Beyond the Numbers: Gender Parity on the African Court — A Lesson for African Judiciaries
ON August 27 2018, the newly elected judges on the African Court on Human and Peoples’ Rights were sworn in at the seat of the Court in Arusha, Tanzania. Earlier on, from June 25 to July 2, 2018, the 31st Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU) took place in Nouakchott, the capital city of the Islamic Republic of Mauritania. One of the agenda items during the session was the election of new judges to fill vacancies on the African Court on Human and Peoples’ Rights (ACtHPR). Four spots had opened on the court—one of which was left open by Judge Solomy Balungi Bossa who resigned from the ACtHPR after her successful election to the International Criminal Court (ICC) in December 2017.
The three newly sworn in judges are;
Judge Imani Aboud, the Judge-in-Charge at the Tanga High Court in Tanzania and current President of the Tanzania branch of the International Association of Women Judges (IAWJ), elected from the East African region.
Judge Stella Isibhakhomen Anukam, Director of the International and Comparative Law Department in the Federal Ministry of Justice in Abuja, Nigeria, representing the West African region.
Professor Blaise Tchikaya, a Professor of International Public Law at University of Paris, France, a native of Congo representing the Central region.
The fourth seat was retained by Judge Ben Kioko of Kenya who was re-elected for a second six-year term. This recent election is a historical one because it brings the gender composition of the court to six women and five men! The record of gender parity set by the ACtHPR begun with the elections in 2017, where in an earlier post Vive la Diversité!, I noted that in celebrating the gains made at the African Court in achieving gender parity, the Court’s gender parity success should provide lessons for other regional courts in Africa—especially the benches of the ECOWAS Court of Justice and the East African Court of Justice where women judges are woefully underrepresented. From Tunis to Lusaka, women judges across the continent of Africa are making important strides in domestic judiciaries as shown in Gender and the Judiciary in Africa: From Obscurity to Parity? These developments do not rest only at the prescriptive level, as a growing number of women have broken the veil of masculinity and ascended to leadership positions as Chief Justices and Presidents of Constitutional Courts. From Arusha to The Hague, the increase in the number of women judges from Africa is being felt at the international level as documented in International Courts and the African Woman Judge: Unveiled Narratives.
Currently, of the six women judges on the bench of the International Criminal Court (ICC), two are from Africa, accounting for 33% of all women on the bench— in a tie with the Latin America and Caribbean Group. At the International Court of Justice (ICJ), Justice Julia Sebutinde made history when she was elected to the ICJ bench in 2012, making her the first woman from the continent of Africa on the ICJ. The representation of African women on the ACtHPR and the ICC strongly suggests that there is a pool of qualified women judges from the continent of Africa to fill positions on the benches of sub-regional, regional, and international courts. The record set by the ACtHPR, by achieving gender parity in its 12 years of existence is remarkable in the history of international courts and tribunals, where it took over forty years for the European Court of Justice to appoint its first woman judge, Fidelma Macken in 1999.
The gender parity gains at the ACtHPR can be linked to a combination of regional factors and mechanisms. One such mechanism is the activist agenda to achieve gender equality embodied in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa(Maputo Protocol) and the Solemn Declaration on Gender Equality in Africa, aimed at achieving gender equality across the continent. Second, the sustained advocacy for women’s equal participation in decision-making, led by women’s organizations such as Solidarity for African Women’s Rights (SOAWR). Additionally, the commitment of the Legal Affairs unit of the African Union in reviewing and rejecting nominations that do not contain the names of women, has proved instrumental in meeting the nomination requirements. Credit must also be given for the political will of the Assembly of Heads of State and Government to abide by the gender representation provisions in Article 12 (nominations) and Article 14 (elections) of the Protocol to the African Court on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights(Court Protocol).
Beyond the numbers, what should the gender parity on the ACtHPR mean? Attaining a critical mass of women judges on the ACtHPR is a great achievement, but more needs to be done. In the following discussion, I offer seven suggestions on how to move beyond the numbers. First, is the need to develop specific strategies. The gender parity on the ACtHPR should provide lessons leading to the development of specific strategies for achieving gender parity on the benches of other African regional courts. This development should be used as an advocacy tool by women’s rights organizations to signal to other regional courts to nominate and elect qualified women judges to judicial positions. Not all sub-regional courts have gender aspirational targets in their protocols. Nonetheless, even where there are no aspirational targets, the success achieved by the ACtHPR should be framed and articulated as a regional diffusion mechanism for developing norms and best practices for judicial selection in other regional courts. The success at the ACtHPR should encourage other courts to revise their selection methods and bring them to par with evolving international standards for achieving gender balanced benches. Second, is the need for advancing current knowledge. Current scholarship needs to look beyond the descriptive representation of women on the ACtHPR.
