Course 33: Proactive Litigation Against Government and Enforcement Actions by https://padlet.com/hathasimonton/kl94znb0vdqm85qv Please refer to TalentLMS for detailed instructions. Post your response by clicking the "+" below your name. en-us 2022-07-09 18:29:42 UTC 2022-07-13 14:20:00 UTC hello@padlet.com jtalibita https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2240992023 Yes, a citizen or a Non-State acting entity duly registered can prosecute or litigate to defend, promote or seek court declarations that a government institution authorized by law to protect the law has abdicated its duty as is herein the problem question raised in the brief facts. 
 
1.     Citizen duty to protect laws Constitution of Uganda;
2.    Article 38 of Uganda’s Constitution lists civic rights for citizens either individually or in association with others to take part in government programs including law, budget or policies processes and in this case defending the law because Uganda’s Criminal procedure also allows private prosecutions much as the Director public prosecutions is constitutionally charged with all public prosecutions; 
3.    Constitutional Right to access to courts to defend the law violated;
4.     Section 5 (b) of the Uganda Communication Act of 2013, makes it a function of the Uganda Communications Commission to monitor, inspect, license, supervise, control, and regulate communications services;
5.    Tobacco control Act comprehensively bans Tobacco Advertising Promotion and Sponsorship;
6.    Section 26 of the Tobacco Control Act lists enforcers of the Tobacco Control Act including any persons on who the law imposes the duty to enforce the law;
7.    Section 19 of the Tobacco Control Act imposes a duty on the government to protect public health policies from commercial and other vested interests of the tobacco industry; and 
8.    Section 17 of the Tobacco Control Act bans, the importation, and offering for sale of toys or items that mimic tobacco products. 
 
Questions
 What counter-arguments would you have expected to be opposed?
 
1.   Public prosecutions initiated by private individuals have been takeover by the DPP are then stalled;
2.   That the Ads did not advertise cigarettes and were not explicitly intended for that purpose; 
3.   That right to information, educational purposes, that the front group is not the accused and was acting on a frolic of their own; hypothesis 

d) What additional challenges should you consider when designing the strategy for such type of litigation?
1.   Accreditation for tobacco control; Objective clauses of the legal NGO, 
 
 

]]> 2022-07-11 12:10:55 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2240992023 jtalibita https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241026860 Yes, a citizen or a Non-State acting entity duly registered can prosecute or litigate to defend, promote or seek court declarations that a government institution authorized by law to protect the law has abdicated its duty as is herein the problem question raised in the brief facts. 
 
1.     Citizen duty to protect laws Constitution of Uganda;
2.    Article 38 of Uganda’s Constitution lists civic rights for citizens either individually or in association with others to take part in government programs including law, budget or policies processes and in this case defending the law because Uganda’s Criminal procedure also allows private prosecutions much as the Director public prosecutions is constitutionally charged with all public prosecutions; 
3.    Constitutional Right to access to courts to defend the law violated;
4.     Section 5 (b) of the Uganda Communication Act of 2013, makes it a function of the Uganda Communications Commission to monitor, inspect, license, supervise, control, and regulate communications services;
5.    Tobacco control Act comprehensively bans Tobacco Advertising Promotion and Sponsorship;
6.    Section 26 of the Tobacco Control Act lists enforcers of the Tobacco Control Act including any persons on who the law imposes the duty to enforce the law;
7.    Section 19 of the Tobacco Control Act imposes a duty on the government to protect public health policies from commercial and other vested interests of the tobacco industry; and 
8.    Section 17 of the Tobacco Control Act bans, the importation, and offering for sale of toys or items that mimic tobacco products. 
 
Questions
 What counter-arguments would you have expected to be opposed?
 
1.   Public prosecutions initiated by private individuals have been takeover by the DPP are then stalled;
2.   That the Ads did not advertise cigarettes and were not explicitly intended for that purpose; 
3.   That right to information, educational purposes, that the front group is not the accused and was acting on a frolic of their own; hypothesis 

d) What additional challenges should you consider when designing the strategy for such type of litigation?
1.   Accreditation for tobacco control; Objective clauses of the legal NGO, 
 
 

]]> 2022-07-11 13:16:30 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241026860 GROUP 3 https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241161805 It is trite that only natural persons or juristic persons have the capacity to sue and be sued and this is in no way different under the Nigerian law. Hence, it is possible for an NGO or an individual to bring a claim against the National Rail company for failing to comply with its duties under the National Tobacco Control Law.

