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Lack of Gender Transformation in the Judiciary

This report investigates the lack of gender transformation in the judiciary and provides recommendations for change. It discusses patriarchal structures, outdated policies, and the need for intentional commitments to address these issues. The report also highlights the role of the Commission for Gender Equality and the legal framework in promoting gender equality.

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Lack of Gender Transformation in the Judiciary

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  1. Lack of Gender Transformation in the Judiciary Presenter: K Maema Date: 31 October 2017

  2. Overview Introduction Gender Transformation in the Judiciary Investigative Report Findings Recommendations Status Quo Response by the Department of Justice and Correctional Services Conclusion

  3. INTRODUCTION The Commission for Gender Equality in recent financial years, initiated several transformation hearings both in the public and private sector. The focus of these hearings were to ensure that the accounting officers are held accountable on issues pertaining to transformation in the workplace. The nature of these hearings were to consider the full spectrum of transformation in the workplace to assess the extent of compliance with the gender-related legislation and policies. The hearings specifically looked at whether measures have been put in place to address the systematic structures that resulted in women and PWD being denied to senior management position.

  4. INTRODUCTION….. It is the view of the Commission that there are common factors that contributes to the poor representation of women in any particular sector. These factors include amongst others, patriarchal structures which perpetuate a paternalistic approach to appointments and work environment, the prevalence of sexual harassment to mention a few. These barriers impede the advancement of women in the form of outdated policies and proper implementation of the new policies. The judiciary as a microcosm of society is not immune from some of these patriarchal manifestations.

  5. INTRODUCTION….. The patriarchal notion that a woman’s personal life and family in terms of having children will affect her work performance and that the demands of work will affect a woman’s family life is still very common. It is our believe as the Commission that any driven individual regardless of gender will rise to these occasions and aspire to the success of all aspects of their life. Arguably, this duality in women’s life can be an advantage that makes women more suitable for leadership roles.

  6. Introduction….. What can make the difference though is having the right support structure to enable women to do this. This is precisely the rationale of conducting transformation hearings in the public and private sector. The failure by any sector to put measures in place to address these, results in women being unrepresented. It is therefore imperative that intentional commitments be made in the Judiciary and probably the legal fraternity as whole to address these. The Judiciary’s transformation is not just in terms of getting women into the seats but it also goes into the core of substantive issues and matters that gets ventilated within the Court room which in many cases highlights patriarchal arguments and approaches during proceedings. The empirical masculinity of the man of law in the form of lawyers and judges has led to calls by some feminists for greater representation of women in the profession and judiciary

  7. Background to the systemic complaint The Democratic Governance and Rights Unit (DGRU) and Sonke Justice Network lodged a complaint with the CGE regarding the lack of gender transformation in the judiciary despite the constitutional prerogative encapsulated in Section 174 of the Constitution which states that the appointment of judicial officers must reflect broadly the racial and gender composition of the population. The said complaint resulted in a detailed investigative report with a host of recommendations to be implemented in the current 2017/2018 period.

  8. CONSTITUTIONAL MANDATE & LEGAL FRAMEWORK The Constitution of SA created an independent Commission for Gender Equality to deal specifically with promotion of gender equality and to advise and make recommendations relating to gender equality and status of women. Section 181 read with section 187 of the Constitution establishes the Commission for Gender Equality. In terms of section 187 CGE must promote respect for gender equality and the protection, development and attainment of gender equality.

  9. LEGAL FRAMEWORK International Legal Framework Convention on the Elimination of All Forms of Discrimination against Women South Africa ratified the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter referred to as “CEDAW”) in 1995 therefore placing an obligation upon the State to ensure the advancement and protection of women’s rights under the Convention through legislation and enforcement of good policies, practices and programmes to support gender transformation. Universal Declaration of Human Rights (UDHRC) (1948) Article 2 of the UDHRC states that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

  10. LEGAL FRAMEWORK Cont… Vienna Declaration 1993 and South African National Action Plan for the Promotion and Protection of Human Rights. Article 8 highlights the importance of working towards the elimination of violence against women in public and private life, the elimination of all forms of sexual harassment, exploitation of, and trafficking in, women, the elimination of gender bias in the administration of justice, and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism. The Beijing Platform for Action (BPA) The BPA requires governments, international communities and civil society, including non-governmental organisations and the private sector, to take strategic action to address 12 critical areas of concern. These areas include, but are not limited to, violence against women, the burden of poverty on women, and the inequality between men and women in the sharing of power and decision making at all levels.

