6-7 June, Johannesburg, South Africa
ISLA is a feminist and Pan-African human rights organisation focused on the strategic litigation of women’s human rights before regional human rights bodies and the use of international and comparative human rights law before domestic courts. We work on gender and sexuality. In addition, we provide expertise in the capacity strengthening of lawyers and NGO’s on international law and strategic litigation.
One of ISLA’S thematic area of focus is violence against women, an area in which there has to date been a dearth of Jurisprudence within the African Human Rights Systems. Despite the investment in programs aimed at strengthening lawyer’s capacity to conduct strategic litigation, very few countries can provide evidence of court decisions that match this investment. Similarly in over 30 years of the African Commission on Human and Peoples’ Rights’ existence, only a single decision that addresses the violation of women’s rights has been handed down (EIPR and Interights v Egypt in March 2013)1 . In our analysis, there is a link between failure to refer cases before courts and human rights systems and the dearth of legal information and skills deficit of lawyers.
ISLA has come into being as a much needed response to both the skills deficit and institutional limitations within African organisations working on strategic human rights litigation. Our work through this program will strengthen the capacity of lawyers to further understand women’s human rights and relevant international, regional and domestic standards as well as strategic litigation in this context. Ultimately, we aim to expand the jurisprudence, develop a cumulative 1 Interights and Another v Egypt (2006) AHRLR 94 (ACHPR 2006) and progressive interpretation of women’s human rights leading to real change in the lives of women.
To this end, we are keen to refine our own work in Violence against Women, and are seeking expert advice and guidance from this meeting. We hope to have your thoughts on which issues are most critical, and just as importantly, how we should approach legal intervention in this area.
2. ISLA’s MANDATE, VAW PROGRAMME AND WORKING METHODOLOGIES
Established in 2014, ISLA has an ambitious and timely remit: to strengthen strategic human rights litigation across the continent. Our work is based on the belief that strategic litigation is an immensely strong tool for social change because it helps to reframe the understanding of entitlements before the law and it challenges the legal discourse. We believe that investment in local institutions and individuals is key to sustaining the momentum and expanding the pool of competent domestic lawyers who can do strategic litigation.
In fulfilling our mandate with regards to the VAW programme our main focus is to work with a network of specific targeted institutions working on violence against women across the continent. To date, ten organisations in ten English speaking common law countries (three in West Africa, three in East Africa and four in Southern Africa) have been identified. We will complete several activities aimed at increasing the capacity of these local partner lawyers to utilise strategic litigation in the context of violence against women. These activities will include running, tailor made capacity strengthening programs to empower lawyers to litigate violence against women. We will hold litigation seminars at which participants discuss and receive support on real cases that they are litigating or hoping to litigate. Lawyers will be able to seek peer support and discuss common challenges and pitfalls as well as share successes and examine hallmarks of effective litigation. These seminars will enhance the understanding of regional and international standards among lawyers and activists working on violence against women. They will also increase the capacity of local partner lawyers to utilise strategic litigation in the context of violence against women.
We will also hold follow up meetings to the litigation seminars and provide ongoing assistance to the lawyers that we work with. We will provide in-depth capacity strengthening focused on case planning, commenting on draft briefs and providing substantive input on specific cases that were either identified during the first capacity strengthening seminars or that otherwise came to the attention of the program staff. Our programme will also run a series of in country visits to local partners’ offices to meet with the partners in order to assist in the development of strategic litigation plans for partner organisations and establish institutional support practices for supporting strategic litigation within these organisations.
Our capacity strengthening programs aim to transfer the skills and expertise needed so that local lawyers can select, develop and argue cases effectively. Finally we will publish a litigation manual which will focus on various aspects of litigating violence against women.
3. PURPOSE OF THE MEETING
Against the backdrop of the information provided above, at ISLA we feel the need to constantly increase our own capacity on violence against women issues, and as a result through this platform, seek expert guidance and advice on were we might focus our efforts.
The meeting will serve the purpose of:
- Setting out priority issues and principles for elaboration through litigation;
- Specifically advising on appropriate cases and approaches for litigation before African Human rights bodies, national courts and UN treaty bodies;
- Advising on the approaches ISLA might best employ in pursuing litigation of these issues;
- Beyond litigation, identifying ways in which ISLA might support work on Violence against Women, mindful of its mandate and expertise.
4. KEY PRINCIPLES IN OUR LITIGATION WORK
The following principles inform our work and participants are requested to be mindful of these during the discussions. We aim to;
- Focus on cases with impact beyond the individual case, and which may resonate in other systems
- Focus on the development of important principles, relevant across the board in relation to Violence against Women.
- Focus, as much as possible, on issues in which we have existing experience/expertise. We also have expertise on working with the procedural nuances of the regional bodies. Given that admissibility criteria – for example, standing issues, victim status and exhaustion of domestic remedies – often provide sever obstacles for litigation, we believe we have a role in litigating to ensure that these procedural matters are approached with flexibility by Human rights bodies
- Develop a strategy balancing important “easy win” cases with cases that will be complicated procedurally and substantively to litigate
- Finding appropriate applicants. We would welcome the meeting’s opinions and guidance on how we might find appropriate cases that will further the fulfilment of our goals.
- Partnerships are critical to our work, and we need to find strong local partners to identify cases, exhaust domestic remedies and provide support to the victim during international litigation. Given that strong local partners are central to our litigation work, we are concerned with identifying appropriate partners and ensuring their capacity. We welcome thoughts on who are some of the key players in Violence against Women issues we should be working with
- Not to duplicate work undertaken more effectively by others.
