Who can take legal action?

The requirement of “standing”

Before taking a case to court, it is important to establish that you have the right to do so, i.e.  you need to check that you have “standing” to bring the action (also known as “locus standi”).

In an ordinary suit, before one can attempt or endeavor to take legal action to enforce a right, he/she is required to first prove that he/she is entitled to that right and that the right in question was infringed upon. Such person needs to have a sufficient close connection with the matter in question for him or her to say that their right or interest in the matter has been infringed. Such connection should not just be emotional but should have a legal basis. For instance for one to claim an interest in land, they should prove that they are lawfully either owners or occupants of the land.

If the court finds that you don’t have standing, it may reject your case, and then no decision would be taken on the merits (the substance) of your claim.

Each legal system has its own law of standing. Whether the rules on standing are satisfied often depends on:

1. Who is bringing the claim.
2. The type of case being brought or the remedy being sought.

Who is bringing the claim?

Usually, only a legally recognised “person” or “entity” can have standing, and not an informal grouping or an abstract concept. A person or entity generally includes:

• An individual, e.g. “Ms. Beatrice Namubiru”
• A company or Commission or Authority incorporated by an Act of Parliament e.g. “Network of Public Interest Lawyers – Ltd” [See S.2 The Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 .]
• A registered NGO e.g. “Centre for Human Rights and Development (CEHURD)”

But not, informal groups (e.g.“Galabuzi family”) or abstract concepts (e.g. “Katanda Slum” or “Green Side Natural Park”).

There are exceptions, where a national law gives standing to an abstract concept.

Example: Rights of the Environment In Bolivia and Ecuador, the constitution grants the environment (“Pachamama”) rights under Bolivian and Ecuadorian law. Similarly, national laws in New Zealand give similar rights to specific rivers and national parks. Whereas in the Philippines, “future generations” have been recognised as having the right to a healthy environment.[1]

What type of case is being brought? What remedy is being sought?

A common requirement is that you must be able to show a “special interest” or a “direct and personal interest” in the outcome of the case you are bringing in order to have standing. So, for example, you might be upset by illegal logging on land near where you love but without an interest in the land you may not be able to take legal action yourself.

In many countries, there is also a distinction between the standing requirements governing:

• Claims against individuals or companies; and
• Claims involving the state or public authorities.

Frequently the standing requirements for cases involving the state or public authorities are more onerous, reflecting the public interest in allowing the state a degree of flexibility in discharging its functions. For the same reasons, courts in some countries require that claims against the state or public authorities should first satisfy certain public interest criteria before being allowed to proceed.

For more information on the different approach to standing requirements and procedure for cases against public authorities, see [x-ref to level 2 page on claims against the state].

 Standing to bring Public Interest Litigation (PIL)

A requirement to show a special, direct, or individual interest can be an obstacle if you are planning to bring a PIL case because, by definition, PIL is directed at the wider public interest.

Uganda’s legal and policy framework on PIL is anchored on Article 50 of the Constitution which mandates any person whether directly affected or not to file matters for enforcement of the constitutionally guaranteed fundamental rights and freedoms.

Article 50(2) states: “Any person or organisation may bring an action against the violation of another person’s or group’s human rights”. The phrase “any person or organization” allows any individual or organization to come before the courts of law and seek enforcement of the rights  of another even though that person or organization is not suffering the injury complained of. This article is the embodiment of the spirit of PIL.

Although article 50(4) imposes a duty on Parliament to make laws to operationalize the provision, no such laws have been made by Parliament and the legal framework on PIL is still hollow. Two sets of regulations have been made by the Rules Committee to guide filing and conduct of cases under articles 50 and 137 and these are the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, 2008 to regulate the filing and conduct of human rights claims and the Constitutional Court (Petitions and References) Rules, 2005.

Article 50 supplemented by Article 137 which creates constitutional court for purposes of interpreting the Constitution.

Determining whether you have standing to bring PIL

Unfortunately, finding out whether you have standing to bring a PIL case can sometimes be complicated and you may need assistance from a lawyer. The conditions you need to meet might be found in different places:

A judicial decision

In some countries, the rules of standing have been created by the courts through case law.

