Most work to secure the rights of young children happens through laws, policy and advocacy. Court cases barely feature in that conversation, especially across Africa. That is a gap.

Litigation is slow. It can be expensive, demanding and uncomfortable for the people involved. Still, a well-chosen case can force government to answer for a failure that has been left unresolved for years.

What strategic litigation can do

Strategic litigation brings a carefully chosen case before a court with the aim of securing a ruling that reaches beyond the people named in it. A decision can clarify the law, set a precedent, and give other children and families a stronger basis for claiming their rights.

In early childhood, a case might challenge the failure to fund pre-primary education. It might ask a court to examine whether a law meets the State's obligations on nutrition, healthcare or protection for young children.

A court judgment carries legal force. Courts can require a government agency to act, prepare a plan, allocate resources or report back on progress. Cases are argued through law, evidence and facts, giving advocates a space that operates differently from political negotiations.

What the cases show

South Africa has some of the clearest examples. In Government of the Republic of South Africa v Grootboom, the Constitutional Court found that the government's housing programme excluded people living in desperate need. The Court held that the State had to develop and implement a reasonable programme that included relief for them. The families at the centre of the case included children living in deeply insecure conditions.

The link to early childhood became even clearer in Minister of Health v Treatment Action Campaign. The government had limited access to nevirapine, a medicine that reduced mother-to-child transmission of HIV, to a small number of research sites. The Constitutional Court ordered the government to remove those restrictions and put in place a comprehensive programme to prevent transmission. It was a case about pregnant women, public health systems and babies whose lives depended on timely care.

In Governing Body of the Juma Musjid Primary School v Essay NO, the Court also affirmed the State's duty to protect children's access to basic education. Together, these decisions show that courts can examine whether government action meets constitutional duties in health, housing and education.

Uganda offers a particularly important example. Centre for Health, Human Rights and Development (CEHURD) and 3 Others v Attorney General grew out of the deaths of two women during childbirth in public health facilities. CEHURD and family members of the women argued that government failures, including shortages of trained staff, essential medicines and maternal health supplies, violated constitutional rights. They also raised the issue of inadequate funding for maternal health.

The Constitutional Court initially dismissed the petition in 2012, treating it as a political question. CEHURD appealed, and in 2015 the Supreme Court sent the case back for a hearing on its merits. The Court made an important point: when people allege that government acts or omissions violate the Constitution, courts have a duty to hear the case.

In 2020, the Constitutional Court ruled for the petitioners. It ordered government to prioritise and allocate sufficient funding for maternal healthcare in the next national budget, train maternal health workers, equip health centres, and submit progress and audit reports to Parliament and the Court. Its connection to early childhood is direct. A child's survival and health in the first hours of life depend on the care available to the mother during pregnancy and childbirth.

The barriers are real

Young children depend on adults to bring cases for them. Legal aid for these cases is scarce. Parents and guardians may fear exposing private family circumstances in court. Civil society organisations with litigation experience are often already carrying a heavy load.

At CECJ, we are working to build litigation capacity within the early childhood civil society sector, prepare model pleadings, and connect lawyers with cases that could set meaningful precedents.

Courts are one route to accountability. Early childhood advocates need the skills, relationships and confidence to use them when the moment calls for it.