This is not a discussion about quotas although I know that the title speaks of representation and often the debate on women’s rights to leadership often has come down to being assessed by number of women in post. This is the most visible way of checking whether a body, institution or state is gender diverse. I have argued strongly elsewhere for the institution of quotas as a means of addressing historical marginalisation of women in institutions in our modern society. However, for this piece, I want to stimulate a discussion on whether the presence of women in African justice and human rights institutions can bring us closer to attaining a more gender equal society.
The African Commission on Human and Peoples’ rights (ACHPR) was created to promote and protect human and peoples’ rights as defined in the African Charter on Human and Peoples’ Rights. Compared to the African Court on Human and Peoples’ Rights, which only exceeded 2 female judges in the 11-member court for the first time in July 2016 and now currently has 5 female judges by election at the January 2017 AU Summit, the ACHPR has 7 female commissioners to 4 male commissioners.
However, this was not always the case. In fact, it took longer for the ACHPR in its over 30 years’ existence to have gender parity in the 11-member commission in comparison to the Court. It is instructive to note that the first commissioners of the ACHPR in 1988 were all men. There were no women until 1993 when Mrs. Vera Valentina De Melo Duarte Martins (Cape Verde) was elected. The ACHPR is currently female dominated and in the last bureaus, more women have held the position of chair or vice-chair. Currently two women, Adv. Pansy Tlakula (South Africa) and Soyata Maiga (Mali) are Chairperson and Vice-Chairperson respectively.
While it has always been accepted that a judiciary should be independent and impartial as well as composed of individuals of impeccable character; It has always been debated by both scholars and activists alike whether the gender of these individuals influenced their decisions and whether the non-representation (or limited representation) of one gender affected perceptions and priorities of these bodies.Since more women joined the ACHPR as commissioners there has been a marked improvement on gender related focus and attempts to improve interpretation and protection of women’s rights. The establishment of a special mechanism to monitor women’s rights in the ACHPR Special Rapporteur on Rights of women in 1998 was one step. Perhaps, until there were women, it did not seem appropriate for one of the male commissioners to take the role. What is not present is not often obvious. Since the establishment of this special mechanism, 4 female commissioners have taken up this role.
There were promotional missions to countries, declarations and resolutions on status of women particularly in conflict situations and the ACHPR set in motion the first steps that led to the drafting and eventual adoption of the Protocol to the African Charter on the Rights of Women in Africa in 2003. The first decision on women’s rights took much longer. EIPR v Egypt changed all that in 2011 where the ACHPR for the first time pronounced that sexual and gender based violence and harassment meted against female protesters in Egypt amounted to discrimination on basis of gender and violated women’s rights. Courts are not exactly like Commissions. And in both cases, they can only adjudicate where matters have been brought before them. However, the visibility of women on the bench and in leadership gives some sort of assurance that when matters involving women’s rights are presented there is truly a mix of legal minds that would review it. The backgrounds, beliefs and gender of these minds would also play a role in how decisions are moulded. It Is hoped that as the African Court attains gender parity, this would also bring a gender perspective to rulings of the court and to its eventual first cases on women’s rights.