1. The potential remedies available for the train passengers include both civil and criminal remedies i.e punitive sanctions to the train station representatives for not stopping passengers from smoking in areas where smoking was prohibited; monetary compensation can be awarded to successful claimants for exposure to tobacco smoke, health care cost etc

2. Nigeria's Tobacco Control Law does not permit enforcement by private individuals or organizations. S. 20 of the National Tobacco Control Regulations 2019 highlighted the authorized officers for the purposes of enforcement as the Police, public Health Officers; National Security and Civil Defence Corps Officers; Environmental Health Officers of the Federal Capital Territory and of each State of the Federation; Customs Officers; Consumer Protection Council Officers ; Standards Organisation of Nigeria Officers ; National Agency for Food and Drug Administration and Control Officers : and National Drug Law Enforcement Agency Officers. 

3. Yes, the general law or constitution of Nigeria allow for private prosecutions of laws.

4. Yes, class action lawsuits for damages are permitted in Nigeria as contained in the varying rules of court and it is a viable
remedy for this scenario even though it is one adequately under-utilized in Nigeria.

5. The National Rail Company's counterargument could be that they have taken reasonable measures to ensure prevention and done all required of them by the law hence they are not liable for individual actions.

6. I believe NGO's instituting a public interest litigation to push for higher standards of implementation of the smoke-free law will be most effective in a country like Nigeria to achieve a positive result
]]> 2022-07-11 16:47:15 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241161805 Group 3 https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241833285 a) In accordance with the Tobacco Control 2010 (Article 20, 26) remedies that can be taken by the train passengers are both civil and criminal.

b) Article 20 of the tobacco control law permit enforcement by organizations that have tobacco control in their mandate and have been regularly declared for at least one year one year on the date of the facts.

c) The general law allows private prosecutions of laws. 

d) Class-action is permitted and can be in this case a viable remedy. 

e) Rail company arguments:
-       Measures are taken as required by the law to guarantee a smoke-free place to the passengers.
-       Smokers must be punished as they are using tobacco products outside of the designated area.
 
f) Class-action led by public health and tobacco control organizations can be of help for full enforcement of the ban on smoking in public places.
]]> 2022-07-12 12:36:45 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2241833285 Getahun - Group 2 https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242493613  
 
1.    It is possible to bring such suit against the authority in charge of administering food and medicine safety and consumer protection.  Article 61 of the Tobacco Control law states the following; All direct or indirect tobacco products advertising, promotion or sponsorship shall be prohibited.
 
Article 61 States: No person may;
·      initiate any advertising, tobacco products promotion, or sponsorship 
·      produce, publish, distribute, or make accessible any tobacco products advertising, promotion, or sponsorship content; or 
·      engage or participate in any tobacco products advertising, promotion, or sponsorship as media or event organizer, celebrity or other participant, as a recipient of any sponsorship contribution, or as an intermediary that facilitates any such contribution. 
 
and any violation of this is punishable both in imprisonment and fine
 
Article 69(18)  of the law provides;
Any person who contravenes the provisions of this proclamation regarding prohibition or limitations on advertising, promotion, and sponsorship activities shall be punishable by imprisonment for not less than three months and a fine from Birr thirty thousand to Birr one hundred thousand. 
 
But the suit cannot be brought before a court by an “ individual citizen”. The procedural law of the country require standing and the petitioner must be an “interested party. If the suit is a criminal suit, it shall between by the prosecutor. 
 
2.     The suit cannot be brought before court by an individual citizen. If the suit is a civil suit it shall be brought by an interested party. An individual citizen that is not directly affected by the act of the media cannot be an interested party. If this is a criminal suit, the public prosecutor has to institute a charge after an investigation by the police.
3.     The authority may argue that it is not advertisement for the tobacco industry and there is no any association of the sign, picture or mark to any tobacco product. 
4.     The challenges will be the absence of such jurisprudence and experience. Such suits can also be considered luxury in Ethiopia where we have other violations of other laws that are considered more important than consumer protections. Jurisprudence of human rights litigations against the Government is the least developed and it can be a mountain task. Advocacy and awareness works need to be done first before we embark on legal and judicial actions. Such suits, if any, may be better done by Civil Society organizations working on the area than an individual citizen.