Feminist legal scholars should move past essentialist studies on the numbers of women judges and move towards analyses of questions on the substantive representation of judges. Research on substantive representationof African women judges has shown that women judges bring more than gender and racial diversity to the benches of international courts. Scholars need to focus on new research questions that interrogate wider judicial issues beyond why more women are needed and what they do on these courts. In this endeavour, scholars need to be mindful of avoiding essentialist repetitions of the “difference women judges make”, a caution succinctly captured by Judge Sebutinde when she notes; "In a world where one half of the population is female and the other half male, I would like for people to say one day that the World Court is comprised of fifty percent men and fifty percent women. That would be gender parity. It serves no purpose for people to ask, what difference or contribution have those three women judges made since they joined the Court? … For over seventy years there have been predominantly male judges serving on the International Court of Justice, yet nobody ever asks those kinds of questions when it comes to men. Why should the female judges serving on the Court have to justify or validate their presence or role on the Court? As long as we meet the statutory qualifications and are duly elected, we have as much right to sit on that Bench and to participate in the settlement of State disputes, without having to validate or justify our presence there with “value addition,” period." Third, is spreading the progress across sectors. The gender parity gains made at the ACtHPR and the long established gender parity on the African Union Commission, should be used as tools for promoting the African Union Agenda 2063, specifically goal 5, of achieving “an Africa whose development is people driven, relying on the potential offered by people, especially its women and youth and caring for children.”
Relying on the potential of women for development is not new to the African context. Women have always been at the center of economic development and have contributed in many ways to the domestic and international economic development projects. Yet, one of the many things lacking is the political will and commitment of governments and leaders to provide conducive political conditions and free and fair electoral processes aimed at encouraging and promoting women running for elected office. The remarkable progress made in increasing the gender representation on the ACtHPR should spread horizontally and vertically into other political, bureaucratic and administrative levels—beginning with the African Union organs and spreading across domestic government structures. Fourth, is the mentoring impact. The increase in the number of women judges on both domestic and regional courts in Africa opens the door and encourages young girls and women to aspire for professional leadership. As the continent of Africa deals with its youth bulge, the success of women judges and other women in leadership positions should be used as learning and mentoring opportunities for the younger generation.
In the words of Judge Florence Ndepele Mwachande Mumba; "The call for women judges must start at state level. National governments must be persuaded to open judiciaries to women judges and to promote their nomination to international courts. It is necessary to provide for gender balancing in international courts, at all times. Otherwise, women judges can easily be overlooked as the majority heads of state are still men. International legal practice offers women opportunities to excel and to contribute towards peace and harmony for all. Other women judges I worked with were of similar views. They felt that if women lawyers were promoted to high judicial office, gender balance would be attained. This would encourage girls to pursue law knowing that if they distinguished themselves, they can reach the highest offices in the legal profession."
There is a lot to learn from the growing trend of women judges and their leadership capabilities. In May 2010, of the 18 judges on the ICC bench, 11 were women, the highest number the court had ever had. In 2015, the ICC made history with its all-female Presidency with the election of Judge Silvia Férnanda de Gurmendi as President, Judge Joyce Aluoch as First Vice-President and Judge Kuniko Ozaki from Japan as Second Vice President. At the ICC, four African women have served in the Vice Presidency; these include Judge Akua Kuenyehia of Ghana, Judge Fatoumata Dembele Diarra of Mali, Judge Sanji Monageng of Botswana and Judge Joyce Aluoch of Kenya. At the African Court, Judge Sophia Akuffo of Ghana and Judge Elsie Thompson of Nigeria have served as President and Vice President respectively. Sixth, gains are not linear. The gender parity fluctuations at the ICC has shown that reaching gender parity on an international bench is not to be taken as a given, as these gains can be reversed at any time. Before the December 2017 elections of judges to the ICC, with the retirement of six judges, only one woman remained on the court.
But for the election of five new women judges, the ICC would have regressed on its gender parity record. Sustainable gender balanced courts require continued vigilance to ensure that the progress made becomes institutionalized, eventually developing to the status of a customary principle or practice. Seventh, is the need for sustained advocacy. Many challenges remain in achieving gender parity across other international institutions and courts. Gender activists must continue the drive to change the picture of international law through movements such as the GQUAL Campaign. Sustaining and replicating the progress at the ACtHPR provides lessons not only for African courts, but for all international courts, and advocates of gender parity can draw some best practices from the continent of Africa.
Grossman, Nienke. (2018) Judge Julia Sebutinde: An Unbreakable Cloth. In, Dawuni, Josephine and Kuenyehia, Akua (ed.s), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).
Mumba, Florence N.M. (2018). Women Judges in International Courts and Tribunals –The Quest for Equal Opportunities.In, Dawuni, Josephine and Kuenyehia, Akua (eds), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).