Strategic litigation: Violation of Human Rights of LGBTI people INTERIGHTS Sibongile Ndashe Lawyer, Equality Programme

Strategic litigation Use law to create lasting effects beyond the individual through law and policy reform What do you want to change?  Elimination of the violation of human rights of lgbti people

What do we know? Three unsuccessful decriminalisation challenges S v Kanane (Botswana) S v Banana (Zimbabwe) Chimbalanga and Monjeza v Attorney General (Malawi) One successful challenge National Coalition on Gay and Lesbian Equality v Minister of Justice ( South Africa)

Strategies  Shifting the conversation from the narrow focus on decriminalisation to the more inclusive struggle for sexual rights  Incrementally develop a jurisprudence on discrimination, privacy/ private life/ dignity/ right to health  Restating the principle of the universality of rights and restating that the law only criminalise same-sex sex, not identity

Strategies continued  Expanding circles of activism (HIV/AIDS, Women’s rights, Health rights)  Entrenching the movement into civil society and mainstream human rights movement  Enhancing access to Justice including access to legal representation (Lawyers’ network)

Considerations for strategic litigation - The “right” client and facts -Caution around making martyrs of people who are in conflict with the law - Easy wins, difficult wins, multiple cases -What is likely result of losing - Is there a possibility of a backlash?

Widespread practices which violate human rights -Refusal to register LGBTI NGO -Harassment of transgender people - Malicious arrests (detention without charges) - State sponsored homophobia - Discrimination in housing/ employment/ education and healthcare settings - Violence

Consider Strategic cases are normal cases, made strategic  Careful positioning and argument Mukasa and Oyo v Attorney General (2008) Kasha & Others v Rolling Stones & Another (2011)  Other supporting strategies

Challenges Opportunities Litigation as a process Finding the “human rights” angle Continuing challenges of access to justice domestically Human rights of lgbti people not understood by lawyers and judges Adverse media and hostile socio-political climate Broader human rights violations generally quite easily understood by courts Emerging international and comparative jurisprudence A civil society that is increasingly seeing the issue as a human rights, not simply a “moral” concern