Next week the Commission for Gender Equality will use its powers to begin an inquiry into transformation in the judiciary. The topic of judicial transformation has had significant attention in recent months, largely because of the war that has been simmering in the Western Cape over Judge President John Hlophe.
The overwhelming focus on racial rather than gender transformation has demonstrated that, as a nation, we seem far more prepared to tolerate sexism than we are to countenance overt racism. When given a choice between addressing gender parity or racial transformation in our public institutions, race trumps gender almost every time.
According to a report commissioned by the presidency as part of the 15-year review of the Constitution, "in 1990, the Bench was exclusively white and, with one exception, male. Today, of the 201 judges in the superior courts, white males remain in the majority, numbering 89. There are, however, 59 black, nine mixed-race and 11 Indian male judges. In addition, there are 33 female judges: 11 white, 10 black and six Indian."
In other words, black males (of all shades) have done very well in the past 20 years, whereas women of all races have done especially poorly. There has been a much slower increase in the number of female judges than there has been in male judges, even though men were grossly overrepresented in the first place.
Clearly, pitting gender against race in this way is not always helpful. But until progress is made on the non-sexism front, it is worth pointing out that our Constitution commits us equally to an anti-sexist agenda as it does to an anti-racist agenda.
Although the numbers tell us a lot, they don't tell us everything. The shockingly low numbers of women judges speak to the very real ways in which the reproductive choices of women seem to stand in the way of their careers. It is as though the working world thinks that women should choose one or the other, when this choice isn't asked of men. It is as though the aggressive macho cultures that define many top law firms actually have something to do with good practice when, in fact, they have quite the opposite effect.
Theoretical point
The pipeline for the next generation of female judges doesn't look good. Although not all women want to be mothers, those who do are opting out of their legal careers relatively early. The appalling reality is that, of the nearly 500 senior counsel operating in South Africa today, from whose ranks candidate judges are selected, only nine are black women and 20 are white women.
Some will argue that, although these figures are low, increasing the numbers will not necessarily translate into having better judgments from women, nor will it mean that the judicial system as a whole will miraculously begin to function in a manner that addresses women's needs and interests.
This is an important theoretical point: that, in fact, male judges are perfectly capable of rendering gender-sensitive judgments and of understanding the nuances of the differential effects of the law on men and women, and so on.
But the truth, borne out in multiple studies on the impact of women's participation in political processes, is that having women in positions of power makes a fundamental difference to how social, legal and political systems function. Despite the theory, we know that female judges and lawyers make real and lasting reforms that work better for women – that, in fact, they can be game-changers. When a large number of women enter an institution, they change the dynamic in a manner that is good for women writ large.
We also know that the strength of women's voices wanes over time once they have become insiders. They become less disruptive and in some ways less effective, which is why it is critical that the changes we seek to make in how the law works for women are rooted in systems – and not in expectations that women will carry the torch for women. They may for a while, but the responsibility belongs to institutions and to men within them as much as to women.
In recent months, the gender commission has come out with a number of important and strong statements and positions that work for women and advance gender equality.
It is also important to note that the commission has taken the lead on an issue of great importance for communities across the country. It may have taken eight months to convene the inquiry, which is far too long, but we are pleased that they have come to the party.
On July 24 and 25, when the gender commission calls on the Judicial Service Commission, the presidency, the ministry of justice, the various bars, law associations and other legal stakeholders to explain the slow pace of gender transformation in the judiciary, the nation's women will be watching.
But the jury is still out as to whether the inquiry will provide us with a road map for real progress.
Nomonde Nyembe is a University of California, Los Angeles, School of Law fellow at Sonke Gender Justice. Sisonke Msimang heads the policy and strategy work of the same non-profit organisation and is a columnist and writer on race and gender