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The tide is turning regarding gender transformation in the appointment of judicial officers, says Tabeth Masengu.
Johannesburg - It is said that fortune favours the brave, and exactly a year ago on Saturday that the Democratic Governance and Rights Unit of UCT and its partner, Sonke Gender Justice, launched a groundbreaking complaint to the Commission for Gender Equality.
Citing the president, the minister of justice and constitutional development, the chief justice and the Judicial Service Commission (JSC) as respondents, it detailed shocking statistics of low female representation on the bench. The complaint aimed to trigger a serious examination into what our research suggests is deeply ingrained gender discrimination in the appointment of judicial officers.
Fortune did not, however, favour us as our faith in the commission proved fruitless. An inquiry has been cancelled twice, with no recent communication as to what happens next.
Nevertheless, during this period we have persisted with our research and advocacy in a bid to ensure that gender becomes part of the judicial agenda. It is heartening to note that the depressing inaction of the Commission for Gender Equality has not hampered progress on the matter by other parties.
JSC interviews held from October 8 to 11 have been the best yet in this regard, with Chief Justice Mogoeng Mogoeng playing a leading role in enquiring about the challenges women face in the legal profession.
The chief justice led the way in highlighting the struggle to have more women on the Bench and we applaud him and the other JSC members for that. Seven women have been recommended for appointment from this process, and this would result in a 32 percent female representation on the Bench. This is a far cry from the 22 percent in 2009 and provides a glimmer of hope.
Since April, JSC announcements of shortlisted candidates have included a breakdown of how many candidates are women. We have also witnessed more emphasis on questions to all candidates regarding the importance of gender transformation, with advocates and attorneys being quizzed on their role, if any, in assisting the advancement of women in their professions.
There has also been an improvement in the number of women being given opportunities to act as judges. Lack of acting experience was identified as one of the key obstacles facing women who aspired to judicial appointment, especially as between 2010 and 2012 only 9 percent of the opportunities to act as judges were going to women. In the past eight months alone, 14.5 percent of the opportunities have gone to women, which is more than the combined total in the previous three years.
The tide is turning.
Two judge presidents deserve particular commendation: Judge President Frans Kgomo of the Northern Cape has over the years personally mentored and encouraged a number of successful female candidates, while Judge President Dunstan Mlambo of Gauteng has taken a notably proactive role in giving women opportunities to act in the High Courts in Joburg and Pretoria.
Though there may be others, these two judge presidents have taken it upon themselves to play a role in transforming our judiciary as regards gender and have given many women hope that they, too, can stand up and be counted.
So what was the point of laying the complaint with the Commission for Gender Equality? We believe that transforming our judiciary in terms of gender (and race) will only make the courts richer. First, it legitimises the courts by ensuring that those who serve on them are broadly representative of society. In addition, female judges legitimise decisions of the court by participating in their outcome. This builds public confidence.
Second, having a more gender- representative Bench promotes impartiality and helps identify biases masquerading as common sense. Judges are human and may have blind spots that are more identifiable only once they associate with judges from different genders, races, cultures and backgrounds. Third, the court will be made richer because it will have a plurality of perspectives.
Twenty years into democracy, would our courts not be better if they had a diversity of judges – not just those who went to Model C schools and “top-tier” universities and worked at big firms or attained the status of senior counsel? We also need judges who struggled to get educated, worked long hours as prosecutors and magistrates in the likes of Lusikisiki, Khayelitsha and other challenging environments.
Last, it is symbolic. Having more women on the Bench symbolises women’s full participation in public life. It also symbolises the new times we are living in, when people are not judged by gender, race or status but by what they have to offer our nation. Irrespective of whether the Commission for Gender Equality does anything about our complaint, at least we know people are starting to listen. And that has been worth waiting for.
* Tabeth Masengu is a researcher at the Democratic Rights and Governance Unit at UCT.
** The views expressed here are not necessarily those of Independent Newspapers.