Overview of Key Concepts
Module 6: Litigating Digital Rights Cases in Africa
Below is a brief overview of some of the procedural requirements for any litigation strategy. The specific procedures of the various courts will be further detailed in their respective sections below.
The doctrine of standing is commonly understood as the ability of a party to bring a matter to a particular court. It prescribes the right to act before a court or forum and to represent specific rights or interests. This involves an evaluation of any existing applicable restrictions on whether an individual or organisation can file a case. It usually boils down to a litigant establishing their interest in a matter: who they are, how they are affected, or who they represent, or what interests they represent. To establish standing, a potential litigant would essentially need to demonstrate to the court that there is a sufficient connection between the issue and their interest in the issue. Different courts and tribunals engage with standing differently. Standing is usually the first procedural hurdle that needs to be overcome; accordingly, it is important to confirm what the standing requirements are before committing to a litigation strategy.
Some points to consider when assessing standing:
- Is an individual, community or civil society organisation best placed to bring the matter to the court or forum?
- Would a combination of different applicants be strategic?
- What are the different interests in the matter?
- What are the different risks for instituting a mater?
- What is in the best interest of the case?
- What are the resources or capacity constraints?
Jurisdiction refers to the ability or competency of a court or forum to consider and decide a particular matter. Jurisdiction can either be based on geographic areas or on the type of legal issue. It can also be based on where the violation occurred. Establishing jurisdiction is an important early step in the development of a litigation strategy as it can have a significant impact on the direction of a case.
Admissibility refers to the process applied by international human rights fora to ensure that only cases that need international adjudication are brought before them. It is, therefore, the essence of the principle of subsidiarity. The principle of admissibility requires that all local remedies are exhausted and that consideration be given to whether there are rules relating to prescription and whether the forum recognises the concept of ongoing harm.
Some points to consider when assessing admissibility
• What are the possible local remedies available?
• Are local remedies efficient and reasonable?
• Is there existing case law in the court on the admissibility of cases in relation to exhausting local remedies?
• Is it practical for the domestic forum to be seized with the matter?
• Are there prescribed time frames?
• Is the harm ongoing?
• Have efforts been taken to appeal initial decisions?
• Is there a mechanism for direct access?
Different courts and fora might have different rules relating to legal representation. Sometimes legal representation is not required, but might be useful; other times, the court or forum might facilitate the provision of free legal aid. Representation does not always have to be legal, and litigants can sometimes be represented by a person of their choice.
Some points to consider when assessing representation
- Is there a restriction on having legal representation?
- What resources are available for legal representation?
- Who would be best placed to assist with legal representation?
An amicus curiae is a ‘friend of the court’. It is not a main party to the litigation but is accepted by the court or forum to join the proceedings to advise and assist it in respect of a question of law or other issues that affect the case in question. Some individuals, communities or organisations might have first-hand or expert knowledge on a particular topic; their involvement could be of assistance to the court or forum. Interested parties usually need to apply to the court or forum requesting permission to intervene in the matter and typically need to prove that they have an interest in it, that their submissions will be of use to the court or forum, and that they will not be repeating the arguments of the main litigants. However, each court or forum may have its own rules on the admission of amici. Courts and fora usually have the discretion to grant or refuse an amicus application. Amicus interventions can be particularly useful when litigating digital rights matters as there is often a need for technical and expert analysis given the rapid pace of change in the digital environment.
Some points to consider when assessing amicus curiae
- Is there something additional and useful that should be brought to the court’s or forum’s attention?
- Are there individuals, communities or organisations who might have particular knowledge or interest in a matter?
- Would the amicus be neutral, or would the amicus be supportive of a particular party?