Litigation Institute

The first phase of the Institute focused on practice and procedure, introducing key theoretical frameworks that guide ISLA’s approach to strategic litigation.

The Network Lawyers explored the African Human Rights System, tracing its historical development and examining the African Court, the African Commission, and national constitutional litigation. Network Lawyers explored whether treaty withdrawals allow states to evade accountability. Discussions confirmed that cases must proceed to conclusion, as seen in Tanzania’s case, even after withdrawal. While some protocols permit withdrawal within a set period, this does not affect ongoing cases. Concerns were raised about delays and systemic failures, particularly when cases cannot be taken to international forums until all domestic avenues are exhausted. It was noted that merely citing delays is insufficient; one must demonstrate full engagement with the system and that all necessary investigative steps have been taken.

These discussions underscored the legal complexities strategic litigators must navigate, highlighting the need for both procedural diligence and sustained pressure to ensure accountability.

A major theme of the institute was why feminist litigation remains an uphill battle, particularly within legal pluralism, where statutory, religious, and customary laws coexist, often creating contradictions that disadvantage women. The discussion raised questions about whether the individualisation of property rights under modern law is preferable to maintaining the status quo of customary law. It was noted that colonial-era legal frameworks, continue to apply, often based on systems not designed with African women in mind. The importance of understanding the historical origins of these laws was emphasised, as it is crucial to recognise their impact on women’s lived experiences and the challenges they face in contemporary legal systems.

Discussions also examined how customary land ownership affects women’s access to property. Participants explored patrilineal and matrilineal systems in depth, questioning whether matrilineal structures genuinely empower women or merely reinforce patriarchal control. It was noted that, despite being perceived as more equitable, matrilineal communities often fail to serve women’s interests, as land access remains largely dependent on male relatives, with men continuing to dominate land governance, administration and inheritance.

These conversations underscored the complex barriers women face in securing land rights and the urgent need for legal strategies that challenge systemic inequalities while ensuring women’s access to and control over land.

The final phase of the institute allowed participants to apply their learning through assessments and a moot court session. The hypothetical case revolved around a woman seeking legal recognition of her property rights post-separation, raising crucial legal questions about the valuation of non-monetary contributions in property disputes; emotional distress and future loss of earnings as compensable damages and the need for constitutional interpretation in advancing gender justice.

The panel of judges provided key feedback, emphasising the importance of clearly presenting case facts in opening statements, avoiding duplication of claims for emotional distress, damages, and loss of income by grounding them in precedent, and supporting claims for future medical expenses or lost earnings with expert reports or documented evidence. They also stressed the need for persuasive, well-structured legal arguments, particularly in advocating for women’s property rights under human rights frameworks.

The WSER Institute encouraged participants to unlearn and rethink entrenched biases in the existing laws. The Network Lawyers noted that the training forced them to challenge legal norms that prioritise formal ownership over women’s lived realities.