Is Court the Answer? ARASA Annual Partners Forum 16 April 2014 Anneke Meerkotter Southern Africa Litigation Centre T: +27 (0) f: +27 (0)

YES & NO Is ground advocacy moving alongside strategic litigation? Case study: – Freedom of expression – People v Paul Kasonkomona (Zambia) – Freedom of association – LEGABIBO case (Botswana) Southern Africa Litigation Centre T: +27 (0) f: +27 (0)

Recent examples of strategic litigation Litigating for policy change – Botswana: Right to ARVs for non-citizens in prison – Zambia: Right to food for prisoners living with HIV Litigating to recognise and protect the rights of marginalised populations – Malawi: Judicial review of mandatory HIV testing of sex workers – Botswana: Judicial review of refusal to register LEGABIBO Litigating for individual damages but with broader objectives – Zimbabwe: Mildred Mapingure case – failure of State to take steps to prevent pregnancy after rape – Namibia: Coerced sterilisation of women living with HIV

Litigation in response to crisis Litigation to defend rights versus State persecution – Zambia: Paul Kasonkomona case – Zambia: Kapiri Mposhi case – Swaziland: Maseko and Makhubu case

Responsive v pro-active litigation Responsive litigation Facts of case not always suitable to creating good precedent Criminal trials costly, protracted, draining on resources of organisations Individual risk is great Need advocacy on ground to support individual access to justice and raise broader issues so that victories have impact beyond case Pro-active litigation Allows opportunity to prepare adequately and find correct facts and research in support of arguments Less costly if application Requires advocacy on the ground to ensure implementation of decision and raise awareness of nature of case

Advocacy & strategic litigation Start with advocacy first Form partnerships with range of stakeholders Engage key role players extensively Build a paper trail Inform the country about the issue and the rights involved Sustain advocacy Litigation as last result – risky! Monitor whether judgment complied with

Discussion What are your experiences of litigation? How did advocacy support what you were asking from the court? How did litigation support your advocacy objectives? What works? What does not work?

People v Kasonkomona Paul Kasonkomona was arrested on 7 April 2013 after he appeared on TV arguing that the rights of sexual minorities should be recognised in order to effectively address the HIV epidemic. He was eventually released on bail on 11 April He was charged under section 178(g) of the Penal Code which criminalises “every person who in any public place solicits for immoral purposes”. The arrest and prosecution came in the midst of escalating anti- gay rhetoric by politicians, religious leaders and police in Zambia. The High Court refused to hear Kasonkomona’s constitutional application requesting a determination of the question whether the views expressed by him are protected under the right to freedom of expression. The trial was frequently delayed and Kasonkomona was eventually acquitted on 25 February The State has since appealed this decision.

People v Kasonkomona

Has advocacy helped or hindered the case? Some presence of people in court (e.g UNAIDS, embassies, TALC) might have assisted to ensure trial proceeds correctly International human rights institutions followed case but did not actively engage, some press statements and engagements with government over past year Some support from close allies to accused, but lonely and stressful to be accused The case was about the right to express views, yet few in Zambia came out in support of right Prosecution of Kasonkomona contributed to silence and reluctance to speak out on human rights

LEGABIBO case About the right of LGBT to form an association Again, the case should be linked to broader right – freedom of association – a good judgment will benefit not only LGBT, but other minority groups as well Applicants presented case well, but significant lack of understanding of issues by court, AG Unprecedented LGBT support in court Case utilised as a tool to grow organisation, rallying call for members Media black-out because LGBT?

LEGABIBO activists outside court

LEGABIBO activists in court

LEGABIBO case: Good branding

LEGABIBO case: pamphlet

LEGABIBO case: Good branding

S v Mwanza Police, District Hospital (Malawi)

Coerced sterilisation cases (Namibia)

Mwanza and another v AG (Zambia)

BONELA and Others v AG (Botswana)

Thulani Maseko and Bheki Makhubu (Swaziland) Wrote articles criticising judiciary and Chief Justice in February Arrested 17 March, released 7 April Re-arrested 9 April.