense.
Strategic litigation offers an opportunity to use the law to protect the rights of wider society, especially the poor and marginalised.
Case studies and experiences globally noted that for this to happen one requires a progressive judiciary. A judiciary that is bold and is willing to speak through its judgments decisively and objectively.
Joe Oloka Onyango has argued in a publication, When Courts Play Politics, that public interest litigation is an intersection of law and politics and places courts in the arena of politics.
Without judicial courage, strategic litigation cannot succeed.
Secondly, and as one of the keynote speakers noted, there is a need for a united and engaged community.
Such a community must be seen as a group of people who are committed to the cause. This is broader than the local community. They must be joined with social justice actors and other professionals who collectively build a community of practice.
Delivering justice for the wider society through strategic litigation requires public-spirited individuals and organisations.
If one reviews judgments from Kenyan courts on many ecological issues, for example, one will appreciate that progress has been realised only through the work of such public-spirited persons.
The celebrated work of Prof Wangari Maathai despite hurdles placed in her way about lack of legal right, also called standing, to bring public interest cases easily stands out. She has been joined in recent times by NGOs and communities in cases such as the petition against Lamu coal power plant plans.
While court action and supportive judgments are worth celebrating, it is important to realise that on their own they do not deliver justice. They must be implemented. The for Kenya is to build on the efforts underway and translate the progressive provisions of the Constitution into tangible and sustainable justice in all spheres of the ecology, economy and society.