By J. Jarpa Dawuni, Ph.D. & Sègnonna H. Adjolohoun, Ph.D.*
In September 2018, the African Court on Human and Peoples’ Rights (ACtHPR or the Court) made history by swearing in two female judges, thereby bringing the Court’s composition to six women out of its 11 judges. The Court had thus achieved a female majority bench for the first time since its inception in 2006. The symbolic representation of women judges made the bench the most gender-balanced of all times. While women currently make up 55% of judges on the ACtHPR, they account for 35% of all judges since the Court was established, and only 20% of the leadership in the institution (ie, two women have served in the Bureau versus eight men). In the following discussion, we analyze why women’s symbolic representation has not translated into their substantive leadership within the Court. We query whether the changes introduced to the Rules of Court in 2020, will be a catalyst for a sustainable women’s representation in the Court’s Bureau in the elections slated for 31 May 2021.
Achieving Gender Parity
The women majority bench of the Court is an achievement of an electoral policy adopted within the political sphere of the African Union, including at the helm, by the Assembly of Heads of State and Government (AHSG). The policy is firstly grounded in treaty law as reflected in Article 14(3) of the Court Protocol, which provides that “In the election of the judges, the Assembly shall ensure that there is adequate gender representation”. This statutory commitment was subsequently translated into a Decision of the Executive Council of the African Union, which expressly prescribing that, in addition to the geographical representation, “at least one member from each region should be a woman” and further directing that “the modality shall become effective immediately”. In implementing this Decision during the July 2016 summit held in Kigali, Rwanda, the policy organs postponed the elections of judges for the southern and eastern regions after nominating Member States had filed male candidatures for the concerned seats.
The African Union Commission thereafter put these norms into practice under procedural electoral rules as consistently stated in the Note Verbales transmitted to Member States by the Office of the Legal Counsel ahead of every election of judges to the Court. Prior to achieving gender parity by statutory requirement as earlier explained, the ACtHPR itself had portrayed a predisposition to gender sensitivity by electing two women judges to the Bureau. Justice Sophia A. B. Akuffo of Ghana was first elected as Vice-President in 2008, reelected in 2010, and then as President in 2012; while Judge Elsie Nwanwuri Thompson of Nigeria was elected as Vice-President in 2014.
Established under Article 21 of the Court Protocol, the Bureau of the Court shall consist of a President and a Vice-President, each elected among current judges for a two-year term, renewable once for another two years. The Bureau is responsible for the administrative components of the Court. Since the 2016 Executive Council’s equal representation was applied, only male judges have been elected to serve in the Bureau of the ACtHPR despite the growing number of women joining the Court’s bench.
Pursuant to Rule 11(6) of the 2020 Rules of Court, the next election of members of the Bureau is scheduled to take place on 31 May 2021, which is the first day of the 61st Ordinary Session of the Court. Will the female majority of the bench translate into a gender-balanced leadership within the Bureau? In other words, has the politics of achieving gender parity led to a stagnation in women’s (non)representation in the Bureau rather than promoting their substantive and sustainable representation as could have been expected?
*For both tables, we count the leadership positions by gender and not the number of times a person has held the position.
Beyond gender representation
Hanna Pitkin’s seminal work on the Concept of Representation has directed much of the discourse on our understanding of women’s representation—formalistic, descriptive, symbolic and substantive. The 1995 United Nations Conference on Women in Beijing emphasized a 30% floor benchmark for women’s representation for meaningful change to happen. It is argued that at 30%, there is a critical mass of women to set in motion institutional cultural change towards having gender inclusive policies and outcomes. A plethora of existing international frameworks such as Goal # 5 of the UN SDGs, and Article 8 of CEDAW provide a normative basis for the right of women to participate in international organisations.
Crucial to the African context is the the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which provides in Article 9(2) for the right of women to hold leadership positions, to “ensure their effective representation at all levels of decision-making”. In a more strategic commitment, the African Union Agenda 2063, specifically Goal #5, has a target to achieve “an Africa whose development is people driven, relying on the potential offered by people, especially its women and youth and caring for children.”
