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The compelling case for a female Chief Justice in South Africa

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The presence of women on the Bench matters. It is both a matter of justice and a matter of validating the legitimacy of the face of the judiciary in any human rights-anchored country.

“Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa” is the title of an incisive article penned by Josephine Dawuni of Howard University and Alice Kang of the University of Nebraska in Africa Today in 2015.

The article notes an indisputable reality about power dynamics and their relationship to justice: “One important seat of power is on the bench, as the judiciary may be a crucial site of arbitration for nearly every political issue. 

“Therefore, for those interested in women’s political power, whether on the grounds of fairness, enhancing the legitimacy of state institutions, or improving the representation of women’s interests, women’s presence on the Bench matters.”

The authors observe that “whether women rise to the top of the judiciary and how they arrive there ought to be of interest for scholars of women and politics, as well as for scholars of judicial politics”.

With the pending expiry of the term of Chief Justice Mogoeng Mogoeng in 2021, the issue of a female Chief Justice in South Africa must be given the attention and prominence it so rightly and meritoriously deserves.

As noted with reference to South Africa’s leading female judges in the 19 October Daily Maverick “Judges Matter” column, Justices Mandisa Maya, Nonkosi Mhlantla, Leona Theron or Mahube Molemela could change our judiciary for the better.

The leading female candidates in the running for the next Chief Justice

Benin showed us the way with Elisabeth Pognon serving as president of the Constitutional Court between 1993 and 1998. Mabel Agyemang became Chief Justice of Gambia in 2007.

What could really prevent President Cyril Ramaphosa from making a final determination of appointing a woman as successor to Mogoeng Mogoeng? The presence of women on the Bench matters. It is both a matter of justice and a matter of validating the legitimacy of the face of the judiciary in any human rights-anchored country.

The appointment of a woman as Chief Justice is a prospect that ought to be taken very seriously. South Africa has never had a female Chief Justice, and section 174(2) of the Constitution specifically requires that ‘[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa’ has to be considered when judges are appointed,” it was written in the Judges Matter column.

It is my long-held belief that the judiciary can only claim legitimacy when women are proportionally represented on the bench and in other judicial spaces. The prospect is indeed to be taken seriously.  

So serious is the matter that even ANC deputy secretary-general Jessie Duarte recently voiced support in Daily Maverick for the next Chief Justice of South Africa to be a woman.

Time is ripe for a woman to become chief justice of South Africa

It may come as a surprise to many that a politician sees the need for the face of the South African judiciary to be female. Many times, politicians have an aversion to justice being done, especially those belonging to a governing party.

But Jessie Duarte is a different breed when it comes to issues of representation on the Bench. I can add a footnote to the Daily Maverick column with the following questions lifted from a 2012 academic article by Sally J Kenny, aptly titled “Choosing Judges: A Bumpy Road to Women’s Equality and a Long Way to Go”. 

The questions are relevant to South Africa come 2021 as we begin the process of appointing the next Chief Justice: 

Why do so few women serve as judges? 

“Why has the torrent of women’s entry into the legal profession not produced a pipeline to power for women in the judicial branch of government? 

“What will it take to move women from minority to parity?”

My appeal to Judges Matter is to continue the conversation and keep it on the national agenda. We need to rekindle public discussion about the gender and legitimacy of the South African Bench – impartially and without fear or favour. 

Not always easy to do when people take the discussion too personally. I almost had my academic career cut short after delivering an academic paper on gender sensitivity – or bias of men on the Bench – at a 2015 Africa regional conference hosted by the South African chapter of the International Association of Women Judges (SAC-IAWJ, titled: “Beyond words, beyond 2015: embracing the discourse of legal implementation to realise Planet 50-50”).

I found myself lost for words as some working for the then department of justice demanded that I apologise. But that emboldened me to advocate and interact more on matters of women in the judiciary, including recently writing articles on various issues such as a feminist judging approach in GBV cases

The desirability of the appointment of a woman as South Africa’s next Chief Justice is as important a discussion as the election-time discussion about who should ascend to the position of our commander-in-chief and the political head of the country. 

The Chief Justice – the most powerful commander-in-chief of the judiciary of the country – can be compared in tandem with the president of the country.

One thing is true, as reiterated by Justice Dikgang Moseneke during a webinar hosted by the School of Law of the University of Limpopo on 20 October 2020 – and titled after his latest book, “All Rise: A Judicial Memoir” – the law clearly gives the president the right and prerogative to appoint the Chief Justice. 

Similarly, Moseneke correctly observed in “All Rise” the futility of thinking that the president can consider any third-party nomination of the next Chief Justice other than the presidential nomination. 

President Ramaphosa has demonstrated he is very alive to issues of gender inclusivity, equality and parity. I cannot imagine him putting his head in the sand like the proverbial ostrich when even senior members of his party, like Jessie Duarte, punt the need for a female Chief Justice.

It would be a betrayal of my strong support for parity on the Bench and support for a possibility of a female Chief Justice if I remain silent to a narrative that the next Chief Justice should still be male, or that it has to be Deputy Chief Justice Raymond Zondo.

I have nothing against Justice Zondo as a possibility for the next Chief Justice. What I disagree with is the almost misogynistic insinuation that there is no capable and “very best” woman in South Africa to become the next Chief Justice. 

It must be noted that the precedent in South Africa is that the Deputy Chief Justice is not automatically in line for the position of Chief Justice – Moseneke is the living example of this precedent.

In conclusion, allow me to again refer to the study by Dawuni and Kang, which observed that after comparing female leaders with the closest selected male leaders, it was found that the female chief justices in some countries are fully qualified for the position, “with some women having twice as many years of legal experience as required for the position. These are not token women.” DM

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