Over the years, the International Budget Partnership (IBP) has documented civil society campaigns that have combined budget analysis with other advocacy tools to improve how public money is managed and how public services are delivered. One such advocacy tool is strategic litigation.
Taking the government to court can, however, be a risky and resource-intensive endeavor, so why do it? Well, in many cases litigation can be an effective way to get parties that disagree over how to use public resources to clearly state their positions before a forum. And, in light of the disturbing recent trend of government efforts to close political space for civil society, litigation may often be the most viable option for CSOs seeking social change.
We’ve seen how CSOs have used litigation to drive government action on a number of fronts, including:
- increasing public access to information (e.g., National Campaign for Dalit Human Rights (NCDHR) in India and the Center for Legal and Social Studies in Argentina);
- making or increasing specific allocations (Campaign on the Child Support Grant and the Treatment Action Campaign’s work to increase access to treatment for HIV/AIDS, both in South Africa);
- and compliance with legal and constitutional obligations (NCDHR and Asociación Civil por la Igualdad y la Justicia (ACIJ) in Argentina).
There are other factors that may make litigation an effective advocacy choice. One is that many civil society concerns fall within governments’ human rights commitments, and there is growing recognition of these rights in international law, as well as in national and municipal constitutions and legislation. This recognition has provided standing for CSOs to sue governments for failing to meet their obligations and led to a growing body of legal decisions to enforce human rights obligations, both of which increase the potential impact of litigation.
Court cases also often attract media coverage, drawing attention to your issue and increasing pressure on the government. You may not even need to actually file a lawsuit — if your organization has a reputation for using the courts to hold government to account, the “menace of litigation” may be enough to get government take notice and make the necessary reforms. Finally, when you win, the legal recognition of your position can be extremely powerful.
It is clear why CSOs are increasingly interested in pursuing legal action in their advocacy; however, embarking on litigation does pose some challenges and risks.
Potential Pitfalls of Strategic Litigation
Cost is probably the biggest factor to consider with litigation, as it can magnify other risks. Your organization must have either internal legal expertise or access to lawyers and, if the court decision doesn’t go your way, you may not only lose what you spent on the case but also be liable for the costs of the other party or parties. While some lawsuits are settled in a year or two, generally litigation is a lengthy process, with some cases taking more than a decade to be resolved. Most CSO’s will want to continue to campaign while the court process transpires, which can add to the costs.
Even if your legal argument is backed by sound evidence, you could still lose. Your case may come before a judge who opposes your position and thus rules against you. Or the judge may be unwilling or unprepared to decide on very technical issues and how they are integrated in other policies and priorities. Finally, judges are generally wary of overstepping their responsibilities of interpreting and ensuring compliance with the law by moving into the realm of making the law out of respect for the separation of powers doctrine, which allocates specific functions, duties, and responsibilities among the executive, legislature, and judiciary.
One risk of litigation is losing the case, another is that you may win but the remedy (the specific actions that the court orders the government to take) may not be what you sought. For example, in pursuing universal access to education, you may ask for more schools to be built to accommodate smaller class sizes and shorten the distances children must travel. But the court order may only say that the government has to provide access, which leaves open undesirable options like just putting more children into existing spaces. There is also the possibility that a legal victory may be undermined by poor implementation of the court order. A recently published IBP case study found that, following ACIJ’s legal victory over the City of Buenos Aires, the organization needed to draw on a host of other advocacy tools to ensure the court’s decision was implemented effectively.
As it circumvents the regular policy process, litigation can isolate particular decisions on the use of public resources without considering other needs and priorities. This can potentially distort choices about how to best use scarce funds. Finally, a lawsuit could potentially undermine efforts to establish more collaborative working relationships with government, though this is somewhat tempered by the fact that governments are not monolithic and a suit against one segment may not affect productive work with others. In addition, there are instances when allies in middle management within the government support changes that the litigation aims to bring about.
Eight Tips for Effective Litigation
Despite the risks, there are substantial potential benefits to litigation. To maximize the latter, and minimize the former, here are eight practical tips CSOs should consider when heading to court:
- Use evidence from your budget analysis and monitoring to strengthen your arguments for government action and counter government claims that a lack of public funds is the reason for poor or non-existent service delivery.
- To alleviate direct pressure on your organization, seek to bring on co-litigants.
- Keep up other advocacy activities while you are litigating — lawsuits are lengthy and you may get the results you want before the court decides.
- Mobilize the support of those who will be affected by the outcome of the case, this is especially important for implementation of positive decisions.
- Be prepared to build a strong foundation (i.e., paper trail, evidence, stories, and so on) for your case over time.
- Develop the skills needed to work with lawyers. CSOs need to bring their budget knowledge to their discussions with lawyers, and also understand the legal framework. In many countries there are organizations like legal resource centers that can help in this area, so seek them out.
- Understand how other advocacy activities (media, public pressure) might influence the courts and think carefully about how to best achieve your campaign objectives.
- Provide the court with detailed specifics about the remedy you seek to avoid winning the case but getting a weak or potentially ineffective remedy.
While litigating carries certain risks, the potential payoffs for civil society advocates are huge. The key is to be strategic in your strategic litigation. IBP will continue to explore how to use strategic litigation as an advocacy tool, and how to adjust when things don’t go as planned.
This post benefitted from a discussion on strategic litigation at the June 2016 meeting of members of a learning network of civil society groups that engage in budget analysis and advocacy in Barcelona, Spain. IBP convened the network meeting, and the discussion on litigation was informed by the insights and experiences of Dalile Antunez, co-director of Asociación Civil por la Igualdad y la Justicia (ACIJ, Argentina); Diana Guarnizo, research coordinator at Dejusticia (Colombia); and Jay Kruuse, director of the Public Service Accountability Monitor (PSAM, South Africa).