Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference.

1. STRATEGIC LITIGATION AS A SOCIAL ADVOCACY
TOOL
USING HUMAN DIGNITY AND NON-DISCRIMINATION
TO OUTLAW THE UNCONSTITUTIONAL PRINCIPLE OF
SHOWING CONTRIBUTION DURING THE DIVISION OF
MATRIMONIAL PROPERTY DISPUTES
BY KELVIN MBITHI
STRATEGIC LEGAL MECHANISMS FOR DELIVERING SOCIAL AND ECONOMIC RIGHTS IN AFRICA CONFERENCE

2. Introduction
 Chinese Strategy – Long term thinking
 Art of War by Sun Tzu
 What is strategy?
 What about litigation?
 Isn’t all litigation strategic? – demands so
 FIDA vs AG – Was it strategic? Why?
 Breakdown of Paper- SL, History, SL use
Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference

3. STRATEGIC LITIGATION
 Growth
 State Pressure on unpopular judicial decisions;
UK, Kenya
 Impact; discourse, wins or losses, recognize &
give effect to rights
 Preference for the Court
 Criticisms; uncertainty, delays, risky, corruption,
lack of accountability, adversarial, expensive
Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference

4. HISTORY OF STRATEGIC LITIGATION
 ENGLAND – Somerset v Stewart, Lord Mansfield,
freeing of slaves
 LUIZ GOMA – Brazil, 1870s, 50 slaves
 UNITED STATES - Plessy v Ferguson; Bad SL, Brown
v Board of Education of Topeka; Good SL
 KENYA – MPA 2013, 1882 MWPA s. 17 , discretion of
Judges, discrimination, unfair, uncertainty
Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference

5. USING SL TO SECURE EQUALITY
 Contentious provisions; s. 7, art 27, 28, 45(3), 68(1)
 Human Dignity – quantification of spousal labour
 Indirect discrimination, inherent equality, equal
benefit and protection
 Assessing Impacts – Societal Impact, practicality
 Material, Instrumental & non-material impacts
Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference

6. Conclusion
All rounded approach to
cases
Assessment of resources
available
Recognition of high stakes
and widespread potential
effect
Strategic Legal Mechanisms for Delivering Social and Economic Rights in Africa Conference

7. End of presentation
Questions
Thank You