ICJ African Human Rights and Access to Justice Programme
Access to Justice Initiative
Case selection criteria, March 2002
Objectives of the Initiative

The African Human Rights and Access to Justice Programme (Access to Justice Initiative) was started in 2001 as a joint project of the Kenyan and Swedish sections of the ICJ. The overall objective is to work towards the incorporation of international human rights standards in national legal systems. This will be done through:

1. Support and strengthening the legal protection and enforcement of human rights under the rule of law
2. Focusing on strengthening legal institutions that will guarantee impartial and effective protection of human rights in the long term
3. Working with NGOs at the local, national, regional and international levels to carry out activities to strengthen legal protection
4. Using regional networks of NGOs for mutually beneficial cooperation in achieving the objectives of the programme
5. Shared resources, expertise, information, materials and tools with partner NGOs
6. Strengthening independent human rights advocacy, litigation and monitoring

Target countries for the programme
In East Africa: Uganda, Kenya, Tanzania, Malawi.
Regional contact point: ICJ-Kenya. Email: [email protected].

Southern Africa: South Africa, Mozambique, Namibia, Botswana, Zambia, Zimbabwe.
Regional Contact point: Kate Savage. Email: [email protected]

West Africa: The Gambia, Senegal, Burkina Faso, Cote d’Ivoire, Nigeria
Regional contact point: Institute for Human Rights and Development in Africa, The Gambia.
Email: [email protected].

Applications from non-target countries will be considered on an ad hoc basis.

Thematic Areas

The Initiative especially seeks to develop human rights jurisprudence in specific thematic areas: labour rights, women’s rights under customary law, the right to health and the rights of individuals with HIV/AIDS, and fair trial issues. Other cases involving internationally recognised human rights may be supported ad hoc.

Litigation

One of the key activities of the project is to support innovative litigation across Africa in the field of human rights. The Initiative defines ‘litigation’ as encompassing at least four different activities: pre-trial research, litigation before the national courts, subsidiary or adjunct actions to national litigation such as trial monitoring, and bringing cases to the international level.

A major contribution of the Initiative will be providing international legal expertise, in the form of expert opinions that may be used as lobbying tools or submitted as amicus briefs. The programme will assist in identifying experts and covering the cost for such expert opinions, up to $1,000.

NGOs eligible for support under the programme must:

o specialise in, or have specific interest in legal approaches to human rights work
o promote or advance the legal protection of human rights under the rule of law as their principle aim or objective
o not represent political parties and must be impartial
o implement and monitor international human rights standards in their own countries and regions

Application procedure/Administration
The Access to Justice Initiative will give modest amounts of money (up to $3,000) to defray expenses incurred in human rights litigation. This is not intended to cover the entire cost of litigating a case, but simply to contribute. Additional funding for a case may be available upon re-application and justification.

o Applications should be submitted by the 15th of each month to the regional contact point in your region. You will receive an acknowledgment of receipt from the regional contact point. Decisions will be made on the first day of the following month.
o Funding generally will be provided on a reimbursement basis. Where funding is approved, an advance of $1500 will be given upon signature of the partnership agreement. The remainder of the expenses incurred will be reimbursed upon receipt of evidence of costs in the form of invoices, receipts, and labour documentation, after expenditures have been made.
o narrative reports on the progress of the case must be submitted twice a year, by 15 May and 15 November.
o Financial reports must be submitted at least once a year, by 15 November or whenever a case is concluded.

The Initiative must restrict its support to case-related expenses.

Cases will be selected on the basis of the application below, which includes a detailed budget that indicates expected expenses such as labour costs, filing fees, transport costs, etc.

Institutions which receive support will become part of an ICJ network that will raise the profile of human rights. Cases supported under the Initiative will be followed up, compared, and, where permission is given publicised through the internet.

The following criteria apply for the initial selection of cases. Cases that meet this criteria will be funded within the constraints of the programme budget.

Subject matter Criteria:
Human Rights
Cases chosen at the outset should clearly involve human rights, as described by international treaties. Such human rights cases may take the form of:
- a challenge to legislation at the national or international level
- a challenge to a state action or inaction (for example, failure to regulate/punish the actions of private actors)
- a civil challenge to a private party that is violating human rights
- defence to criminal actions brought against individuals by the state. (Preference will be given to cases involving defence of human rights defenders.)

Breadth of Impact: ‘Test-Case’ Litigation
Cases with the broadest impact will be favoured; for example, cases that challenge laws (de jure violations), or widespread practices. Cases concerning individuals may be supported where the judgment can be held to apply to a class, or where a case can be argued to have preventive effects. .

Relevance of international law
Acceptance of international law by national courts is not a prerequisite, but it is assumed that all cases will be compatible with the principles of international human rights treaties and that treaty provisions may be cited in parallel with other authorities.

Applicability of ‘litigation theories’
The international standard of rights protection (where a consensus on such a standard exists) should be the ‘theory’ of each case. For example, in women’s rights cases, the theory supported by the programme will naturally be that women’s rights should be equal to those of men.

In areas of unsettled law where no clear consensus exists, such as standards of health care or treatment for HIV, theories are still evolving which will essentially define the rights at stake (i.e. on levels/types of treatment or accessibility of treatment/services: standards that are the ‘minimum core content’ of rights). The programme should support the development of a consensus on such standards through discussions with national-level partners and repeated litigation of such issues, and through provision of expert legal support.