There was an NGO called Action Professionals' Association for the People (APAP) and used to bring actions before the Government and companies representign the public on Environmental matters.
]]> 2022-07-13 08:30:47 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242493613 GROUP 1 Foluke https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242525150 a)Section 33 and 35 of Nigerian Constitution provides for right to life and personal liberty. it is possible to file a legal action in Nigeria. the Nigerian Tobacco Act also allows for legal action against Tobacco Companies.
 
b)This type of Claim can be brought under enforcement of fundamental Human Rights which can be filed either at the State high court or at the Federal High court
 
c) Counter-arguments that should be expected is that
d) Additional challenges that can be considered include the influence of tobacco company on the litigants. Many public interest litigations that were filed could not be successful and concluded because of external influence which may come in various form.
The Attorney- General of Lagos state filed a public interest litigation which was abandoned without any concrete reason. this may be due to influence of tobacco companies on the litigants.
Another challenge may be lack of awareness by the government officials, judicial officers and law enforcement agencies.
]]> 2022-07-13 09:36:38 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242525150 FOLUKE - GROUP 1 Foluke https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242525230 a)Section 33 and 35 of Nigerian Constitution provides for right to life and personal liberty. it is possible to file a legal action in Nigeria. the Nigerian Tobacco Act also allows for legal action against Tobacco Companies.
 
b)This type of Claim can be brought under enforcement of fundamental Human Rights which can be filed either at the State high court or at the Federal High court
 
c) Counter-arguments that should be expected is that
d) Additional challenges that can be considered include the influence of tobacco company on the litigants. Many public interest litigations that were filed could not be successful and concluded because of external influence which may come in various form.
The Attorney- General of Lagos state filed a public interest litigation which was abandoned without any concrete reason. this may be due to influence of tobacco companies on the litigants.
Another challenge may be lack of awareness by the government officials, judicial officers and law enforcement agencies.
]]> 2022-07-13 09:36:49 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242525230 Suing the government Demoz https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242557822
  • Ethiopia ratified the WHO FCTC in 2014 and adopted a tobacco control law in 2019, the Food and Medicine Administration Proclamation No. 1112/2019
  • The FCTC imposes a duty on the member states to take various measures to protect the public from exposure to tobacco (article 5(1)(b) and 8 (2) of the FCTC)
  • It is a scientifically proven fact that exposure to tobacco smoke causes death, disease, and disability. 
  • Article 48 of proclamation No. 1112 provides places where smoking is prohibited, (indoor work and public places, communal areas of apartments, public transport, indoor and outdoor government facilities, health facilities, etc.) 
  •  The right to life is recognized under articles 14 and 15 of the Ethiopian constitution. `Every person has the inviolable and inalienable right to life the security of person and liberty.` Further, the constitution provides the right to a clean environment. `All persons have the right to a clean and healthy environment.` (Art. 44(1))
  • The government has the duty to obey and enforce the constitution. 
    • Based on these premises:-
    1. It is possible for an individual or CSOs to institute a claim against the government for its failure to enforce smoke free laws. The latest Federal Courts Proclamation No. 1234/2021 state under article 11(4) that `Any person who has vested interest or sufficient reason may institute a suit before the Federal High Court to protect the rights of his own or others.` Hence, public interest litigation is possible.    
    2. However, there is no special procedure provided to deal with public interest litigation. Proclamation No. 1234 simply refers that the court may use the ordinary procedure to entertain cases initiated as per article 11(4). 
    3. expected Counter arguments are:-
    • There is no evidence that proves how many individuals are actually impacted by exposure to tobacco smoke. 
    • Also, there is no sufficient reason for individuals or CSO to institute claims on behalf of other
    • The government is doing its best to implement the law with available resource  
    4. additional challenges to be considered:-
    • Courts may not be independent to pass judgment against the government
    • Judges may be not familiar with the impact of tobacco and hesitate to prioritize and may approach the case with a negative perception
    • Obtaining substantial evidence to link victims and their exposure and/or prove the existence of exposure  

    ]]>     2022-07-13 10:54:30 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242557822     Group 2 https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242569776  
    1.    Is it possible to file a legal action like the one described above in your country?
     
