Reflections on the new chief justice and looming ANC presidency

Supreme Court of Appeal President Justice Mandisa Maya was the only only woman to have been shortlisted in the search for the country’s next chief justice. Picture: Timothy Bernard/African News Agency (ANA)

Supreme Court of Appeal President Justice Mandisa Maya was the only only woman to have been shortlisted in the search for the country’s next chief justice. Picture: Timothy Bernard/African News Agency (ANA)

Published Feb 22, 2022

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Supreme Court of Appeal President Justice Mandisa Maya was the only only woman to have been shortlisted in the search for the country’s next chief justice. Picture: Timothy Bernard/African News Agency (ANA)

We are fresh from President Cyril Ramaphosa’s state of the nation address (Sona) delivered on Thursday. Divergent reflections from many commentators have been made. For me, the address clearly served to confirm that this country is at the crossroads.

Critical areas of concern in this regard include security, immigration, corruption, unemployment and governance generally. The matter of the appointment of the chief justice of the Constitutional Court is critical in this scenario. The JSC interviews for this position certainly preoccupied our minds last week. Their robustness will remain a highly commendable feature that has contributed to the quality thereof, at least from a nonconformist perspective.

The plus in this respect has been the rare opportunity afforded us to see what lies behind and beyond those judges’ robes. Without that robust posture by a handful of commissioners, the nation would not have been exposed to the unfashionable reality that judges are not infallible. It then dawned on me that, honestly speaking, some of these people are extremely overrated.

But what seemed to escape our focus in this context is the significance of the gender dimension, especially given the fact that only one woman, Supreme Court of Appeal president Mandisa Maya, was nominated. I think our general discourse or commentary on this issue, before and after the interviews, has been a bit pedestrian.

On March 8,1987, the late revolutionary leader of Burkina Faso, Thomas Sankara, strongly pronounced on gender equality and “women emancipation” as an integral part of the revolution and the resultant freedom. Many nations have, on paper, embraced this perspective.

“The revolution and women’s liberation go together. We do not talk of women’s emancipation as an act of charity or because of a surge of human compassion. Women hold up the other half of the sky”, said Sankara. It is through this hawkish eye that I observed the televised interviews of the four qualified judges: Acting Chief Justice Raymond Zondo, Judge President Dunstan Mlambo, Justice Mbuyiseli Madlanga, and of course, Maya. I was overawed by their stellar performance. I was even more intrigued by the manner in which the three male candidates “managed” the commanding logic and imperative for South Africa to finally have its first female chief justice.

Linguistically, the usage of the logical connector or word “but” is hugely powerful. It can move mountains, so to speak. Briefly, all male judges said they were not opposed to the idea of us having a female chief justice. Yet, they have made themselves available for consideration by the president.

It’s a question of “I agree, but…” They even thoroughly explained their “progressive” viewpoints and contributions regarding gender transformation in the judiciary. Responding to Julius Malema’s question, Judge President Mlambo was clear that he doesn’t believe we should “hang our heads in shame” because certain processes (read transformation) are slow; and he even gave the example of Kenya having just recently appointed a female top judge since its independence. What about Kenya? Whataboutism.

Gender equality was correctly expected to preoccupy the JSC panel. This issue, specifically the compelling need for a black woman as the head of the judiciary inevitably became central. It is sad and utterly shameful that in the 28 years of the so-called “democracy”, we have yet to have a female chief justice. The picture is the same in the political leadership of the government. We have never had a female president in this country. I don’t think it’s a sheer coincidence! We must therefore understand the endemic nature of patriarchy and its manifestation, because it’s a phenomenally omnipotent and omnipresent monster. Like racism, it cuts so deep!

It’s worrisome that this rainbow dispensation continues to echo rhythmic catchphrases of equality, particularly on critical issues of gender and race. It is embarrassing that we are still pontificating and egg-dancing on this fundamental issue of a female chief justice. In fact, we have not even had a female deputy chief justice in the post-1994 legal administration. It’s interesting that even the apartheid South Africa never had a female top judicial figure. So, we have carried the apartheid baton with aplomb? Our Constitution purports to be promoting “equality” and “inclusivity” in its preamble and founding provisions. But this is simply rhetoric and lies. Equality must be in deed, letter and spirit. We need to bear this in mind in our analysis of the socio-political realities.