Development and use of such theories will facilitate cases since the reasoning that undergirds the consensus on the theory will be accessible for use in argument. Where cases employing a certain theory have been won, comparative practice and precedents will be available to support further litigation in other jurisdictions.

Technical Criteria

1. Local partner must have the will, expertise and standing to pursue the case fully
2. Legal system must be functioning at a minimum level: how does the average case take? While complex, lengthy cases may be taken, there should be a mix with more straightforward, faster cases.
3. Political system must be such that it is not unreasonably dangerous to undertake litigation; analyse how much litigation has been done before, and how the state reacted. Where the potential case is based on challenge to a law, the situation should, during the pre-trial phase, be brought to the attention of legislation authorities, to encourage amendment of the laws before litigation begins.
4. Where individual victims are needed for locus standi, are they willing to pursue the case?
5. How much visibility does the issue to be litigated already have? Cases in which there is already advocacy through other means—public education, lobbying, a media campaign, etc, should be favoured. Alternatively, is there at least a network of human rights groups/activists who would be interested in the case and can help publicise it while in progress?
6. Geographical distribution may be a consideration.

Application for Support under the Human Rights Litigation Scheme

Theme under which the application falls:

[ ] Women’s property rights/customary law

[ ] Labour Rights [ ] Health Rights/HIV

[ ] Fair Trial [ ] Other (please specify)_______

Part A: Applicant Details

Name of NGO/Organisation:

Please describe briefly the chief activities of the NGO:

Address:
Country:
Telephone: Fax:
Email:

Please give at least two references of donors or partners who have worked with you.
1. Name of Reference:
Relationship with applicant NGO:
Email address:

2. Name of Reference:
Relationship with applicant NGO:
Email address:

Name of Attorney primarily responsible for the case:
Please attach c.v. for the above-named individual.

Please describe the litigation experience of this attorney (number of years in practice, similar cases handled):

Part B: Case Details

Case name:

Where applicable, please attach a signed authorisation form (power of attorney) showing that the attorney is authorised to represent the client in this case. If the case is being brought by the attorney or NGO directly, please explain grounds of standing.

1. What form does the action take? [ ]criminal defence [ ] suit against the state or a state actor [ ] civil action against a private party

2. What tribunal has jurisdiction over the case?

3. How broad is the potential impact of the case, and the importance of the precedent being set? How many people are likely to be affected, directly or indirectly?

4. What is the precise nature of the human rights violation alleged? (check all that apply) [ ] statute that violates human rights [ ] state practice that violates human rights [ ] practice of private parties that violates human rights [ ] constitutional conflict with international human rights standards [ ] other (specify)___

5. What international human rights treaties may be applicable? How may these be used?

6. What may be the risks or unintended consequences of the case (e.g., physical or political)? Why is this a good time to bring the case?

7. Present stage of the case: [ ] background research [ ] pre-trial
[ ] submitted to court of first instance, awaiting trial or judgment [ ] on appeal
[ ] submission to international body [ ] other (specify)_______

8. Remedies sought (check all that apply): [ ] monetary compensation [ ] declaratory order [ ] other (specify)

9. Include a copy of any reports or research that your organization has done on the case already—electronic copies are preferred.

10. Proposed course of action: Please outline the legal steps/action to be taken.

11. Brief assessment of the legal system in which the case will be litigated: How independent is the judiciary? Give an estimate of how long is the case likely to take. How do you assess its chances of success?

12. Are there other forms of advocacy (public education, political lobbying, etc) related to the issues raised in this case, currently in progress or planned by you, your organisation or other actors?

13. Timetable for the case: Please explain if the requested support is required within a particular time.

Part C: Cooperation/Support requested from the Access to Justice Initiative

Core support for the case

Check all that apply, but see note on amicus.

[ ] financial support: please complete budget below

[ ] expert legal analysis of the legal situation (e.g. whether legislation complies with international standards). Please explain the issue:

[ ] expert legal analysis of the facts of the case. Please explain the issue:

[ ] amicus briefs. What are the requirements for amicus in your jurisdiction? (e.g., must they be members of the bar?)

N.B. The ICJ, for ethical reasons, cannot fund both amicus briefs and direct case support for the same case.

Facilitation/other cooperation or resources
Specify the form and extent the cooperation should take.

[ ] provision of written materials, e.g., are there copies of treaties, articles, legislation and judgments from other jurisdictions that it would be helpful for the Initiative to provide?

[ ] trial observation. If you anticipate requiring external trial observers, please explain:

[ ] capacity building. If your case is supported, would it be appropriate for the Initiative to hold a workshop on litigation for lawyers in the organisation, or at the national level generally? Please explain.

[ ] Judicial colloquia. Please specify what issues would be helpful to judges in your jurisdiction.

Part D: Financial Support requested from the Access to Justice Initiative

Project Budget in US dollars

Labour Costs (up to $1,000)

Filing fees, transport costs, collection of evidence, research costs, other (up to $2,000, please itemise)

Total (maximum $3,000)

Are you receiving funding for this case from another source ? Please specify.

Please indicate the total overall budget for the case, from all sources.

The Initiative may provide support for expert legal opinions, up to $1,000, where the applicant so requests.

ICJ-Kenya ICJ Sweden
Contact Person: Winluck Wahiu Contact Person: Stellan Garde
Tel: +254-2-57580/1 Tel: +46-8-239700
Fax: +254-2-575982 Fax: +46-8-201049
P.O. Box 59743 P.O. Box 2039, SE 103 11
Nairobi, Kenya Stockholm, Sweden