Possible pitfalls during litigation
Judges can be sceptical of the right to education, have little awareness of international law or be hostile to the poor and to minorities.
It is often difficult for victims to provide proof of discrimination (and the burden of proof lies with the victim – using situational testing can be useful – different individuals/groups similar except for race or ethnicity sent out to document whether one is treated differently from the other.
Litigation can take many years; for example, on average in Nigeria, any case filed in the High Court will take 5-10 years to get a verdict. The courts are terribly congested, are not computerised, and the facilities are lean. Daily, a judge has 60-70 cases. This is certainly one of worst examples but the possible length of judicial proceedings should certainly be borne in mind.
Attempts to increase government spending on social programmes are often not politically popular. In many cases, advocates have had to justify programmes as purely instrumental or economically justifiable rather than because they involve questions of dignity or rights.
The power of the opposing forces extends not only to governments and the private sector, but to citizens as well. The powerful middle class is not always sympathetic and is sometimes openly antagonistic towards the poor.
Often such litigation is hard to control, particularly in class action procedures where the claimant class is not fixed.
Positive rights claims, in particular, have made judges in some jurisdictions cautious about handing down orders due to concerns about the collective impact of the decision, particularly in common law countries where the decision may have legal effect beyond the parties to the case due to the principle of cases being interpreted in the light of previous cases.
However, this concern may be dealt with in a number of ways. For example, public interest organisations may be permitted to intervene to ensure that the Court appreciates the broader context, and remedial orders may be adjusted to take account of any wider implications (by delaying the effect of a judicial order, for instance).
On the other hand, in civil law systems, court orders do not have any effect beyond the parties before the court. Thus, individual applicants appear to be more successful at securing individual relief, while some political momentum or real threat of mass litigation is often needed to extend the remedy to all victims.