In just more than a week the Judicial Service Commission, the ANC and President Jacob Zuma will have a chance to appoint a woman to the highest court in the land. The four nominees who will be interviewed on June 9 to fill the Constitutional Court vacancy include three men – Judges Ronnie Bosielo, Robert Nugent and Raymond Zondo – and one woman, Judge Mandisa Maya.
This appointment is an opportunity for the government to prove that its policies and guidelines are not just for show, that it is committed to keeping the promises embodied in the Constitution.
Transformation of the judiciary has been touted as a government priority ever since South Africa’s first democratic elections. Yet, although there is now far greater diversity on the bench, change has been slow, especially in more senior positions. The number of female judges in South Africa has doubled since 2004, but by January this year there were 67 female judges, compared with 170 men. Women still hold only two of the 11 seats on the Constitutional Court.
The government has a clear legal and moral duty to appoint more women to the Bench. The Constitution explicitly instructs that gender (and race) must be taken into account when making judicial appointments. The ultimate aim is to have a judiciary that reflects the gender make-up of our society.
This constitutional imperative is consistent with South Africa’s international obligations, including, among others, article 7 of the United Nations convention on the elimination of all forms of discrimination against women and article 15 of the African Charter on Human and People’s Rights. These obligations have also been recognised in policy documents authored by the department of justice and constitutional development.
Old boys’ club
Although the constitutional imperative should be sufficient to insist on more women on the bench, the critical importance of female judges lies more fundamentally in the commitment to equality and justice. Female judges help to erode the enduring judicial “old boys’ club”, bolstered by patriarchal and sexist attitudes that continue to protect male interests.
Female judges have reported feeling resented, invisible and excluded by male judges and lawyers. The increased visibility of women in the judiciary is essential to breaking down these patriarchal stereotypes and normalising the way in which female judges are perceived and treated.
Female judges inspire generations of young female lawyers to see themselves on the Bench and make courtrooms across the country more comfortable for women to appear as lawyers and witnesses. Having a female justice on the court may also mean that next time there is a vacancy more excellent female candidates will accept nomination.
Research shows that gender matters to judicial outcomes. Findings from other countries suggest that female judges take more gender-sensitive – and generally more liberal – positions than their male counterparts, regardless of whether gender is at issue in the case. Moreover, male judges adopted similar positions when a female judge was also present.
This research should give us pause, particularly given South Africa’s extremely low conviction rates in cases involving violence against women. It is even more critical when we consider statements made by South African judges in such cases, when acts of rape are sympathetically described as acts of lust and sexual offenders’ sentences are mitigated because forced penetration is not deemed enough of a physical injury. Women are not immune to this type of thinking and we should expect better from all our judges, but female judges, with their particular life experiences, can play a significant role in debunking such myths and exposing the hidden biases of our patriarchal culture.
Development of judicial standards
It is not necessary to have experienced a particular form of vulnerability to empathise with the experience of others. Not all South African women – and certainly not all of those who are judicial candidates – have experienced extreme poverty, domestic violence or overt discrimination.
But they know what it means to be a woman in South Africa and are more likely to understand the particular burdens and choices that women in our society bear as mothers and care-
givers. Justice requires that these experiences be brought to bear on the development of judicial standards. The “reasonable man” of legal fame must equally be a “reasonable woman”.
Professor Ruth Cowan wrote in 2006 that the “presence of women on the Bench in South Africa tells a story of promises kept or promises broken”. Having missed a key moment for gender transformation in appointing Judge Mogoeng Mogoeng as chief justice last year, and having appointed only one female justice among the four appointed to the Constitutional Court in 2009, the Judicial Service Commission and the president should not miss this opportunity again.
Judge Maya is well qualified for the vacant Constitutional Court position: she is an acting judge in the court, has an impressive judicial record and has been a strong advocate for human rights. Her voice would be a welcome one on the Bench.
Kelley Moult and Yonina Hoffman-Wanderer work in the gender, health and justice research unit at the University of Cape Town