Author: J. Jarpa Dawuni, Ph.D.

Open Letter to the African Union: Africa’s Opportunity to Address the Gender Diversity Problem at the International Court of Justice

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Women of Africa are increasingly demonstrating their resilience in global leadership, financial institutions, international criminal law, the United Nations, the World Bank and the International Criminal Court to name a few. But there is more that needs to be done— the November 11, 2020 elections to the bench of the International Court of Justice (ICJ) provides a unique opportunity for member-states of the African Union to once again demonstrate their support for gender equality by supporting the candidature of Judge Julia Sebutinde of Uganda—the first and only African woman to serve on that court.

Currently, women represent only 20% of the judges on the bench of the ICJ. As the ICJ is poised to celebrate its 75th Anniversary in April 2021, it is noteworthy that historically, out of the 108 judges since the court was established, only four have been women. To date, the principal judicial organ of the United Nations remains the most gender-imbalanced international court in the world. This imbalance has prompted scholars and advocacy groups such as the Gender Equality Campaign (GQUAL) to engage in advocacy for diversifying the ICJ bench. On November 11, 2020, elections will be held to fill five judicial positions on the ICJ. Of the eight candidates on the ballot for this election, three are women; Julia Sebutinde of Uganda, Hanqin Xue of China, and Maja Seršic, of Croatia.

In 2012, Judge Julia Sebutinde made history as the fourth woman to be elected to the bench of the ICJ in over 60 years of the Court’s existence. Judge Sebutinde’s election was remarkable for reasons beyond her gender: she was also the first woman from the African continent to be elected to the ICJ, compared to the 14 African male judges who sat on that court before her. As an international judge, Judge Sebutinde’s appointment signaled the intersections of race, gender, geographical location, and other identities that women from non-western societies must navigate. Judge Sebutinde’s journey to the ICJ, was as a combination of an unwavering ambition to become an international judge, and professional experiences spanning 41 years, having has served as a judge and jurist at national and international levels, including as a judge of the High Court of Uganda and the Special Court for Sierra Leone. 

Judge Sebutinde’s multiple and intersecting identities of race, gender, geography, as well as her professional experience  are reflective of her journey to the international bench, a journey which she describes as ‘different threads that were woven into a kind of cloth, the kind of cloth that I now am’ (quoted in Judge Julia Sebutinde: An Unbreakable Cloth,” in International Courts and the African Woman Judge: Unveiled Narratives.

Judge Sebutinde’s journey as the first woman from an African country to sit on the ICJ is symbolic of the increasing number of African women judges sitting on international courts since 2006.  As one of the most gender-imbalanced international courts, the upcoming elections in November to fill the five vacant seats on the bench of the ICJ provides a unique opportunity for the Africa group of States to back the nomination and election of a strong candidate—who just so happens to be a woman!

Judging Julia Sebutinde

On Merit

Judicial selection processes to international courts aspire to meet the highest standards of merit, integrity, professionalism, equal opportunity, inclusion, and diversity. Julia Sebutinde possesses a total of 41 years of experience as a judge and jurist at national, regional, and international levels. Her expertise spans public international law, international humanitarian law, international human rights law, the law of the sea, environmental law, and international criminal law. As a judge at the ICJ since 2012, Judge Sebutinde has contributed to 40 Judgments, 65 Orders of Court, and an Advisory Opinion. Besides her judicial functions, she has served on the Court’s essential committees, including the Chamber of Summary Procedure, the Budgetary and Administrative Committee, and Head of the Information and Communications Technology Committee of the Court. As an incumbent judge, she has experience in the internal operations of the Court. She has initiated key internal reforms that have contributed to strengthening the ICJ internally, including internal justice for staff members and the modernization of the Court’s processes.

