20 April 2015 – The preamble to the African Charter stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”. Article 3 provides that “every individual shall be entitled to equal protection of the law.” In relation to the selection of judges – those who are tasked to ensure the fair application and “equal protection of the law” – the South African Constitution goes further. It requires that judges broadly reflect the racial and gender composition of the country. The fair application and equal protection of law requires the input of judges with different perspectives and life experiences. It is of concern that many of Africa’s appellate courts, regional economic community courts, and the African Court (AfCHPR) lack adequate representation of female judges.
Traditional notions of judicial deliberation require judges to try and distance themselves from their past and current experiences, but this is not always possible. Judges are called upon to apply the law fairly and equally, and to play their part in the development of jurisprudence. But jurisprudence is often dependent on context. The African context is nuanced and different to the jurisdictions that imposed their law on Africans; as are the views of individual African judges. However, like in the jurisdictions of Africa’s colonisers, patriarchy remains pervasive. But this can change. It must.
As a result of Africa’s relatively recent independence and establishment of its regional mechanisms, it is younger in time and jurisprudence. In most, if not all, of its courts, jurisprudence is still being developed and, often, it is being written for the first time. Decisions and the jurisprudential legacy that they leave are often determined by the personal experiences and ideologies of the judges making them. Currently, the voices of female judges are not being adequately heard and their experiences are not informing judicial decision-making, thus creating concerning gender-biases in Africa’s nascent jurisprudence. These gender-biases can have the effect of fortifying patriarchy and suppressing the female voice in Africa’s legal development.
By way of examples, South Africa’s Constitutional Court, contrary to the stated requirements of the South African Constitution, currently has only two permanent female appointments out of eleven possible positions. (On the concerns surrounding the delay in appointing a permanent judge and the multiple acting appointments to the Constitutional Court see a recent post by Leo Boonzaier.) The Supreme Court of Kenya has two (out of seven) permanent female appointments. More problematically, the Supreme Court of Nigeria has only three (out of fifteen) permanent female judges. Accordingly, out of 32 possible judicial appointments in three of Africa’s prominent appellate courts, only seven of the positions, or 21%, are filled by female judges. Of further concern is that all of the current Chief Justices of these appellate courts are male.
From a regional standpoint, the situation remains concerning. Zimbabwe’s Justice Antonia Guvava is the only female member of the Southern African Development Community’s ten‑member Tribunal (SADC-T). The East African Community Court of Justice’s (EACJ) Appellate Division does not have one female judge (out of a panel of five judges) and its First Instance Division only has one female member (out of a panel of five judges). The situation at the Economic Community of West African States’ Community Court of Justice (ECOWAS Court of Justice) is different – three of the Court’s seven members are female, including the President. In the AfCHPR, only two (out of the eleven) current judges are female and only two of its eleven former judges were female appointments. The African Commission is the only judicial mechanism, of those examined, which has a majority of female appointments with six of the eleven commissioners being female.
So, on a regional level, and out of the five mechanisms examined, out of 49 possible judicial appointments only thirteen of the positions, or 26%, are filled by female judges. Of the 81 possible judicial appointments in the eight judicial mechanisms examined, only 20 judicial positions, or 24%, are filled by females. This is on a continent which, according to the 2014 African Economic Outlook, has an equal gender distribution.
Today, South Africa’s Constitutional Court will hand down its 566th judgment. In its 20-year history, only four female voices out of a collective of 24 current and former permanent judges have deliberated and determined the course of South Africa’s constitutional jurisprudence. (Meghan Finn has already highlighted concerns around the impact of the Hugo judgment and the Court’s narrow approach to gender jurisprudence in a recent post. The Judges Matter Coalition has raised similar concerns.) The EACJ has handed down 49 judgments over the past ten years, without adequate female voices entering the jurisprudential debate. As societies continue to challenge patriarchy and reconceptualise gender-roles, urgent steps need to be taken to ensure that the decisions of African courts, and the impact that these decisions will have for years to come, are made by judges who broadly reflect the gender composition on the African continent. To do otherwise will allow for an unconsidered and partial development of African law.
African courts should follow the example set at the African Commission. The guardians of our laws should be equals and all of their voices should be heard. However, as Tim Fish Hodgson and Mateenah Hunter have correctly argued, the duty to develop jurisprudence that has appropriate regard to gender is not solely dependent on the gender of a judge. We need judges who engage with gender-bias and imbalance. While actively seeking to make female appointments, selection panels should be quick to question all applicants on their ideologies in relation to gender and society, and they should ensure that all applicants are treated equally during the selection process. It is only in doing this that we can move closer to truly guaranteeing that every individual is afforded the equal protection of the law.