5. ISSUES FOR POSSIBLE DEVELOPMENT
Throughout our discussions, we would welcome thoughts on particular issues, and legal concepts in need of clarification and/or elaboration. The following list highlights some of the prevalent concerns on violence against women, the evolving jurisprudence and practices on violence against women. Though not exhaustive, the following matters may be considerations to incorporate into the discussion and enlighten how we can address these issues in our work.
State’s responsibility to act with due diligence. The due diligence standard has increasingly become of importance in holding states accountable acts of violence against women.2 This responsibility among other thongs involves “responding effectively to violence, ensuring gender equality frameworks, promoting attitudinal change, proactively ensuring women’s participation in decision making and undertaking programmes with a strong focus on promoting women’s empowerment and agency.” According to the Declaration on the Elimination of Violence, states should develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and to just and effective remedies for the harm that they have suffered; States should also inform women of their rights in seeking redress through such mechanisms. In light of this duty to act with due diligence, the following issues are of concern to us;
- While many states have enacted laws on the criminal prosecution of perpetrators of violence against women, to a large extent there is still failure to provide a legislative framework that has a mix of both civil and criminal procedures in order to effectively address domestic violence
- Failure to investigate cases of violence against women (for such reasons as victims being required to track down the suspect themselves or provide petrol money for police or being asked by medical staff to pay for a statement detailing their injuries – police will refuse to open a case without such a statement)
- Statute of limitations barring adult survivors of child sexual abuse from instituting civil proceedings against perpetrators. As the case of Stubbings and Others v United Kingdom3 show, laws of prescription can severely hamper efforts of survivors of child abuse in obtaining redress from the courts. How do we ensure that standards for addressing such cases take into account and accommodate the psychological sequelae of survivors of abuse when determining the prescription period
- Failure to protect victims of trafficking by providing neither remedies nor a framework to seek recourse. How do we ensure that there is a paradigm shift in the way that States deal with trafficking by holding accountable those that exploit women and offer redress for victims. Much focus has been expended on ensuring the obligations of receiving states of victims towards them. How can we ensure that states from which victims are trafficked, are not absolved of responsibility?
- Some states still fail to criminalise all manifestations of violence against women, in particular marital rape. This failure denies women subjected to marital rape equal
2 See Social and Economic Rights Action Centre and Another v. Nigeria (2001) AHLR 60 (2001 ACHPR), Jessica Lenahan (Gonzales) v United States of America, Case 12626 IACHR, Report No.80/11 (2011) ,Opuz v Turkey 33401/02  ECHR 870 , Velasquez Rodrigues v Honduras, Judgement, IACtHR (ser. C) No. 4 (July 29, 1988) and Report of UN Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo ,A/HRC/26/38 3 Stubbings and Others v United Kingdom 22095/93  ECHR 44
protection of the law, leaves men unaccountable for their violence and perpetuation of the violence. Further this demonstrates a failure by the State to fulfil its obligations.
- The treatment of domestic violence as ‘a private matter’. This continues to have an impact on the responses of various actors in the prevention, reporting and prosecution of cases of violence. Such treatment of violence against women discourages complainants from pursuing cases.
- laws that require corroboration of evidence in rape cases
The International Normative Framework on violence against women. The Special Rapporteur has identified this as a normative gap that hampers holding States accountable to standards that are legally binding. What is the added value in having such an instrument and can litigation be used as a strategy for filling in the normative gap?
Psycho-social support for Litigants. The provision of Psycho social support to litigants is often a crucial factor in the success of strategic litigation. Often institutions involved in strategic litigation are not equipped to provide this service. How do we ensure that the litigant has the support required to proceed with the case? What actors and groups should we be engaging to secure the necessary support?
The creation of hierarchies of violence against women. There seems to have been a creation of hierarchies of violence against women through political and funding actions which has resulted in the articulation of sexual violence in conflict as being different and exceptional and thus of greater priority. How can we through our programme ensure that the whole spectrum of violence against women is treated equally?
Intersectionality/Multiple forms of discrimination. Violence against women and intersectionality or multiple forms of discrimination. Increasingly there has been recognition that not all women are equally vulnerable to acts and structures of violence. To effectively address violence against women requires accounting for the different factors that result in this disparate impact. How among other things can we ensure that standards set in addressing violence against women is accommodating of these multifaceted identities? What standards should we be looking to develop particularly when dealing with violence as a form of discrimination? Are there intersecting identities that we should prioritise? What remedies should we be asking for?
Most of our events are by invitation only. We do however reserve five seats for individuals who can demonstrate the importance and value of attending the events.
Contact us for more information
Jane Serwanga – Project Manager, Equality Now;
Pramila Patten – Member, UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW);
Bonita Meyersfield – Director, Centre for Applied Legal Studies (CALS);
Jesenia A. Santana – Program Officer, Novo Foundation;
Joy Ngozi Eseilo – Founding Director, Women Aid Collective;
Tracy Robinson – Member, Inter-American Commission of Human Rights;
Glenys de Jesús Checo – International Legal Director, Women’s Link Worldwide;
Esther Kisembo – Legal Officer, FIDA-Uganda;
Sanja Bornman – Attorney, Women’s Legal Centre;
Kameshni Pillay – Advocate and Senior Member, Johannesburg Bar;
Nyasha Karimakwenda – Consultant, Initiative for Strategic Litigation in Africa (ISLA);
Katy Hindle – Gender Unit Programme Manager, Centre for Human Rights, University of Pretoria.