Judge Sebutinde’s knowledge and grasp of international law builds on her experiences as Judge of the Special Court for Sierra Leone (SCSL) (2005-2010); and Presiding Judge of Trial Chamber 2 of the Special Court for Sierra Leone (2007-2008 and2010-11). Judge Sebutinde’s contribution to jurisprudence is captured by international law professor Nienke Grossman when she notes;

Among Judge Sebutinde’s most noteworthy individual opinions during her time on the Special Court are a separate concurring opinion regarding “forced marriage” in the AFRC Trial and a dissenting opinion on whether to accept a late brief by defense counsel in the Taylor trial. Judge Sebutinde’s separate concurring opinion in the AFRC trial explored the legal contours of “forced marriage” and highlighted the testimony of expert witnesses on the subject.

Judge Sebutinde has written many declarations and separate opinions appended to the judgments of the ICJ, thus contributing to its jurisprudence, including a separate opinion to the Chagos Advisory Opinion, in which she elaborated on the right to self-determination in the context of decolonization as having attained peremptory status (jus cogens) under customary international law, from which no derogation is permitted.

Judge Sebutinde has delivered numerous papers and public lectures and holds several international awards, including two Honorary Doctorates, in recognition of her contribution to international peace and justice. Having served on the ICJ bench since 2012, Judge Sebutinde brings with her the knowledge and skills of an incumbent judge who has demonstrated that she understands the internal workings of the Court and has contributed to international law through her judicial opinions.

On Process

Fourteen male African judges preceded the arrival of Sebutinde as the first African woman judge at the ICJ. The practice has been for the African Union (AU) to endorse the re-election bid of incumbent judges contesting for a second term. Judge Julia Sebutinde is the first and only African woman on the Court, and the first judge whose bid for a second term has not been formally endorsed by the AU and is instead challenged by two male competitors. While AU endorsement does not necessarily mean an automatic election, the fact that the first woman candidate’s bid for re-election has not been endorsed by the AU, calls for further reflection on promises of gender equity in representation. The AU must honor the customary practice of supporting incumbent candidates for re-election by openly endorsing the re-election bid of the incumbent candidate who just so happens to a woman.

On Gender Equality

Gender equality does not mean that women should be nominated or endorsed at the expense of men. The ICJ’s infamous historical record as one of the most gender-imbalanced courts in the world requires deliberate action in addressing this disparity. All the former male African judges of the ICJ received the AU’s endorsement, and each one served two terms (unless they died in office or voluntarily resigned). Why is the AU refusing to endorse the first and only African woman judge? The lack of endorsement by the AU should send a chilling signal to all member States, international organizations, civil society advocacy groups, women’s organizations, and all individuals interested in gender diversity, inclusion and equal opportunities for all sexes. The AU must affirm its commitments on gender equality contained in multiple legal instruments at the regional and international levels. The election of international court judges should be of concern to all members of the international community. As a principal judicial organ of the United Nations, the bench of the ICJ should symbolically reflect the world’s gender diversity.

The AU must hold true to the progress within the AU system as demonstrated by the election of women judges to the ACtHPR—making it the most gender-balanced court in the world currently. In electing judges to the ICJ, the AU and individual African states have been presented with a unique opportunity to showcase to the world that qualified African women candidates have equitable and strong support from member-states of the AU to serve in international organizations. The AU must live up to its commitment to promoting gender equity, equality, inclusion, and diversity as espoused in the Maputo Protocol. The AU must continue the progress made, as seen in the number of women represented in the African Commission and the African Court (ACtHPR). The African Union must live up to its espousal of gender equality by endorsing the incumbent candidate’s re-election—who has the merit, comes with a wealth of international law experience, and just so happens to be a woman!

**An earlier version of this post was published on the blog of the Institute for African Women in Law.

Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights— A Lesson for African Regional Courts?

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Image-1ON August 27 2018, the newly elected judges on the African Court on Human and Peoples’ Rights were sworn in at the seat of the Court in Arusha, Tanzania. Earlier on, from June 25 to July 2, 2018, the 31st Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU) took place in Nouakchott, the capital city of the Islamic Republic of Mauritania. One of the agenda items during the session was the election of new judges to fill vacancies on the African Court on Human and Peoples’ Rights (ACtHPR). Four spots had opened on the court—one of which was left open by Judge Solomy Balungi Bossa who resigned from the ACtHPR after her successful election to the International Criminal Court (ICC) in December 2017.

