Promoting Socio-Economic Rights Litigation in South Africa and Uganda: The Amicus Machinery

1. Promoting Socio-Economic Rights Litigation in South Africa and Uganda: The Amicus Machinery Christopher Mbazira, Associate Professor School of Law, Makerere University

2. Outline Concept of amicus ESCR in South Africa ESCR in Uganda Amicus in South Africa Amicus in Uganda Way forward

3. ESCRs in South Africa 26. Housing Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

4. ESCRs in South Africa 27. Health care, food, water and social security Everyone has the right to have access to ­ • health care services, including reproductive health care; • sufficient food and water; and • social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. No one may be refused emergency medical treatment.

5. ESCR in Uganda • Some rights in Bill of Rights, others in NODPSP • Education, Art. 30 • Rights of the family, Art. 31 • Rights of women, Art. 33 • Rights of children, Art. 34 • Rights of PWDs, Art. 35 • Rights of minorities, Art. 36 • Right to culture, Art. 37 • Clean and healthy environment, Art. 39 • Economic rights, Art. 40

6. Article 8A 8A National Interest • Uganda shall be governed based on principles of national interest and common good enshrined in the national objectives and directive principles of state policy • Parliament shall make relevant laws for the purposes of giving full effect to clause (1) of this Article

7. Concept of Amicus Curiae • “Friend of court”? – simplistic • Black’s Law Dictionary • A person who is not party to a law suit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter • Meriam-Webster Dictionary • A professional person or organisation that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question

8. Concept of Amicus • Procedure has evolved and gained acceptance from courts • 1946 – 2001, US Supreme Court received 15,214 briefs • International/regional tribunals now allowing amicus

9. Amicus in SA • Judicial endorsed can be traced to case of Connock’s (SA) Motor Co Ltd v Pretorius (1939) TPD 355 The definition of the term is to be found in several legal dictionaries [that] speak of an amicus as a bystander – someone who is present in court and not concerned with the matter in hand, who may be counsel or not … if he observes that judge in doubt about something … asks leave to come to his assistance … and help the judge by pointing out what appears to be in danger of being overlooked

10. Amicus role is now legislated in the rules of court • Rule 10 of the Rules of the Con Court • Subject to these rules, any person interested in any matter before the Court may, with the written consent of all parties in the matter before the Court, … be admitted therein as amicus curiae …. • … • … • If written consent referred to in subrule (1)has not been secured, any person who has interest in any matter … may apply to the Chief Justice to be admitted as amicus curae

11. Constitutional Court appreciating amicus in Grootboom case I might mention that we were helped at the hearing in a most considerable way by the participation of the Human Rights Commission and the Community Law Centre of the University of the Western Cape. Counsel for the Legal Resources Centre appeared on their behalf and succeeded in broadening the debate so as to require the Court to consider the right of all South Africans to shelter, whether they had children or not. .... The case showed the extent to which lawyers can help the poor to secure their basic rights Justice Sachs

12. In Re: Certain Amicus Curiae Applications; Minister of Health and Others v Treatment Action Campaign and Others The role of an amicus is to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for the privilege of participating in the proceedings without having to qualify as a party, an amicus has a special duty to the court. That duty is to provide cogent and helpful submissions that assist the court. The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already before the court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence

13. Amicus Curiae in Uganda?? • No legislation on subject of amicus common law position considers amicus friend of court an amicus curiae is invited by the Court and he should be an independent person without proprietary interest in the case IGG & Anor v Blessed Constructors Limited (1992) VI KALR 160 [F]or orderly conduct of litigation, parties must have the authority to summon their witnesses.  One cannot simply walk into a court room and announces himself as a witness unsolicited.  Secondly, amicus curiae means a friend of court.  Therefore court should be left to choose or approve its friends.  To ensure orderly proceedings witnesses must be summoned by parties to the suit or court.  Amuzata cannot qualify to be amicus curiae ObothMarksons v NRM CA No. 21 of 2009

14. The Uganda Law Society has argued for the amendment of the Civil Procedure Rules to include the subject of amicus: We recommend that the principles governing applications for recusal of a judicial officer and amicus curiae be incorporated in to the Civil Procedure Rules. The committee also recommends that a set of rules be formulated and incorporated in the rules for instances where a person wishes to submit an amicus brief for an unrepresented party in a suit

15. Way Forward • Role of amicus needs to be appreciated and expressly legislated • Proposed amendments to CP Rules need to be comprehensive • Law Clinics have a role to play in nurturing the procedure