Race to the top? African women judges and international courts

What do we know about African women as subjects of international law? More so, what do we know about African women judges who sit on international courts at the regional and international levels? These questions are central to moving forward the agenda on increasing the number of women on international courts, especially considering that most judges (though not all) on international courts are also judges at the domestic level. Countries across Africa have made substantial gains in the numbers and leadership roles of women judges, as documented in Gender and the Judiciary in Africa: From obscurity to parity? Across, the continent, women occupy important leadership positions such as that of Chief Justices and Heads of Constitutional Courts (for more see Her Ladyship Chief Justice).

Developments at the domestic levels have been replicated at the international level with a growing number of African women judges serving on international courts. The diversity of the continent of Africa, its peoples, culture and rich history cannot be simply qualified by one word “African”, however, for purposes of creating a uniform understanding of who I am referring to, I use the word “African” to denote women who hail from a country in Sub-Sahara Africa. In “African women judges on international courts: symbolic or substantive gains?”, I have argued that the presence of African women judges challenges notions of tokenism;  indeed they are highly qualified to be in those positions. The professional achievements of these women indicate that they have stellar academic backgrounds, outstanding professional qualifications, trailblazing achievements, and some of them have earned the status as “first” in their various professional endeavors. Notwithstanding these observations, women’s entry into international courts appears to be a road less travelled for various reasons as documented by IntLawGrrl Nienke Grossman. A critical rule of thumb remains that appointments to international courts involve a great deal of domestic politics and women have to find strategies to combine their professional experiences with other political considerations in creative ways. As fellow IntLawGrrl Fionnuala Ní Aoláin notes,

By accessing elite judicial institutions, women exert agency by taking    ‘strategic, creative and intuitive action’, to generate individual opportunity as well as to enable dynamic entry to gendered institutional environments that have been, as a practical matter, closed to the female sex since their inception (231).

 The persistent trend of gender imbalance in international courts is more disturbing when viewed in the light of the fact that international courts are perceived as arenas for fighting injustice and inequality. Increasingly, research has demonstrated that courts, both domestic and international, continue to be informed by masculine expectations, often operating within institutional selection cultures that view the qualifications of women as secondary to those of men, as argued by Terris, Romano and Swigart (another IntLawGrrl).  In essence, Mackenzie et.al remind us that the playing field is not equal for men and women.

That being said, we are seeing some preliminary advancements in the number of women sitting on the benches of international courts. Women judges on the International Criminal Court (ICC) represent the different geographic regions of the world, yet, we see that some countries have had success in nominating women to the court and not so for others.  For instance, women represent about fifty percent of all judicial positions in France’s judiciary. Yet, France has yet to successfully nominate a woman judge to sit on the ICC or the International Criminal Court (ICJ).  Similarly, in Great Britain, women are said to account for about fifty percent of the judiciary, though a dismal number occupy positions on the higher courts. This poor record of women on higher courts may provide some preliminary explanation for its failure to nominate a woman to sit on the ICC, though the first woman to sit on the ICJ in 1995, Rosalyn Higgins, was from Great Britain.  In the case of Uganda, we see success in producing two women on international courts, one on the ICJ and the other on the African Court on Human and Peoples’ Rights (ACtHPR).

Despite the paltry numbers of women on international courts, the representation of African women judges appears to be quite remarkable, though a lot still needs to be done to maintain and hopefully increase the numbers on all courts. The ICC shows an interesting trend, as of mid 2016, of the total number of forty-one judges who have served since the inception of the court in 2003, 15 have been women, making up 36% of the total number of judges. African women make up five of the 15, representing the highest number from a single geographical region of the world.  It is important to draw attention to the danger of essentializing the experiences of African women judges. Of the total number of 15 women judges, the Africa group of countries has had the largest number of women judges, a total of 5, accounting for 62.2%. In the Western European and other group (WEOG), only two have been women, accounting for 18% of the total number of women judges on the court. Paradoxically, the WEOG leads with the total number of judges on the court (11 male), yet, it ranks at the bottom in terms of gender parity.

So what does this tell us? Is there an interesting story to be told? What have been the pathways to international courts for women from the continent of Africa? What contributions are they making to international law? The stories of  African women judges on international courts will be told in a forthcoming volume, “African Women Judges on International Courts: Untold Stories”, co-edited by  Dawuni, Josephine and Kuenyhehia, Akua (Routledge, 2017).

In sum, African women judges sit at multiple intersections of race, gender and class relations, both within the domestic and international spheres. By throwing light on the experiences and contributions of African women judges, this forthcoming volume provides important contributions to the scholarship on gender and judging by examining the trajectories and contributions of African women to international law and international courts. Diversity in perspectives and narratives of the actors who sit on international courts enriches the discourse in our attempts to understand what women judges do once they get to the bench. Rather than reinvent the wheel on the lack of women on international courts, this volume challenges us to refocus and ask the questions: who are these women? What do we know about them? What do they do once they get to these courts? As attempts are made to answer these questions, a number of patterns emerge and through these patterns, some details are provided on each of the women judges. The goal here is not to provide elaborate accounts on what each one of these women has done, but to highlight common patterns in the qualities they possess along a continuum of professional accomplishments.

 

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