Strategic litigation is an innovative and integral advocacy approach which uses the justice system to bring about legal and policy change as well as create public awareness on human rights violations. The cases that are taken to court through strategic litigation support the enforcement of existing laws, clarifying ambiguous laws and policies as well as support the development of laws and policies that promote human rights.
The Southern Africa Litigation Centre (SALC) utilizes this approach to promote and advance human rights and the rule of law in Southern Africa. With Support from Hivos, through the Regional Sexual and Reproductive Health and Rights (SRHR) Fund, SALC implemented a ‘Strategic litigation for social change for adolescent SRHR’ project aimed at improving access to and enjoyment of SRHR for adolescents and young persons through using the law as a tool for social change by filing public interest cases and advocacy within the Southern African region, particularly Malawi, Zimbabwe and Eswatini.
In Malawi, SALC supported strategic litigation processes for a case involving a number of learners who fell pregnant at Uhoho Primary School in Nkata Bay, Malawi and were expelled and detained, together with the boys suspected to be responsible for the pregnancies and their parents, until they paid fines. SALC worked with local partners, Youth Watch Society (YOWSO) and Victor Gondwe of Tennyson and Associates to file a High Court application for judicial review of the decision of the Magistrate to fine and detain the learners and their parents.
The judgement in the matter was handed down by the High Court, Mzuzu in April 2019. The judgement raised awareness on the lack of a rights-based approach to management of learner pregnancy and ensured accountability for violation of human rights. The judgement also provided an opportunity for stakeholder engagement and awareness raising on punitive approach to management of learner pregnancy, and the findings of the court. This contributed to the operationalization of a revised learner pregnancy management policy.
This case study showcases the story of the Uhoho learners and the role of strategic litigation in ensuring justice for the learner’s human rights violations as well as influencing policy change.
The case study is part of a series of documentation of partners’ implementation of ASRHR advocacy approaches, best practices and lessons learnt as a way to foster advocacy and programmatic cross-learning between partners and other players in the SRHR field. This initiative has been made possible with support from Sida through the Regional SRHR Team at the Embassy of Sweden in Lusaka.