This article was first published on Open Global Rights.
In Kenya, Guatemala and Brazil, courts have defied presidents and shaken up politics—is court-centric advocacy one of the few remaining avenues to legitimately challenge unlawful measures?
In recent years, as nationalist demagogues have come to power spewing contempt for legal norms, many have begun to question the value of human rights and of legal action as a tool to defend them.
Worldwide, the rights framework helped mobilize resistance to dictators and freed political prisoners during the Cold War, but, some say, it can’t tackle the more complicated problems of an increasingly stratified, and globalized, 21st century. Rights litigation—once praised for striking down legalized racial segregation in the United States and for challenging South African apartheid—has come under particular criticism for its cost, its elitism and its seemingly endless delays.
So, it came as a surprise when recently court judgments shook political foundations in three countries. While addressing distinct issues in very different national contexts, these decisions suggest that obituaries for rights lawyering may be premature.
In Kenya, the Supreme Court nullified the results of last month’s presidential election, which had appeared to grant President Uhuru Kenyatta a second term in office. The Court ordered a new vote within 60 days. Hailed by the political opposition and condemned by Kenyatta’s supporters, the judgment affirmed the importance of electoral integrity as a benchmark for democratic legitimacy. And it demonstrated the willingness of judges to assert their independence in rejecting the results of a vote that had been generally praised by international observers.
Not long before this, Guatemala’s Constitutional Court barred President Jimmy Morales from expelling the respected leader of a United Nations-backed anti-corruption commission. The court’s defiance of a president intent on putting his own interests above the nation’s (he is facing criminal investigation for alleged campaign malfeasance) resonated widely in a country whose judicial institutions have long been weakened by political violence and high-level corruption.
Also, a federal judge in Brazil temporarily blocked a presidential decree that threatened to open broad swaths of the Amazon forest to mining. Though provisional, the court’s injunction advanced the claims of indigenous communities and environmental activists against the entrenched economic power of agricultural, ranching and mining industries.
By themselves, none of these cases will end corruption, reverse inequality, or ease the mass frustration that has given rise to illiberal populism. But each, in its own way, has showed that aggrieved parties—whether voters dismayed by counting irregularities, citizens seeking to rein in overreaching officials, or a professor concerned for the rain forest—can prompt courts to halt or overturn wrongful acts of great consequence.
Given that they were just issued, the full implications of these decisions have yet to be felt. It is possible that further litigation—or other developments—may frustrate their implementation.
To be sure, not all litigation is alike. Seeking to overturn a single act—whether a presidential decree or an election result—is different, and less ambitious, than reducing hunger, poverty or homelessness. Success in last week’s cases in no way suggests that lawsuits are always necessary or even desirable pathways to change.
Nonetheless, when strategically deployed as part of a comprehensive advocacy campaign, litigation in defense of rights can make a difference. Ideally, such a campaign is driven and owned by those with most at stake, involves lawyers but also many other actors, considers the political and social environment, and deploys the full range of tools available, from parliamentary lobbying to community building to street protest.
And while litigation is just one tactic in a broader mosaic, it is special.
The judgments of courts are usually binding: the parties are obligated by the force of law to respond, even if they don’t always do so. There is no similar obligation to respond to a petition or demonstration. Moreover, the process of articulating claims, and securing rulings, framed in the language of legal entitlement and responsibility, invokes, reaffirms and, at times, alters society’s most considered and explicit promises to itself. Court proceedings are formal affairs imbued with the full authority of the state. Judicial decisions derive their legitimacy, in part, because they are grounded in evidence and transparent reasoning, not simply ideology or political preference. And while legislation speaks in the general language of policy, it is through litigation—the crucible of a concrete “case or controversy”—that the implications of legal provisions are critically examined as they are manifested in the practicalities of real life.
Perhaps the most compelling evidence of rights litigation’s value is the extent to which some have gone to criticize, short-circuit or silence it. It is precisely because legal action can annoy or embarrass, constrain decision making, compel redress or modify policy or practice, that regional or international human rights courts, as well as national courts addressing rights issues, have come under withering attack from those caught in their crosshairs.
In recent years, we have witnessed an array of challenges to judicial bodies. From the shutdown of the Southern African Development Community tribunal in 2011 following a decision challenging Zimbabwe’s expropriation of land; to heightened criticism of the European Court of Human Rights in Britain, Russia and Switzerland; to concerted pushback against the Inter-American Commission of Human Rights, states across the globe have made clear that, at times, rights litigation may be unwelcome precisely because it can’t be ignored. President Trump’s attacks on the US federal judiciary for blocking proposed immigration bans are a particularly extreme confirmation of this fact.
Litigation to defend human rights can’t do everything. But as civic space in legislatures, the media, and the political stage narrows, court-centric advocacy is one of the few remaining avenues for legitimate challenge to, and authoritative condemnation of, unlawful measures. The recent stunning expression of judicial power suggests that, under the right circumstances, legal action can still pack a punch.
James A. Goldston is the executive director of the Open Society Justice Initiative. Find him on Twitter: @JamesAGoldston.
Photo by Heather Mount on Unsplash
