Sonke Statement on All-Male Constitutional Court Nominations

Sonke has released a press statement protesting the all-male nominations to the Constitutional Court and the Commission for Gender Equality’s slow response to the gender transformation in the judiciary.

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A Male-Dominated Constitutional Court Bench: When will Women be Equitably Represented on the Constitutional Court Bench?

On 15 January 2013, the Judicial Service Commission (JSC) issued a media announcement indicating that all five of the candidates shortlisted for a current Constitutional Court vacancy are men. This has happened despite calls from civil society for an increased number of women to be appointed to the bench so that women and men are equally represented on the bench.

Presently, only 2 of 11 Constitutional Court Justices are women even though Section 174(2) of the Constitution provides that the judiciary must broadly reflect the gender composition of society. The current composition of the Constitutional Court bench is not only inconsistent with the Constitution but also sends out the message to potential women candidates that they are unlikely to be appointed when they apply.

The judiciary’s failure to appoint women perpetuates patriarchy and the notion that women are not best placed to serve in decision making capacities. Based on the JSC interviews we’ve witnessed to date, the line of questions pursued by the JSC with women candidates has been discriminatory and replete with gender stereotypes: women candidates have been asked questions not asked of their male peers about their temperament and their indecisiveness. The gender bias apparent in the JSC’s interviews raises the spectre that men will continue to be appointed over women until these issues are addressed.

While suitable women candidates do exist, there is also a need to expand the pool of women candidates which calls for a long-term intervention from junior attorney and advocates level. Additionally, acting appointments should be prioritised for women who should then be supported through mentorship programmes and other such initiatives that groom them for permanent appointments.

In the circumstances, it would be appropriate and justifiable for the Chief Justice and JSC to call for further Constitutional Court nominations targeting women only. This is permissible in terms of the constitutional duty to protect and advance the rights of women as a historically disadvantaged group of people. Such an approach would be similar to other affirmative action strategies that have been used by the government previously such as in the workplace. It is also necessary for the judiciary to fulfil their constitutional duty to broadly reflect the gender composition of South Africa in the judiciary.

The Commission for Gender Equality’s Slow Response on Lack of Gender Transformation in the Judiciary Complaint

In order to address the inequitable representation of women on the bench, The Democratic Governance and Rights Unit (UCT) and Sonke, lodged a complaint with the Commission for Gender Equality during October 2012. This complaint called on the CGE to, among others, investigate unfair gender discrimination in the judiciary appointment process and monitor appointments going forward.

The CGE’s handling of the complaint thus far has been poor as they have failed to comply with timelines save for acknowledging receipt of the complaint within the prescribed timeframe. During a meeting between the Campaign and the CGE Chair and Commissioners, the campaign requested that gender transformation in the judiciary be prioritised as an issue for the CGE to tackle based on the grave under-representation of women in the judiciary.

The CGE’s slow response to and action on the complaint raises concern about the CGE’s institutional understanding of women’s empowerment as the CGE appears to be taking reactive action on violence against women cases that are highlighted in the media. It is crucial that the CGE does this but it must do so whilst simultaneously and proactively addressing institutional unfair gender discrimination that keeps gender inequality alive.

But for the CGE’s slow response and inaction on the complaint and their failure to take a proactive approach to engaging the JSC and Chief Justice, the current list of male candidates for the Constitutional Court vacancy may have looked very different.

It’s worth noting that a group of civil society organisations recently established a watchdog body to monitor the functioning of the CGE and to put pressure on the CGE to fulfil its constitutional mandate to advance gender equality. Both Sonke and DGRU are part of this watchdog group known as CGE Monitor. The CGE Monitor is paying particular attention to the CGE’s handling of the complaint filed with them about poor gender transformation within the judiciary and will use this case as one of many indicators to measure CGE performance.