    Yes individuals and Civil society can bring a civil or criminal claim. Civil society has locus standi to sue if the have a direct and substantial interest in the issue. If the claim is based on the Bill of Rights section 38 of the Constitution the grounds on which a litigant may have locus standi are listed including:
    •           anyone acting in his own interest; 
    •           anyone acting as a member of, or in the interest of, a group or a class of persons; 
    •           anyone acting in the public interest;
     
    The Tobacco Products Control Act of 1993 defines advertisement widely as any commercial communication or action with the aim, effect or likely effect of promoting brans, tobacco products, use or manufacturers, this kind of action would be covered. A weakness in the Act is on enforcement, it lists penalties and offences without specifying who is responsible for enforcing the laws.
     
    Actions could be brought to the Advertising Regulatory Board which administers the widely-accredited Code of Advertising Practice which regulates the content of South African advertising. However, the code focuses on standards for accuracy and honesty that businesses must stick to, and does not refer to advertisements that violate country laws.
     
    Preferably claims would be brought to the Minister of Health for failure to enforce as the custodian department for Tobacco Control laws. 
     
     
    2.    Is there a special procedure in your country for this type of claim?
     
    Civil procedure formal rules and standards that courts follow when adjudicating civil cases would apply.
     
    3.    What counter arguments would you have expected to be opposed?
     
    That there was no explicit mention of the company's products
    The rights to freedom of expression and right to communicate to adult consumers

    4. What additional challenges should you consider when designing the strategy for such type of litigation?

    Opposition on why the tobacco company and not government agency was sued.
    ]]>     2022-07-13 11:24:13 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242569776     Group 3 https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242638245 (1) Remedies available for train passengers

    (a) A declaratory order for violation of the  right to clean and healthy environment and protection from exposure to second-hand smoke(Ar. 42 of the Constitution of Kenya and section 32(1) of the Tobacco Control Act, No. 4 of 2007).

    (b) A declaratory order for violation of the right to highest attainable standard of health (Ar. 43 (a) of the Constitution).

    (c) A declaratory order for violation of right to life (Ar. 26 of the Constitution of Kenya)

    (d) An award of damages for violation of violation of rights under (a)-(c) above. (section 13 (7) Environment and Land Court Act)

    (e)  An order of Mandamus to compel the National Rail Company to enforce the tobacco control laws (regulation 17 of the Tobacco Control Regulations of 2014).

    (2) Enforcement  of tobacco control laws by private individuals and organizations.

    (a) Section 32 (1) of the Tobacco Control Act No.4 of 2007 provide and I quote:

    "Right to smoke free environment
    (1) Every person has a right to a clean and healthy environment and the right to be protected from exposure to second hand smoke "

    The Right to clean and healthy environment is also protected under Ar. 42 of the Constitution.

    The power to enforce the rights which have either been denied, violated, infringed or threatened  is vested in every person (Ar.22 of the Constitution). A person has been defined under Ar. 60 of the Constitution as 'includes a company, association or other body of persons whether incorporated or unincorporated.'

    In light of the above private individuals or organizations have authority under law to enforce tobacco control laws

    (b) Regulation 17 of the Tobacco Control Regulations of 2014, require manager or owner of a prohibited smoking area to:-

    (i) ensure that ash trays and all other accessories used to consume tobacco products are removed from the area;
    (ii) Supervise observance of a smoke free environment;
    (iii) take steps to discourage individuals from smoking on the premises including
    * require a person not to smoke or to stop smoking in the area
    *discontinue services to the person smoking in the area
    *require the person to leave the premises
    * contact authorized officer or law enforcement officer and authorities to enforce the law if a person refuses to comply.

    contraventions of these regulations constitutes an offence and will attract on conviction a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding 3 years.