Examples

• Some courts in the US have recognized that a citizen who wants to enforce a public duty does not need to show that he has any special interest in the result. It is sufficient that he is interested as a citizen or taxpayer in having the laws properly fulfilled and the duty in question enforced.
• In France, the right to PIL is not limited to legally-entitled public interest groups; any registered association may bring civil claims to defend its collective interest. As a result, virtually any public interest group may bring a PIL.
• In China, a Chinese environmental protection NGO was granted standing to file a suit against a private terminal and shipping services company. They claimed the company was creating air, water and noise pollution during the process of unloading, washing and transporting iron ore.
• The case was resolved through mediation and the defendant was required to correct its environmental violations. This was the first PIL successfully brought in China.[2]
• In the Philippines, the Supreme Court ruled in favour of an NGO acting on behalf of future generations, finding that they had a right to a healthy environment and resulting in the cancellation of a government timber license.[3]

An article in a law or in the Constitution

Sometimes a law or the country’s constitution gives a right to bring PIL. This may be a general right or it may be restricted to certain topics.

Examples

In South Africa, PIL is a constitutional right. Virtually anyone can bring an action to protect a provision of the Bill of Rights which includes, among other rights, the right to an environment not harmful to health and well-being, right to housing, health, sufficient water and food.

In Brazil, the Public Civil Action Law (“Lei de ação civil pública”) of 1985 authorizes registered civil society organizations to file lawsuits to seek remedies for any kind of harm caused to the public interest.

In the US, environmental citizen suits (which may be brought by either individuals or citizens groups) are authorized under major federal statutes.

In Ecuador and Bolivia, the environment has constitutional rights, equal to those of citizens, meaning any individual or organisation can bring a PIL case on behalf of the environment.

In Uganda, (as already noted above) PIL is enshrined in the Constitution in Articles 50 and 137.

Before going further, find out whether you could have standing to bring a PIL claim in a civil or administrative court. If you do not, it may be possible to bring your claim in a court in another country, or in an alternative international or national body.

For further information, see “Where Can I Take Legal Action?”

[1]For further information, see https://www.earthlawcenter.org/newsfeed/2017/1/the-rights-of-nature-indigenous-philosophies-reframing-law.

[2]For more information, see the case summary at https://www.informea.org/en/court-decision/public-interests-jiangyin-also-known-all-china-environment-federation-v-jiangyin-port

[3]For further information, see http://www.futurepolicy.org/crimes/right-of-future-generations/.

Suit in the name of a company

To bring a suit in the name of a company, you must obtain authority from the company. It might be by way of a special resolution passed by the company authorising the suit [Bugerere Coffee Growers v Sebaduka [1970] EA 147]

Law Enforcement Agencies

The starting point is that in most countries criminal prosecutions are generally brought by a state agency, and that it is rare or even impossible for a private citizen or entity to initiate a criminal proceeding.

In principle, citizens or civil society groups can approach law enforcement authorities with strong and reliable evidence that an offence has been or is being committed. In theory, this can form the basis of an investigation and may, depending on the strength of the evidence, lead to the initiation of a criminal prosecution.

In the real world, law enforcement authorities may be unwilling or unable  to take your case forward

Ug V Inspector General of Police, Gen. Kale Kaihura & Seven Ors Miscellaneous Criminal Application No. 6060 Of 2016. This case was brought by private prosecutors under the Network of Public Interest Lawyers (NETPIL) challenging the various incidences of police brutality that had occurred many times across the country occasioning gross violations of various individual rights. Whereas Article 50 of the Constitution allows any person or organisation to bring an action against the violation of another person or groups’ human rights; Article 120 (3c) of the Constitution recognises initiation of prosecution by any private person or authority; and Section 11 (1c) of the Prohibition and Prevention of Torture Act, 2012 further allows a victim or any persons to bring a complaint of torture against any person before a Magistrate. Premised upon these legal guarantees, NETPIL as an organisation and the members instituted the private prosecution following inaction or lack of willingness on the Directorate of Public Prosecutions (DPP) to go after another state agency – the police. [See http://www.monitor.co.ug/News/National/20-lawyers-prosecute-Kayihura/688334-3324992-15m10yg/index.html]

In many countries, there is simply not enough resources, law enforcement officials and prosecutors to effectively take cases forward in a reasonable amount of time. While the worldwide average tends to be 188 police officers per homicide, the median for countries in Africa is only 22 police officers per recorded homicide. This leads to delays and a denial  of justice in many serious cases.