Through these international instruments, women’s representation must be guaranteed and all efforts made to ensure the realization of their leadership potential in all institutions including judicial ones such as the ACtHPR. Representation must therefore mean much more than just presence. Consequently, we argue that the empirical analysis of women’s representation in international courts must involve their substantive representation in leadership positions including in the ACtHPR. The International Criminal Court (ICC) showed that it is possible to have women in leadership—including an all-female presidency in 2015 with Judge Silvia Fernández de Gurmendi of Argentina as President, Judge Joyce Aluoch of Kenya as First Vice-President and Judge Kuniko Ozaki of Japan as Second Vice-President. The African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child have both achieved women majority compositions of 7 out 11 members; and the Commission has so far had two all-female Bureaux.
In an earlier article, Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights — A Lesson for African Regional Courts?, it was argued that the gains made in reaching a gender balanced bench at the ACtHPR should not be seen at the penultimate goal to achieving gender equality within the institution, including at the highest level. Similarly, in a cautious celebration of the gender parity of the ACtHPR in 2017, emphasis was placed on the need to take women’s representation “beyond the political discourse.” We believe that this ultimate goal of moving from a mere symbolic presence to substantive representation can be achieved through a corresponding presence of women in the Bureau.
The ACtHPR must be commended for achieving gender balance within a relatively short span of a decade since it was established, compared to the International Court of Justice for instance, which, in 75 years, still has only 3.7% of women represented on its bench. In fairness, credit should first be apportioned to the African Union for designing a revolutionary gender policy. Having said that, credit should also go to judges of the Court for giving life to the policy by electing the two women judges who have so far led the institution as president and vice-president respectively.
Noteworthy, the Court had its only two women judges in leadership positions at times when their men counterparts held the bench majority. Arguably, this trend was reinforced in the recent normative standards of the Court. In its 2010 Rules, the Court only took a formalistic approach to gender by repeatedly referring to the Bureau members as “he/she”.[i] However, under the 2020 Rules, a full provision is devoted to prescribing that “in the composition of the Bureau, the principles of gender parity, … and a rotation system shall, as far as possible, be observed”.[ii] Notwithstanding these commendable developments, there is an urgent need to move the discussion further by examining whether the statutory standards will expand opportunities for sustainable women leadership in practice.
Women in leadership - What the numbers tell us
Since the ACtHPR began its operation in 2006, women have accounted for only 20% of the judicial leadership positions, one time as president, and three times in the vice-president role. The fact that leadership involvement in the Court may not be limited to its Bureau is not overlooked. Thus, while women judges could preside over any of the committees or working groups that the Court may establish to facilitate its work, the bench level majority should be the standard for measuring substantive leadership representation. Notably, and arguably due to limitations in the Court Protocol, deliberations of any such committees are subject to the adoption of the plenary.[iii]
Expanding opportunities for leadership
The gender inequity in leadership in the ACtHPR can be viewed by assessing election practices in two eras. Under the first era governed by the 2010 Rules of Court, women’s representation did not translate into the internal governance of the institution arguably because the Court’s Protocol only provided for “adequate gender representation”.[iv] The African Union AHSG was therefore neither bound by equality nor by equity, and the Court itself therefore likely took a minimalist approach to women’s representation in leadership rules. However, as earlier discussed, the then men majority Court took a progressive approach by electing women in leadership positions.
The second era of what we call the ‘politics of gender’ began, we argue, with the adoption of the 2020 Rules of Court. The prescription for “gender parity” of the Bureau under Rule 10(2) of the said Rules is unprecedented in the operation of the Court. The first post-2020 Rules election is the one slated to be held on the first day of the 61st Ordinary Session of the Court (May-June 2021) and one therefore awaits to see whether the politics of gender will translate into a gender of politics.
One of the most significant developments under the 2020 Rules of Court, is the nomination process under Rule 11. Judges will now be notified of the vacancies 45 days prior to the election, and may nominate fellow colleagues while nominees are required to formally accept nomination and submit an undertaking to take up the post should they be elected. The list of candidates is then circulated 15 days to the election arguably for sufficient notice, and engagement, ahead of the poll date. Although none of these provisions is expressly gender framed, they introduce processes that strongly purport commitment, publicity, and campaigning. Such processes are channels that may serve in advocating for a purposive implementation of the new “gender parity” trend brought by the 2020 Rules of Court.
