Women in the Judiciary

“Something which we think is impossible now is not impossible in another decade.”

Constance Baker Motley

With news that Justice Mandisa Maya has become the first woman President of the Supreme Court of Appeal, this brief takes a comparative look at the statistics of women on the bench globally to determine whether South Africa is lagging behind in this regard.

Introduction

Although it is not a new debate, the question of transformation and gender parity in the Judiciary dominated discussions during the April 2017 Judicial Service Commission interviews.  In 2016, the issue was the subject of a report released by the Commission for Gender Equality, reaffirming the slow pace with which the Judiciary is transforming.[1]  This is best displayed in the figures: from 311 judges appointed from 1994 to 2013, only 24% were women.

By 2016, 86 of the 242 judges occupying permanent positions in the country were women.  This amounts to only 36% of the seats in South Africa’s superior courts.[2]  Of the 24 leadership positions that are currently occupied in superior courts, 75% are held by men.  In recent years, gender representation in the Magistrates’ Courts has been slightly better than in superior courts with women making up 41% of the serving Magistrates.


Judiciaries in other countries

Looking at other jurisdictions, a recent study by the European Commission for the Efficiency of Justice (CEPEJ)[3] on European judicial systems in 2014 found that the average proportion of women among judges across European states was 51%.  Although this reflects parity, it becomes clear on further analysis that there is an under-representation in the number of female judges in higher courts.  On average, only 35% of seats in supreme courts are occupied by women.[4]  When it comes to leadership positions in these courts, the picture looks slightly bleaker.  On average, only 33% of Presidents at all three levels are women.  Some states attribute the difference in the number of women in courts of first instance and supreme courts to the fact that feminisation of the Judiciary is recent, so gender transformation will be more prominent initially in the lower courts.

The representation of women judges in the highest courts in Latin America and the Caribbean varies, but notably, it has increased by 12% from 2004 to 29% in 2014.[5]  Barbados boasts an equal amount of men and women sitting on the country’s highest bench, with several other countries showing similar trends of growing gender parity.[6]  Uruguay’s top court comprised exclusively of men, while representation in Trinidad and Tobago’s top court favours women with a tally of 74% of its bench occupied by women.

Moving north, the Supreme Court in the United States of America currently consists of three women and six men.  Historically, only four of the 112 judges to be appointed to the Supreme Court have been women.  In the 13 US federal courts, 36% of the incumbent judges are women.[7]  The overall picture in Canada looks better with 50% of the judges serving in their federal courts being female judges.[8]  Looking at its highest courts, women make up 44% of Canada’s Supreme Court, 45% of its Federal Court of Appeal and 35% of its Federal Court.


International and Regional Courts and Commissions

The world’s two international courts display differing degrees of female representation.  A third of the International Criminal Court bench is occupied by women and its leadership team consists exclusively of women.  The International Court of Justice, on the other hand, is less representative.  Of the 15 judges who are currently presiding officers of the Court, only 20% are women, with no woman occupying a leadership position.

On the African front, the African Court of Human and Peoples’ Rights has recently elected two more women to the bench, raising the total representation of women to 46%.  The African Commission on Human and Peoples’ Rights boasts seven female and four male commissioners.  The situation is vastly different in the Inter-American Court of Human Rights, which only has a single woman serving on a bench that seats seven, while only two of the seven commissioners of the Inter-American Court of Human Rights are women.  Both serve as Vice-Presidents of the Commission.  In Europe, only 34% of judges in the European Court of Human Rights are women, with one serving as Vice-President and two as Sectional Presidents of the Court.[9]

What do these figures tell us?

With a few exceptions, achieving gender parity in courts is a universal problem.  In 2011, the UN found that only 27% of the world’s judges at the time were women.[10]  Perhaps of even greater concern is the lack of women serving in higher courts and as leaders in courts across the world.  This holds true for Europe, Latin America, the US and Canada.  Apart from Africa’s Court and Commission, the situation is largely the same in international and regional judicial systems.  The issue is clearly systemic.

That said, the fact that this is not simply a South African concern, or even a concern of the “developing nations” alone, should not detract from the fact that women are severely under-represented in our Judiciary.  The current state of gender representation in courts globally should not be normative for us.  Ours is a Constitution that embraces transformation, founded on the values of human dignity and equality and the advancement of human rights and freedoms.  Magistrates’ Courts, where a large percentage of our people experience the judicial system, are doing better than superior courts.  But further progress is surely needed.

Michelle Toxopeus
Legal Researcher
michelle@hsf.org.za