Publication Date

2016

Volume

41

Document Type

Article

Abstract

Standing doctrine can play an outsized role in marginalized groups' ability to protect their constitutional rights. The cultural and political dynamics in developing countries routinely undermine the proper functions of the democratic system and make it unlikely that those parties most directly deprived of their rights will be heard by elected legislatures or be able to directly access courts. The vindication of their rights and the rule of law itself depend on the ability of others to litigate on their behalf. Thus, this article argues for the expansion of standing doctrine to protect the democratic ideal in emerging democracies. Using Kenya and Uganda as case studies, this article demonstrates that "third party public interest standing" — the permission of third parties to institute judicial review proceedings on behalf of injured parties — serves two key ends. First, it allows for the discursive empowerment of marginalized groups. Second, in doing so, it enhances democracy.

Third party public interest standing is viewed with suspicion by many western supporters of democracy, but that suspicion is premised on faulty assumptions. The political and social contexts in many developing nations make overly strict limitations on standing dangerous to the rule of law. Where the executive and parliament are unresponsive or unaccountable to the population, and where access to the judiciary is near impossible for certain segments of the population, third party standing may create the only opportunity for political presence. This article both challenges the traditional perceptions of democracy and constitutionalism as inappropriate and incompatible with the needs of emerging democracies, and recognizes that innovations such as third party public interest standing are necessary to further constitutional, democratic, and rule of law goals.

Comments

Posted with permission of the Yale Journal of International Law, 2016.

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