A line in the preamble to the Constitution reads, “We, the people of South Africa, recognise the injustices of the past… Believe that South Africa belongs to all who live in it, united in our diversity”. It’s a fundamental issue of social justice to appreciate the fact that part of the past injustices entailed the exclusion of black people and women from certain positions in various sectors, including the judiciary. Secondly, the discourse of South Africa “belonging to all who live in it”, should practically, not only in letter, include black women. Almost 30 years into the so-called “democracy”, black women do not seem to belong here. As Sankara would have pointed out in 1987, “there is something crucial missing: women. They have been excluded from this joyful procession”.

Patriarchy and gender discrimination manifest themselves in various smart and sophisticated of ways. We have somehow allowed terminology proposed to strategically exclude women from critical positions to creep into our national lexicon. We need to interrogate the notion of a country being “ready” or “not ready” for female leaders. What is the content and texture of this “readiness” or “unreadiness”? What does it mean? My stance is that we must be cautious of creating baseless narratives that cement misogynistic or anti-women sentiments in our cognitive spaces.

I argue that the unintended value of these televised interviews and the process until Ramaphosa makes the appointment is that we have the opportunity to observe how deep-rooted patriarchy is. As I have said, it is so omnipresent and its grip on our existence can be explained in smart ways, and for top legal minds in the fray, such explanations can be justified even “cogently”. I am averse to inclinations of hypocrisy and sophisticated trickery. The relevance of intersectionality when facing oppressive situations cannot be overemphasised.

From a holistic viewpoint, this process is not just about appointment of an individual to the position of chief justice. Simultaneously, we shouldn’t underestimate the critical role of this position and its influence in the society even beyond Section 167 (4). The power of the judiciary as an arm of government can jettison the other arms, including the nullification of decisions of other arms of government and jailing of politicians. So, there is a very strong subtext that will be communicated by the appointment, especially from a gender equality perspective. What permeates the minds of South Africans now is the mechanisms with which stereotypes of patriarchy are fought, managed or camouflaged.

But we must bear in mind that, in the final analysis, it is Ramaphosa who has to confront the situation and make the appropriate decision of appointing the new chief justice as mandated by the Constitution. Section 174 requires the president to appoint “any appropriately qualified woman or man who is fit and proper” after consulting the JSC and leaders of parties represented in the National Assembly”. It is interesting that the Constitution, amongst others, specifically mandates the president to consider “gender composition” in South Africa. The nature and depth of this consultation is not clarified. In the end, it is the prerogative of the president to make the call.

Essentially, he is at the centre of this overwhelming scenario in this epochal year which presents an opportunity to demonstrate our commitment to “women emancipation” and to entrench gender equality.

He is at the cusp of history or history-making pedestal in terms of which a moment beckons, which moment will reflect his consciousness or commitment to gender equality in a genuine and meaningful way. This year is particularly significant in that it will serve as a test of our commitment, as a country, to move beyond slogans of “50-50” and “Mbokodo” on two fronts.

The first one is the instant case, the appointment of chief justice, where it is to be seen whether the only female nominee will be appointed or overlooked. The second issue pertains to personal decisions by all men in the ANC (including Ramaphosa) to stand or not to stand for election as ANC president later this year. Beyond the internal ANC factional contestations, this decision, either way, will reverberate for many years to come. It is extremely embarrassing that the ANC, in the 110 years of its existence, has never had a woman president. This sad reality has had the ripple effect that South Africa has been denied the experience of a female president in its entire history, let alone the 28 years of ANC political office occupancy. In this matrix, the ANC nevertheless continues to consider itself “a leader of society”.

The ANCWL is known for that infamous statement of “we are not ready” for a female president. As we speak, and paraphrasing Thomas Sankara, “I can hear the roar of women’s silence” on this important matter. I am not sure whether they are still ready for a male president in terms of their song: “We are ready for Ramaphosa; on your marks, get set, we are ready for Ramaphosa.”

In both instances, the spotlight is on Ramaphosa to take that epoch-making step and change this patriarchal trajectory that has manifested. Concerning the ANC presidency, in particular, an honest introspection is needed by all its members on the question of why in over 110 years women shouldn’t hold up the other half of the sky, as it were. It’s a pity that in the current state of affairs in the ANC, any thinking or deliberations are often interpreted in the binary mode of factions, rather than purely on the basis of principle.

It’s worth emphasising that in an attempt to disrupt this patriarchal culture, we should not be tempted to think that we are extending a hand of favour to women. Back to Sankara’s words, the appointment of women should not be seen as “an act of charity or because of a surge of human compassion”. Let’s wait and see!

David Letsoalo is a Sankarist, an activist and law academic

Sunday Independent

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Cyril RamaphosaGender