  11. LEGAL FRAMEWORK Cont.… Sustainable development goals: 2030 Agenda Goal 5 aims at achieving gender equality and empowers all women and girls. Its targets include ending all forms of discrimination and violence against women and girls, as well as eliminating harmful practices, and the recognition and value of unpaid care and domestic work. Other targets stress the importance of ensuring women's full and effective participation and equal opportunities for leadership, as well as universal access to sexual and reproductive health and reproductive rights. Southern Africa Protocol and Gender and Development provides Article 7 (f) reads: “that women have equitable representation on, and participation in, all courts including traditional courts, alternative dispute resolutions mechanism and local community courts”

  12. LEGAL FRAMEWORK CONTI…. Domestic Legal Framework The Constitution of the Republic of South Africa,1996 Section 9: Equality 3. “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 4.No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5.Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair”. In addition, the Promotion of Equality and Unfair Discrimination Act 4 of 2000 expands upon the above cited constitutional imperative by delineating the right not to be unfairly discriminated on the grounds of gender.

  13. Gender Transformation in the Judiciary –(institutional analysis) It has been widely reported that women are not adequately represented in the legal profession and in turn the judiciary within South Africa. Both the South Africa CEDAW periodic report and the Non-Governmental shadow report reflect this shortcoming. As such, it must be pointed out that meaningful transformation (in its broadest sense) has been slow in the legal profession. Men dominate the top positions in the profession (senior partners of law firms, senior counsel at the Bar and senior members of the judiciary) and in private practice these men are more often than not white. According to the 2013 South African Legal Fellows Network survey, South Africa’s major corporate law firms are still dominated by white men, especially its upper echelons. In the 12 large firms canvassed, 80 percent of the chief executives were white men, as were 72 percent of all managing partners.

  14. While the judiciary has done better than the profession at large in changing its racial profile, the same is not entirely true for changing the gender composition of the judiciary. It was observed in the investigation that over the past 20 years the number of women on the Constitutional Court and in the High courts were relatively poor. The lodged complaint concerned an intricate, multifaceted and interrelated issue which history is deeply rooted in the segmented past that belies South Africa. The aforementioned interrelated and complexities saw the CGE deploy a multi-pronged approach in understanding the issues and causes with hamper a truly reflective judiciary.

  15. Legal Complaint process

  16. Investigative report CGE’s investigation process yielded key insight into the hindrances to gender paucity on the bench, including:– 1. Lack of certainty of the Judicial Service Commissions (JSC) procedure and criteria. 2. Lack of criteria / process in selection of Acting Judges. 3. Inaccessibility of venues utilised by the JSC. 4. Lack of female leadership at institutions such as the Law Society of South Africa. 5. Patriarchy and sexism which continue to persist requires women to prove themselves in this male dominated profession. 6. The finger-pointing by key stakeholders as to who bears the ultimate responsibility to ensure gender transformation within the judiciary. 7. The availability of women and/or their willingness to be available for the appointment of certain judicial positions.

  17. Findings on the Judicial Services Commission Complaint The Commission found that: The lack of gender transformation is not only applicable to permanent posts but it is also reflected in the appointment of acting judges. The information submitted to the CGE shy away from the barriers, behaviour and unwritten rules of the profession that impede talented individuals from progressing. These barriers, which are often caused by rules, practices and attitudes about women that are stereotypical and hurtful, occur throughout the lifespan of the legal career. The stark reality is that without addressing the institutional culture, gender transformation at the highest echelons of the legal profession will not be attained. In order to overcome such systematic concerns, debate and active participation is required.

  18. Findings on the Judicial Services Commission Complaint Transformation in the Judiciary requires transformation of society – attitudes and perceptions and gendered norms and discrimination. Requires transformation of legal fraternity – beyond the numbers - institutional culture – substantive vs formal equality - sexist perceptions and behaviours – male members - experience and exposure opportunities for women - training and mentoring interventions - aspirant women judges - quota for briefings for women at the Bar - Support for women – childcare facilities, sexual harassment

  19. Continuation Requires intervention in JSC and AJ appointment processes - transparency in process and standardised criteria - nomination, support and profiling of women candidates - criteria for selection, shortlisting and “sifting” – addressing “competence” and “experience” vs potential) - monitoring and challenging bias and discrimination in JSC questioning - conscious policy (quota?) and political intervention (Chief Justice directive to JPs?)