In others, police may be unwilling to help, or outwardly hostile to you enforcing your rights, making it dangerous to even approach law enforcement authorities. This is particularly clear when your case concerns of actions of public officials or powerful individuals/groups in society

Example The ECOWAS Community Court of Justice is currently hearing a case concerning a woman subjected to domestic violence by her husband, a policeman. This case is being brought to a regional court because law enforcement authorities in Nigeria were unwilling to investigate and prosecute in a case involving a member of their police force.[1]

In most systems, public prosecutors enjoy broad discretion in deciding which criminal cases to pursue, and sometimes they will decide not to take up a case, despite being presented with credible evidence. This can be a product of corruption, disinterest or contempt towards the enforcement of your rights.

• In some countries, the law allows a person who disagrees with this decision to challenge the prosecutor in court (though it is often necessary to show that the prosecutor’s decision was not simply wrong, but obviously or unreasonably incorrect).
• In some cases, prosecutors are obligated under human rights law to take cases forward when they involve a serious breach of human rights, such as the right to life.[2]

Where law enforcement agencies are unable or unwilling to take your case, you may be able to bring a “private prosecution” to secure justice.

Who can bring a private prosecution?

In some countries, an individual or NGO may be able to take the criminal case to court itself; this is called a “private prosecution”. In such cases, upon receiving the complaint, the court is obliged to proceed with the criminal case unless there is an obvious defect (e.g. the facts in question do not constitute an indictable offence). Private prosecutions can be a vital way in securing justice when law enforcement authorities are unable or unwilling to take your case.

Who can bring a private prosecution depends very much on the local laws of the country in question. By way of example, the following have standing to bring a private prosecution in some countries:

Legally authorized public interest groups:

Some jurisdictions allow registered groups to bring criminal charges in relation to matters affecting public interests. In most cases, the group can take action even when it does not itself suffer harm from the offence. Its right to do so stems simply from the general right to bring a private prosecution.

Example

In South Africa, anyone with the legal right to take a private prosecution in respect of any offence can do so before any competent court. For example, the National Environmental Management Act (107/1998) expressly provides for private prosecutions in relation to the protection of the environment.

Example

In France, many associations are granted the right to initiate private prosecution in relation to certain matters of public interest.

The victim:

In some countries, the right to bring a private prosecution, or a related civil claim, is limited to the victim of the offence.

Example

In South Africa, the law states that where a public prosecution is not initiated, an individual can take a private prosecution where they can prove substantial interest in the offence concerned. This rule has been narrowly interpreted as applying only to natural persons, not legal entities.

Example

In France, victims have a right to bring civil actions for harm suffered as a result of the offence. An anti-corruption group, Transparency International France (TIF), used this entitlement to claim an infringement of its interests as a result of the alleged money laundering activities in Africa. It argued that these offences impaired TIF’s core mission.

The French courts ruled that TIF had the required standing to pursue the case.

Private prosecution by citizens generally:

In some countries, private prosecutions can be brought by anyone, in relation to any offence, if the aim is to enforce the law rather than seeking compensation. It is not necessary to show that the person bringing the private prosecution suffered in relation to the offence.

In common law jurisdictions (which include the UK and many former parts of the British Empire, such as Australia, India, Hong Kong and Singapore), every citizen generally has exactly the same right to institute proceedings as the prosecuting authority.

In Uganda as already noted,

• Article 50 of the Constitution allows any person or organisation to bring an action against the violation of another person or groups’ human rights;
• Article 120 (3c) of the Constitution recognises initiation of prosecution by any private person or authority;
• Section 11 (1c) of the Prohibition and Prevention of Torture Act, 2012 further allows a victim or any persons to bring a complaint of torture against any person before a Magistrate.

Difficulties in bringing private prosecutions:

In practice, a very small proportion of prosecutions is commenced in this way.

There are a number of practical and legal reasons for this:

• A private party does not enjoy the same powers of investigation as law enforcement authorities.
• Bringing a case requires sufficient funds and expertise.
• Private prosecutions for certain offences can only be instituted with the consent of the public prosecutor.
• The public prosecutor can at any time take over the prosecution from the private citizen, either to continue with it, or to discontinue it.

In circumstances where State law enforcement authorities are incapable or unwilling to prosecute, this creates major gaps in access to justice.

Where this is the case, consider alternative ways you can secure justice in your case. This may be by bring your claim in a civil or administrative court, through international or foreign courts, or through alternative international and national bodies.

For further information, see “Where Can I Take Legal Action?”

[1]For further information, see https://ilg2.org/2017/02/19/landmark-decision-in-first-case-of-domestic-violence-brought-to-ecowas-community-court-of-justice-eccj-ruling-ecwccjapp2615-24th-january-2017/.

[2]For further information, see https://iachr.lls.edu/cases/barrios-altos-v-peru.