SINCE the shortlist of candidates to be interviewed for the Constitutional Court vacancy was made public there has been much concern voiced regarding the absence of women from the list. Many points have been raised about the unacceptablility of the status quo – only two out of 11 Constitutional Court justices are female.
It has rightly been noted that this proves an appalling lack of commitment to judicial transformation. NGOs and the Law Society of SA have justifiably called for a readvertisement of the vacancy to call for woman nominees only.
Some lawyers are suggesting recruit-ment from within academia where a few highly qualified female candidates have been singled out as suitable candidates.
A compelling argument for gender equality in the judiciary is that South Africa is obliged under international human rights law to increase the number of woman judges. As a party to the UN Convention on the Elimination of Discrimination Against Women (Cedaw), South Africa must take measures to eliminate discrimination against women in all spheres.
The AU Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol), to which South Africa is a party, places it under the same obligation.
In 2011, the UN Cedaw Committee, comprising international experts on women’s human rights, recommended that South Africa take measures to accelerate women’s full and equal participation in public and political life. It singled out the judiciary in particular.
This followed an observation that there was a lack of progress in increasing the number of women in the judiciary. Under the treaty, South Africa is obliged to follow up on the recommen-dation and report back to it in 2014. Increasing the number of women in courts, such as the Constitutional Court, is precisely the type of result that the committee would expect.
International law, as articulated in Cedaw and the Women’s Rights Protocol, does not only require equality in law but seeks equality of results – substantive equality. The Judicial Service Commission (JSC) is expected to contribute to ensuring South Africa guarantee substantive equality.
However, there is evidence the JSC lacks understanding of international standards of gender equality, or chooses to disregard them. On January 18, the Centre for Human Rights at the University of Pretoria asked the JSC to reopen nominations for the Constitutional Court vacancy based on the unacceptable gender composition of the shortlist.
The JSC responded that the request would not be granted because the “nomination period was open to the public, for a reasonable period, to encourage suitably qualified person/s, either male or female, to make themselves available, or to nominate such person/s”.
This response is insufficient.
First, by noting that the nominations will not be reopened, it deems as a fait accompli a decision that is simply lacking in resolve to increase the number of women in the Constitutional Court.
The response indicates an assumption of a level playing field between women and men for nomination. But in a highly patriarchal society such as ours, gender bias is entrenched. When nominations are sought primarily from within the legal “fraternity”, is it surprising that no women were identified as suitable candidates?
Instead of the JSC shortlisting only men on the basis of the pool of nominees, actions were required in line with international obligations to go beyond the provision of equal opportunity only.
One such action – recommended by the Law Society of SA – would have been to advertise, targeting women only. This would be precisely in line with Cedaw and the Women’s Protocol and fall under “temporary special measures” provided for in international law to serve the goal of substantive equality. A counterargument raised is that appointments based on merit are compromised when such measures are applied. This argument incorrectly assumes the targeted group is inherently underqualified. It also overlooks the fact that merit is often not assessed in the absence of gender bias.
Another vacancy in the Constitutional Court is due to arise only in 2014. It would be unfortunate if gender-blind recruitment were to be repeated. The JSC, and the president, must take steps proving their commitment to compliance with their obligation under international human rights law to increase the number of women in the judiciary.
The following are some suggestions. First, JSC members should undergo gender equality training to understand the concept of substantive equality. Second, research should be undertaken on possible structural obstacles to high-level judicial appointments for women, including direct and indirect discrimination. Third, the JSC must apply temporary special measures, such as targeted recruitment, when advertising the next vacancy.
Finally, the president must appoint a woman as acting justice when the next vacancy arises.
It is not enough for South Africa to be party to an international treaty without actively taking steps to protect, promote, and fulfil the enshrined rights.
l Karen Stefiszyn is Gender Unit programme co-ordinator at the Centre for Human Rights, University of Pretoria