Read the latest blog cross-posted from the Feminist Critiques of International Courts Symposium.
As of May 2017, the African Court on Human and Peoples’ Rights (ACtHPR) appears to be the most gender balanced bench in the world, with women occupying 45% (5 out of 11) of the seats on the bench. This development is a far outcry from the meager 18% (2 out of 11) seats women have occupied on the court when it came into force in 2006. Notwithstanding this observation, the progress made on the ACtHPR is a remarkable achievement for international law, women’s activism and feminist legal scholars who have for years critiqued the international legal system and international courts as being gendered. Nienke Grossman’s contribution to this symposium recaptures her remarkable work in documenting the causal factors for the paucity of women on international courts and the forceful arguments she advances for why gender parity matters for international law and the legitimacy of international courts. I will not repeat that debate here.
This discussion contributes to the symposium by focusing on a region of the world—the continent of Africa where we have witnessed a recent remarkable progress in achieving gender parity for the first time in the eleven-year existence of the ACtHPR. In assessing what this development means for gender diverse benches in international law, I engage in a comparative analysis of three regional courts—the African Court on Human and Peoples’ Rights, Economic Community of West African Status Court (ECOWAS Court) located in Abuja, Nigeria and the East African Court of Justice (EACJ) located in Arusha, Tanzania. The ECOWAS Court was established in 2001, governed by a plethora of instruments for the 15-member states of the ECOWAS. Its jurisdiction is both contentious and advisory. The bench is made up of seven judges who serve for a six-year renewable term. The EACJ came into force in 2001 made up of five East African states: Uganda, Kenya, Tanzania, Burundi and Rwanda. Judges serve for a seven-year maximum term. Lastly, the ACtHPR, established by the Protocol Establishing the African Court on Human and Peoples’ Rights (The Protocol), came into force in 2006 and is composed of 11 judges who serve a six-year renewable term.
Of the three courts, only the ACtHPR has set an aspirational target for taking gender into consideration in the nomination and election of judges to the bench. Even so, the use of the phrase “adequate gender representation” in article 12(2) on nominations, and article 14(3) on elections, leaves room for subjective interpretations of what exactly it means to have “adequate” representation. It is therefore no surprise that it has taken eleven years for the court to finally make good on this target with the most recent election in January 2017. Remarkably, the ECOWAS Court on the other hand, neither has a quota nor aspirational target for the election of judges, but to date, the court has had 29% gender representation, placing it among one of the most gender balanced courts—if viewed over a span of time since the establishment of each court. The EACJ comes in last, with only four women judges to have ever served on the court out of a total of 25 judges. The data presented here partially confirms Grossman’s argument to the effect that courts without aspirational targets or quotas have the lowest number of women judges. I argue it is a partial confirmation because the ECOWAS Court has no aspirational target but has historically done well in terms of women’s representation. Nonetheless, if viewed in light of the fact that the ECOWAS Court has had only one woman on the bench for a while now, Grossman’s thesis is fully confirmed.
To date, what has been the gender parity report card of these three courts? At four women, out of a total of 25 (16%) judges to have served on the court, the EACJ has maintained the lowest number of women on the bench. This is followed by the ECOWAS court with five women out of a total of 17 (29%) judges and the ACtHPR comes in at 8 out of 23 (34%). That leaves us with the question of how the ACtHPR moved from an eleven-year record of two women on the bench at any given time to 5 out of 11? Before I proceed to answer this question, let me first caution against an unbounded optimism—keeping in mind that the gender parity gains made on the bench of ACtHPR is still too early to be taken as the “norm”. Gender parity on international courts can easily erode, evidenced by the fluctuations in the gender parity record of the International Criminal Court (ICC) over the years. Notwithstanding this caution, we must begin to ask important questions with this recent development on the bench of the ACtHPR. I raise three preliminary questions here. First, what factors account for the gender parity outcome? Second, how do we sustain the gender parity gain? Third and most importantly, how do we replicate the gains made in the ACtHPR on other sub-regional courts such as the ECOWAS Court and the EACJ?