  20. Recommendations of the CGE REPORT Get appropriate policy framework in place Propose to DoJ&CD/JSC that clear criteria – and possibly quota – be put in place for nominations, shortlisting of judges and Acting Judges. Put mechanisms in place to ensure transparency in the advertising, nomination, selection and appointment process of judges and Ajs. Minister of Justice to reject list of proposed AJ candidates if these do not include 50% women candidates. Examine profile of members of JSC – this must have 50% women’s representation, and candidates that promote transformation.

  21. Progress on investigative report Flowing from the complaint and the impact of the CGE’s investigation into the complaint, substantial gains have been made towards improving gender transformation in the judiciary since 2012: - a)  Increase in the number of women appointed to judicial leadership positions, namely: Judge President M Molemela – Free State Division of the High Court (the CGE nominated Justice Molemela for the said position) Deputy Judge President P.L Goliath – Western Cape Division of the High Court. Deputy Judge President F Mokgolhoa – Limpopo Division of the High Court. President M.M Maya – Supreme Court of Appeal. Justice Nonkosi Mhlantla and Justice Leona Theron were appointed to the Constitutional Court.

  22. Progress on Investigative Report Adoption of criteria for the appointment of Acting Judges by the Heads of Court at a meeting held on 3 April 2016. The criteria commits Heads of Court to consider key aspects when recommending candidates for appointment as Acting Judges in terms of section 175 of the Constitution:- Increased nomination and formal support of women applicants for judicial vacancies by the CGE. CGE’s commencement of observing and monitoring of the JSC’s interview processes for judicial officers.

  23. Investigative report (e) Finalisation of CGE’s investigative report and resultant recommendations which have prompted:- Engagement with integral stakeholders such as the Department of Justice, Office of the Chief Justice, Law Society of South Africa, Professional Bodies for attorneys and advocates which are key to the advancement of women’s equality and representation in the legal sector and judiciary . This has further aired issues which are often not spoken about directly or addressed, leaving the status quo intact. Identification of the need for a holistic multi-stakeholder approach and ”"team” involvement to address the slow pace of gender transformation and the under-representation of women in the judiciary. Greater accountability for the cited Respondents in relation to ensuring gender transformation in the legal profession and the judiciary. Commitments made by the CGE to address the slow pace of gender transformation in the judiciary and legal profession. Media coverage on the outcomes of the investigation .

  24. Permanent Judges as @ 31 March 2017

  25. Continued…

  26. Advocates as at 30 April 2017 At the General Bar

  27. Continued…

  28. Department of Justice and Correctional Services The CGE notes with disappointment the Ministry’s lack of response to its plethora of correspondence seeking a meeting to discuss the recommendations of its investigation into the lack of gender transformation in the Judiciary specifically the National Summit. In corresponding with his Excellency, President Jacob Zuma, the CGE received formal advice on the 5th of October 2017, that his esteemed office has formally referred the subject matter for process to the Minister of Justice and Correctional Services and the Minister in the Presidency: Women. His Excellency further stipulated that the CGE is required “to liaise with the two Ministers on the matter.” The CGE has called for a meeting with both Ministers to be held in November 2017.

  29. Commission’s further intervention The discussion document is due to be published for public comment by the end of the 3rd Quarter (2017/2018) . Subsequent to the envisaged meeting with Ministers, the CGE will be in a better position to inform the Portfolio Committee regarding the National Summit. It must be highlighted that the CGE has continued its important role of :- Nominating and supporting female judges in the JSC processes. Observing the judicial interviews to note any gender bias questions.

  30. Commission’s further intervention The commission has further held discussions with the magistrate commission and guidelines were drafted to assist them to improve on female representation as well as retention of female judicial officers. The guidelines looked at key policies that needed to be considered and reviewed due to the fact that the Commission is not deemed a designated employer; training and upskilling that could be done and looking into sensitization of sexual harassment issues etc

  31. Conclusion In order to achieve equality within the legal fraternity, a collective approach is required. The journey to deal with patriarchal manifestation will take time, and the Commission will be persistent in Monitoring and engaging all relevant stakeholders in order to ensure that gender transformation is realised.

  32. Thank You HAVE A GENDER RELATED COMPLAINT ???? REPORT IT TO 0800 007 709 TwitterHandle @CGEinfoFacebook: Gender Commission of South Africa

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