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Guides To Impact Litigation By Sesugh Akume

‘If you see something that is not right, not fair, not just, you have a moral obligation to do something about it.’

~ John Lewis

‘Our lives begin to end the day we become silent about the things that matter.’ 

~ Martin Luther King, Jr

We can all accept that the country is not working. The question is why isn’t it? Some say it’s ‘the system’. But what is this ‘system’? The system is a combination of terribly bad laws or obnoxious provisions in our laws, bad policies and practices all locked down, now a way of life. This, aside from wicked, incompetent rulers at all levels.

The laws are deliberately designed to make wrongdoing and evil lawful, and therefore legally correct, even if morally not so. Meaning, a thing could be wrong and detrimental to the society but very proper in the eyes of the law, because it is provided for in the law and/or a policy which has been in place since forever. As long as these institutional and systemic injustices remain, much of what we do or complain about would remain. One way of addressing this is through public interest litigation.

Why public interest litigation when there is the legislature to correct the anomalies? First, from experience, the legislators are not any different. They too benefit from the mess and/or are unwilling to rock the boat. Changing legislation also takes time, and can be opposed by vested interests. A more sure way is to get the courts to wade in.

Black’s Law Dictionary (6th Edition) defines ‘public interest’ as: ‘1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake especial an interest that justifies governmental regulation.’

Public interest litigation, impact litigation or strategic litigation, therefore, is the practice of bringing up lawsuits intended to correct wrongs and effect societal change. It is one way for the people ask the court to ensure that a particular law (or perhaps a part/parts of it), a policy, practice, etc that is not correct, unfair or unconstitutional. Each and every provision of a law or practice must align perfectly with the Constitution to be valid and to stand.

If, therefore, you feel uneasy about something, you sense that it’s not right, is harmful, detrimental, is unjust, excludes others or confers undue advantage to some (including those in power) above others, etc, know that you are possibly correct, and there is a way it can be addressed, weighing it against the Constitution. Be sure that there is something you can do about changing this anomalies by approaching the courts. And you don’t need to be a lawyer yourself to do this.

Many of us take the gift of being able to read and write for granted. We usually take the gift of being able to read and understand for granted. It is a great resource. We further undermine the power we have to effect needed changes to make our society a better place.

First, everybody ought to have a copy of the Constitution on their phones and/or other devices. There are free, downloadable versions online. Everybody should find time to once in a while read it or at least parts of it. Or to refer to it often to confirm information. A legal dictionary can also help a great deal.

Every single practice in Nigeria is anchored on a law or a provision of law. If you see something wrong, rest assured, there is a law encouraging it. Sometimes, the practice is an abuse of what is written down. If possible, find the law and read it. Don’t be afraid, you will understand what you read, and see for yourself that the provisions are wrong, or the practice is an abuse of what is written. These are the roots to address.

Approach a good lawyer to express your concerns and why you think a practice is wrong. Most of us have family and friends who are lawyers. Some will be most likely willing to help out. It will be best if you have also done your home work to identify what could possibly be wrong or what you found out in the course of interrogating the matter, if you can. 

To be honest, forget about what we see on TV, litigation costs money. Even if the lawyer is kind to not charge professional fees for their services, a lot of money still goes into this by way of producing/reproducing documents, filing costs, activities that lead to the suit happening, etc. If you can, financially support people/lawyers taking up public interest litigations, it goes a long way. 

Litigation also takes time, effort, energy, and is gruelling. It can also be slow, draining, and boring. This is not to scare anyone, but to state the facts from the onset. But it is totally worth it.

The lawyers build and plan the case. From what is wrong, they already know what to do and how to go about it. They know which court to approach, as there are different types or levels of courts; what means/format/approach to bring the lawsuit to the court, and also develop the strategy on how to approach the matter. They determine who the plaintiffs (the institutions and/or people you are suing in order to correct the wrong) are, and also draft the briefs before filing. The plaintiff in these matters and in this particular context is called respondent.

A key aspect of the brief is the verifying affidavit of the person(s) bringing the suit who in this context is called the applicant. Here, you need to help out with all the facts of the matter. What you noticed that is wrong, why it is wrong, and why allowing things to continue the way they are is detrimental. Your lawyer will help put it in the language the court will understand, but you have to help the lawyer help the cause.

Everybody has to memorise and know what the landmark Supreme Court judgement in the matter of Centre for Oil Pollution Watch v NNPC is all about. This is critical! It’s full citation is Centre for Oil Pollution Watch v NNPC [2019] 5 NWLR (Pt. 1666) 518 — NWLR stands for Nigerian Weekly Law Report. In this case the Supreme Court said in matters of public interest, ANYBODY at all has the right and power to sue, and should be allowed to do so.

Before now, the court would say only a person affected personally, directly can sue (what lawyers call ‘locus standi’ or the right to sue) and even at that, such person would need to prove satisfactorily why and how they are affected. Now, no more. Anybody at all can approach the courts with full authority even if they are not direct victims. This opens the gates of the courts to be flooded with all manner of suits to correct the wrongs and injustices we find everywhere in our society.

As the matter begins, is going on, and up to the point it ends, never neglect to write and share informative/enlightening material about the lawsuit both with the media and the larger community using every means available, social media inclusive. These are not endeavours to take in silently in the dark.

In my experience, I found something wrong with the fact that governors appoint local government councils, as against regular local government elections held, and in a predictable manner. Why aren’t governors and state executive councils also appointed? I wondered. Why isn’t there ever a caretaker or transition president? It turned out the Benue State Local Government Law 2007 in sections 3 and 21 say the governor can appoint caretaker/transition administrations. But weighing that against the part of the Constitution that speaks about the local government system, section 7(1) says local government councils have to be democratically elected. The violation was therefore clear. No law should contradict the Constitution.

The state’s Electoral Law 2007 also deliberately omits to mention when elections should hold before the term of the incumbents expires, so that when it is over there would be continuity. This gap was exists in the state law but we all know such gaps are not allowed for any other elections. Why? 

I followed all the steps discussed above. We approached the court some time last year, and on 21 July, less than 2 weeks ago, Justice W I Kpochi of the High Court of Benue State ruled in his judgement that I lacked the locus standi to approach the court, seeing as I wasn’t the only one affected, or showing proof of how the status quo affected me personally. From the above, it’s clear that this is not correct. I am appealing this judgement at a higher court. This is another reality check. Things may not always go straight as expected, the first time. Be prepared. 

The judge also said seeing as elections have been conducted and there are no more appointed local government officials, the suit had been overtaken by events. Again, not correct. The good thing, however, is, this suit forced the state government to conduct local government elections even during a COVID-19 lockdown. It’s why these suits are called ‘impact litigation’. We may not have gotten what we want yet, but the impact can’t be denied. Imagine what would be when what we want gets done!

There are other such lawsuits both in the well of the court presently, including the Federal High Court, and others to be filed soon. This is doable, and a way to correct the system. As long as this rotten system is not disrupted we shall complain till we die and hand over a broken, unjust system to generations yet unborn. May this not be.

Sesugh Akume, a public policy analyst writes from Abuja. He tweets @sesugh_akume, and is reached via [email protected]

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