Why women in leadership matters
Institutional cultures develop over time. Dynamic institutional cultures are critical to the development and advancement of any institution. The ACtHPR started off with what appeared to be a gender-inclusive leadership culture, which must now be capitalised into a systematic and sustainable institutional practice.
While we can spend our time detailing the legal and moral arguments why women in leadership positions matter, we argue that women in leadership matter for the simple yet profound reason that women must not carry the burden of justifying their right to leadership. Judge Julia Sebutinde makes a strong argument in the context of symbolic representation:
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.[v]
Merit does not have to have a male face. A socio-legal approach requires an expansive definition of merit to include the broad range of skills and talent women bring to the table. If women judges have the merit to be on the bench, they must have the merit to serve in leadership roles, without having to justify the “difference” they will make in those positions of leadership. In 2006, Justice Sophia A. B. Akuffo of Ghana was among the first batch of five judges appointed to the ACtHPR. From Akuffo’s account of the initial interactions among the judges, gender sensitivity appeared to be an issue within the Court from its genesis:
As operations of the Court progressed, issues of gender equality came to the fore. Akuffo noticed that the male judges were uncomfortable with how confidently the female judges expressed themselves-particularly when they disagreed with the male judges on pertinent issues (p. 103).[vi]
To address these challenges, and to create a critical mass of women on the ACtHPR, Justice Akuffo made it a point to call on governments to search for, and nominate women to the Court:
As President of the Court, Akuffo consistently impressed upon the Member States of the African Union to fulfill the protocols relating to gender parity by nominating more women to the Court. Oftentimes, the Member States chose to nominate male judges instead of female judges. In Akuffo’s final report for the Court, she encouraged the Member States to fill her position, when vacated, with a female judge as there were many highly qualified female judges on the continent (p. 103).[vii]
Her plea has certainly been heard as witnessed by the increasing number of women elected to the ACtHPR over the years. Besides, the Court appears to have evolved notably with respect to the participation of women judges. If women judges’ contribution to the Court’s jurisprudence is anything to go by, the significance of separate and dissenting opinions filed by them speaks for itself.[viii]
The election of the next president and vice-president of the ACtHPR will no doubt mark a true test of whether the principles and norms of gender equality are having a real impact in transforming the institutional culture of the Court. Gender equality on the bench of the ACtHPR must move beyond symbolic representation of women, to more substantive representation evidenced in the leadership roles they play within the administration of the Court.
Noteworthy, the current female majority could shift to a male majority in 2022 with the next election of judges, given that the rotating seat that helped achieve female majority is based on geographical equity and attributed without any mandatory adherence to a gender rule. Thus, the judges on the Court should seize the upcoming election as an opportunity to advance women’s representation in leadership roles in the institution.
Against the foregoing discussion, we examine in our forthcoming article, whether the current gender capital of the ACtHPR is an end or a means to addressing gender related issues as far as human rights justice in Africa is concerned. In other words, three years after gender parity was achieved, has the female majority bench led to a gender-inclusive institution?
* J. Jarpa Dawuni, Ph.D. is Associate Professor of Political Science at Howard University and the founder and Executive Director of the Institute for African Women in Law.
*Sègnonna H. Adjolohoun, Ph.D. is Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law, University of Pretoria & Central European University. (The analyses made in this article are only the academic views of the author).
[i] See eg, Rules 9, 10, 11 and 12 of the 2010 Rules of Court. [ii] See eg, Rule 10(2) of the 2020 Rules of Court. [iii] See Art 26 of the 2020 Rules of Court. [iv] See Art 14(3), African Court Protocol. [v] See Nienke Grossman. (2018). Julia Sebutinde: An Unbreakable Cloth. In Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press. [vi] See, Kuukuwa Andam and Sena Dei-Tutu (2018), “Sophia Akuffo: Balancing the Scales of Justice”, in Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press. [vii] Idem. [viii] The authors offer a deeper analysis on this question in their forthcoming article.