Ndubisi Obiorah: The context usually determines this. But because litigation is excruciatingly slow, we try to avoid it if we can. Litigation is typically a last resort. First we intervene with government officials, local or traditional authorities, state security forces, community leaders, and private-sector leaders.
In the case of the January 1998 Mobil oil spill that damaged the fisheries of the Ibeno community in southeastern Nigeria, we first wrote letters to government officials and the oil company. However, they did nothing to help, and when the security forces attempted to intimidate Ibeno community leaders, we saw no choice but to sue immediately. Mobil’s top-notch lawyers are now prolonging the case by any means possible. We expect to spend one or two years in preliminary appeals, another year or two in the substantive trial, and then another couple of years in appellate proceedings.
Human rights litigation is most effective when it can achieve the immediate, practical results desired by the plaintiff. For instance, litigation in Nigeria has helped indigent criminal suspects in long-term detention without trial to get out of prison and receive compensation.
Some human rights violations, such as female genital mutilation (FGM), are better addressed by a combination of approaches. If human rights lawyers sued the government for failing to protect young girls, it might have very limited immediate and direct impact on the victims. If we wanted to sue the parents or the circumcisers, it would be difficult because Nigerian jurisprudence on standing to sue is restrictive, and it would also be hard to find a willing plaintiff. Rural society in Nigeria is extremely patriarchal, and traditional culture emphasizes filial obedience. It is commonly believed that death or disability as a result of FGM is caused by promiscuity of the victim or her mother. Also, some women’s rights groups see litigation as too adversarial to be effective and are skeptical of its utility; they fear litigation would only serve to drive female circumcision underground. Social advocacy efforts in the rural communities where the violation occurs are more effective in the long run.
One significant advantage to litigation is the media coverage it attracts. Naming and shaming violators can end unjust situations. Since Nigeria moved toward democratic civilian rule in 1999, the press is particularly likely to cover human rights abuses by the state security forces or the repression of opposition politics. The Nigerian media paints human rights lawyers as “white knights” who come to the rescue when, for example, students face disciplinary proceedings by university administrators for participating in anti-government demonstrations. Such coverage has led to greater public awareness of human rights among Nigerians and encouraged poor people, particularly those who are literate, to approach HURILAWS for legal assistance.
Dialogue: In your experience, is there adequate representation of the interests of those whose human rights are being defended?
Obiorah: It is often the case that lawyers drive the litigation strategy where the litigant is poor, ignorant, and dependent upon the lawyer’s goodwill or access to donor funding. Disagreements between claimants and counsel are surprisingly rare, which may be due to deference to the counsel’s legal skills. Sometimes the priorities of victims of human rights abuses take a backseat to a human rights group’s political agenda. In one case, a victim of domestic violence by her late husband’s relatives received legal assistance from an NGO. The NGO filed a lawsuit seeking various remedies, but focused the case on securing a declaration that customary inheritance law in southeastern Nigeria was discrimin-atory against women and therefore unconstitutional. While this is a laudable cause, it compromised the victim, who was primarily interested in recovering family assets seized by her husband’s relatives. The client was thus reduced to no more than a nominal plaintiff or cause––a guinea pig, in effect.
As I mentioned, the media’s coverage of litigation can be helpful. However, a major problem in human rights litigation in Nigeria is the practice of some NGOs’ filing cases for the purpose of generating media attention rather than prosecuting the case to judgment or representing the interests of the plaintiffs. Preliminary proceedings are heavily promoted but, as the media spotlight inevitably shifts, these NGOs lose interest in litigating the case. After several inconclusive court hearings, such cases are usually dismissed.
In one situation, an activist was on trial for an offense which at that time could have brought a death sentence in Nigeria. His counsel suddenly withdrew from the case, without the activist’s knowledge or consent, alleging bias on the part of the judge based on some, in my opinion, innocuous, although impolitic, remarks. It later surfaced that the withdrawal had been dramatically staged to attract media attention to supposed judicial bias against members of the attorney’s NGO. Such practices are a breach of legal ethics and are inimical to the credibility of human rights litigation and the human rights community in Nigeria. But they do happen.
When rural people come to HURILAWS, we make sure that litigation is their last resort. If we go to court, we foster our clients’ sense of involvement and control, keeping them informed and consulting them on proposed steps. Above all, we do not put our political agenda ahead of the victim. When we decide to advance a cause by “strategic impact litigation,” we use nominal plaintiffs who are human rights activists, social reformers, opposition politicians, or even our own staff members. In such situations, the plaintiff is well informed and willing to participate in a strategic impact case in order to further our social justice goals.
Dialogue: Do the people you serve understand your work as “human rights litigation” or just “litigation”? Do they understand their struggles to be international human rights struggles?
Obiorah: Many understand our work in representing them in court as human rights litigation. In advising victims of human rights abuse, we always inform them that their rights are guaranteed under the African Charter on Human and Peoples’ Rights as well as the Nigerian Constitution. Those with a higher level of education have a greater opportunity to know that they have rights described in international treaties. For the urban educated with access to mass media, “human rights” and “democracy” are a part of daily discourse; this is in part due to Nigeria’s traumatic recent past. Of course, this is much less so for the rural poor. But in troubled areas such as the Niger Delta where many human rights abuses occur, the level of awareness is higher than in other parts of Nigeria.
Dialogue: What is the impact of human rights litigation for the people whose rights are being defended? Does it help them to achieve social justice?
Obiorah: Unfortunately, some claim-ants are disappointed by human rights litigation because it does not provide comprehensive solutions to problems of social justice, which require a combination of strategies such as public education and community outreach. Claimants are also frustrated by the excruciatingly slow pace of proceedings and abstract legal technicalities.
Nevertheless, if we keep in mind the limits of human rights litigation, it can be a powerful force for good. Human rights litigation can help parties to become more aware of human rights, if only by frequent association with human rights activists in the course of the litigation. Participating in litigation can also help strengthen community solidarity. For instance, a group of evacuees from Maroko, a squatter settlement on the outskirts of Lagos that was demolished in 1991 by the state government, set up a community association initially for the purpose of documenting legal claims for litigation. This association is now functioning on more levels and is an asset to the community.