Some misunderstandings about causes
First, on the question of contributory factors to the gender parity outcome, I am reminded of a recent conference, where I was asked whether the gains made on the ACtHPR was a result of foreign aid and the demands by donors to promote gender parity in institutions on the continent? To answer that question required a little detour into causality for a few minutes— and this I did, by posing a series of rhetorical questions. If we were to assume that gender parity across Africa is due to the “push or demand” by western donors, why were the same outcomes not happening at a faster rate in the international courts based in Europe? I was especially curious as to how the European Court of Human Rights (ECHR) which has been in existence since 1959, has still not achieved a gender balanced bench, especially considering the changes introduced by the Parliamentary Assembly of the Council of Europe. Changes in the nomination and election processes which, to some extent, may account for the upward tick in the number of women who have since served on that bench. I was also curious as to why it took the European Court of Justice 47 years since its establishment in 1952 for the first woman, Fidelma O’Kelly Macken of Ireland to sit on the bench in 1999? More importantly, we must be puzzled by the history of the International Court of Justice (ICJ), which, in its over 70 years of existence, can only boast of four women judges out of a total number of 106 judges. So, before we jump to the latent conclusion that foreign—nay Western donors are once again to be credited for positive gender developments on the continent, we need to check the gender scorecard of the benches of international courts of these “gender empowering states”.
Factors for gender parity gains at the ACtHPR
Returning to the question above, I would argue that the recent gender parity outcome at the ACtHPR is the combined result of a number of factors which I have discussed in an earlier commentary. In summary, these factors include the decision by the Office of the Legal Counsel of the African Union to ensure that women candidates were on the list of nominees, and secondly, the decision by the Assembly of Heads of State and Government to postpone further elections for filling the last two vacancies until there were women nominees on the ballot. Another factor that appears to have contributed to this pay-off can be linked to the advocacy for enforcing the gender equity provisions, specifically Article 9 of the Maputo Protocol by civil society organizations such as the Solidarity for African Women’s Rights (SOAWR). Lastly, we can pay some credit to the activities of the Pan-African Lawyers Union (PALU) and national Bar Associations and Law Societies across the continent for advocating for open and transparent nomination processes. While Grossman’s arguments for aspirational targets are a first step to solving the problem, it is not adequate to have quotas and aspirational targets in the treaties and statutes establishing these courts. In the case of the ACtHPR, we see that beyond quotas and aspirational targets, it required another step—the actualization of political will by the electing bodies to breathe life into the aspirational provisions to make it a reality.
Whereto from here?
Now to the question of how do we sustain these gains? The answer is simple—the struggle must continue! Gender parity is never a given and we must constantly negotiate power hierarchies to maintain the achievements and gains made at any given point in time. While the ACtHPR can be commended for achieving gender parity within 11 years of its existence as compared to other international courts, the ACtHPR still has work to do. The fact that the African Commission on Human and Peoples’ Rights (ACHPR) has maintained a high number of women commissioners since its inception may provide us with some lessons for sustaining the gains made on the ACtHPR. Though it is worth emphasizing that these are two different institutions guided by distinct mandates, functions and recruitment mechanisms. We also must consider the future and ask if these gains will be eroded if the jurisdiction of the ACtHPR were to be expanded? The proposed expansion will include jurisdiction over crimes under international law and transnational crimes as laid down in the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol). Some concerns expressed relating to the Malabo Protocol, such as whether the restrictions on non-governmental organizations’ (NGO) access to the court, could possibly have some detrimental effects on the work done by NGOs in advocating for gender parity during nomination and election of judges. Will such an expansion in the jurisdiction of the court increase the stakes and the political calculations member states make in their nomination and election of judges? To address this conundrum and to maintain these recent gender parity gains, I suggest that states interested in nominating women judges, civil society organizations, women’s organizations and law schools each have important roles to play in preparing strong candidates for future vacancies on international courts.
Lastly, how do we replicate these gains within sub-regional courts such as the ECOWAS Court and the EACJ? Dawuni and Kang have identified the important role of regional diffusion to the evolution of women in judicial leadership positions in Africa. As mentioned earlier, the ECOWAS Court has not maintained its gender-balanced record, with only one woman out of seven judges currently serving on the court. The ACtHPR is better positioned to have a regional ripple effect, given that it sits at the top of the hierarchy of regional courts on the continent of Africa. The success of this Court in empaneling five women can be used as a strategy to advocate for more women on other regional courts. For one, the development on the bench of the ACtHPR challenges the pool argument, because when the Assembly of Heads of State and Government demanded that qualified women be nominated, they found them! Besides regional diffusion, I would posit that if more nation-states ratify and accede to the jurisdiction of the court, (currently only 30 out of 54 states on the continent), chances are that more women judges will be available from the pool of candidates. Maintaining these gains will also require awareness raising among women judges at the national level on the possibilities and requirements for serving on these courts. Lastly, steps must be taken to set clear guidelines and policies for nomination procedures at the national level and these policies must be made available to all judges. The ACtHPR has set a roadmap to gender parity, it is now time for all interested stakeholders to sustain these goals and to that I say vive la diversité!