    (3) Private Prosecution of Laws.
    Exercise of prosecutorial powers by private individuals is subject to grant of permission by the court of law. One has to demonstrate the failure by the Director of Public Prosecution to discharge the prosecutorial duties before being allowed to institute private prosecution of criminal cases.

    (4) Class Action Lawsuits

    Order 1  Rule 8 of the Civil Procedure Rules  provides that where there are numerous persons who have the same interest any one of or more of them may commence proceedings representing all except one or more of them.

    (5) National Rail Company's Counterarguments

    (i) smoking takes place at the designated smoking areas.
    (ii) Complied with smoke free laws
    (iii) smoking not prohibited at the train docks
    (iv) volenti non fiti injuria -  ” a person who knowingly and voluntarily risks danger cannot recover for any resulting injury"

    (6) Overall Strategy.

    empowering both the public and private institutions/individuals to enforce smoke free laws.


    ]]>     2022-07-13 13:39:33 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242638245     Group 2 Task https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242654336 1.      Yes. The constitution of Kenya, 2010 allows  an aggrieved citizen in a similar context to institute proceedings against the necessary actors.

    Article 22 of the COK provides that ‘Every person has the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened. ’

    2.  a “In addition to a person acting in their own interest, court proceedings under clause (1) may be

    instituted by a) a person acting on behalf of another person who cannot act in their own name;

    b) a person acting as a member of, or in the interest of, a group or class of persons;

    c) a person acting in the public interest;

    d) an association acting in the interest of one or more of its members.”

    Under Article 258 of the Constitution entitles every person the right to institute court proceedings, claiming that the constitution has been contravened, or is threatened with contravention.

    Further Kenya is a party to the WHO FCTC and as such is bound by the provision on advertising and sponsorship of tobacco. Additionallly, the Tobacco Control Act imposes a ban on all forms of advertising and promotion of tobacco products. 

    2.     This claim by the citizen may be brought in the form of a public interest claim as encapsulated under Article 22 (2) ( c) a person acting in the public interest. 
    3.      Likely counter arguments
    -Arguments that the tobacco, the citizenry has freedom to access information and hence the need to dispense information through the advertisement medium.
    -Freedom of choice, autonomy and agency for persons who wish to use tobacco products. 

    4. Additional Strategy

    The aggrieved party may employ the following strategy for success of the law suit: 

    a) Identify the right parties with relevant knowledge and expertise in the field.- For purposes of framing the issues, collecting empirical evidence and arguing the case. 

    c) Identify the right expert and seek advice before filing of the suit on expertise knowledge.

    d) Asses the security and safety of the witnesses before trial, during trial and after trial.- Tobacco Industry may employ its financial muscle to compromise witnesses hence a need to employ necessary witness protection safeguards

    e) Assess if there are conflicting issues between the parties and other stakeholders likely to

    affect the free trial of the suit.

     

    ]]>     2022-07-13 14:00:59 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242654336     Philip - Kenya https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242669880  

    a)   Is it possible to file a legal action like the one described above in your country?


    Yes it is possible. 

    Article 22 of the 2010 Kenyan constitution grants locus standi to every citizen to institute court proceedings where a particular right has been denied, violated, infringed or threatened.

    b)   Is there a special procedure in your country for this type of claim?


    There is no special procedure. 

    One would ordinarily approach the High court (Constitutional division) via the conventional way of a petition setting out the claims of rights infringed and the prayers/reliefs sought there from supported by affidavits and witness statements exhibiting the evidence justifying the suit.

    c)   What counter-arguments would you expect to be used?


    A lack of evidence on the supposed injury to health caused by tobacco use

    A reliance on the other rights under the constitution such as the right/freedom to choose, privacy, economic and social rights.


    Lack of specificity 

     

    d)   What additional challenges should you consider when designing the strategy for such type of litigation?


    Financial resource disparity to mount litigation of this nature


    Acquiring the goodwill & support of various key government entities

    Level of sensitization among judges & magistrates on tobacco control matters.


    Similar local or foreign judicial precedent relied upon in previous decisions by Kenyan courts

    ]]>     2022-07-13 14:20:00 UTC https://padlet.com/hathasimonton/kl94znb0vdqm85qv/wish/2242669880