When we think about strategies for advancing the rights of young children, we typically think about legislation, policy, and advocacy. Litigation — the use of courts to vindicate rights — is far less common in the early childhood space, particularly in the African context. CECJ believes this is a missed opportunity.
Strategic Litigation: What It Is and Why It Works
Strategic litigation involves bringing carefully selected cases before courts not just to vindicate the rights of individual litigants, but to establish legal precedents that benefit a broader class of rights-holders. In the context of early childhood, this might mean challenging a government's failure to fund pre-primary education at constitutionally required levels, or seeking a declaration that domestic legislation is inconsistent with treaty obligations regarding the right to nutrition or healthcare for young children.
Courts have several advantages as accountability mechanisms. Their decisions are binding. They can require specific remedial action. And they operate in a relatively depoliticised environment where the strength of the legal argument, rather than political power, is determinative — at least in theory.
Landmark Cases
There is a small but growing body of case law relevant to early childhood rights. The South African Constitutional Court's decision in Government of the Republic of South Africa v Grootboom established that socio-economic rights — including housing rights that directly affect young children — are justiciable and must be given effect through reasonable government action. The Court's subsequent jurisprudence on the right to food, the right to healthcare, and the right to education has expanded this framework.
In Kenya, the High Court has found that the state's failure to provide adequate healthcare to children — including children under five — constitutes a violation of constitutional rights. In Uganda, civil society organisations have successfully used the courts to challenge inadequate budget allocations for basic services that affect young children.
Barriers and Opportunities
Despite these examples, strategic litigation on early childhood rights faces significant barriers. Young children cannot represent themselves, and legal aid for litigation on their behalf is almost entirely absent. Parents and guardians may be reluctant to bring cases that expose family circumstances to judicial scrutiny. Civil society organisations with the capacity to bring public interest litigation often prioritise other areas.
CECJ is working to address these barriers by building litigation capacity within the early childhood civil society sector, developing model pleadings for strategic cases, and connecting lawyers with cases that have clear precedent-setting potential. Courts alone will not close the early childhood legal gap — but they are a tool we cannot afford to ignore.