The three newly sworn in judges are; Judge Imani Aboud, the Judge-in-Charge at the Tanga High Court in Tanzania and current President of the Tanzania branch of the International Association of Women Judges (IAWJ), elected from the East African region. Judge Stella Isibhakhomen Anukam, Director of the International and Comparative Law Department in the Federal Ministry of Justice in Abuja, Nigeria, representing the West African region, and Professor Blaise Tchikaya, a Professor of International Public Law at University of Paris, France, a native of Congo representing the Central region. The fourth seat was retained by Judge Ben Kioko of Kenya who was re-elected for a second six-year term.

This recent election is a historical one because it brings the gender composition of the court to six women and five men! The record of gender parity set by the ACtHPR begun with the elections in 2017, where in an earlier post Vive la Diversité!, I noted that in celebrating the gains made at the African Court in achieving gender parity,  the Court’s gender parity success should provide lessons for other regional courts in Africa—especially the benches of the  ECOWAS Court of Justice and the East African Court of Justice where women judges are woefully underrepresented.

From Tunis to Lusaka, women judges across the continent of Africa are making important strides in domestic judiciaries as shown in Gender and the Judiciary in Africa: From Obscurity to Parity? These developments do not rest only at the prescriptive level, as  a growing number of women have broken the veil of masculinity and ascended to leadership positions as Chief Justices and Presidents of Constitutional Courts. From Arusha to The Hague, the increase in the number of women judges from Africa is being felt at the international level as documented in International Courts and the African Woman Judge: Unveiled Narratives.  Currently, of the six women judges on the bench of the International Criminal Court (ICC), two are from Africa, accounting for 33% of all women on the bench— in a tie with the Latin America and Caribbean Group. At the International Court of Justice (ICJ), Justice Julia Sebutinde made history when she was elected to the ICJ bench in 2012, making her the first woman from the continent of Africa on the ICJ.

The representation of African women on the ACtHPR and the ICC strongly suggests that there is a pool of qualified women judges from the continent of Africa to fill positions on the benches of sub-regional, regional, and international courts. The record set by the ACtHPR, by achieving gender parity in its 12 years of existence is remarkable in the history of international courts and tribunals, where it took over forty years for the European Court of Justice to appoint its first woman judge, Fidelma Macken in 1999. The gender parity gains at the ACtHPR can be linked to a combination of regional factors and mechanisms. One such mechanism is the activist agenda to achieve gender equality embodied in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa(Maputo Protocol) and the Solemn Declaration on Gender Equality in Africa, aimed at achieving gender equality across the continent. Second, the sustained advocacy for women’s equal participation in decision-making, led by women’s organizations such as Solidarity for African Women’s Rights (SOAWR). Additionally, the commitment of the Legal Affairs unit of the African Union in reviewing and rejecting nominations that do not contain the names of women, has proved instrumental in meeting the nomination requirements. Credit must also be given for the political will of the Assembly of Heads of State and Government to abide by the gender representation provisions in Article 12 (nominations) and Article 14 (elections) of the Protocol to the African Court on Human and Peoples’ Rights on the Establishment of  an African Court on Human and Peoples’ Rights (Court Protocol).

Beyond the numbers, what should the gender parity on the ACtHPR mean?

Attaining a critical mass of women judges on the ACtHPR is a great achievement, but more needs to be done. In the following discussion, I offer seven suggestions on how to move beyond the numbers.

First, is the need to develop specific strategies. The gender parity on the ACtHPR should provide lessons leading to the development of specific strategies for achieving gender parity on the benches of other African regional courts. This development should be used as an advocacy tool by women’s rights organizations to signal to other regional courts to nominate and elect qualified women judges to judicial positions. Not all sub-regional courts have gender aspirational targets in their protocols. Nonetheless, even where there are no aspirational targets, the success achieved by the ACtHPR should be framed and articulated as a regional diffusion mechanism for developing norms and best practices for judicial selection in other regional courts. The success at the ACtHPR should encourage other courts to revise their selection methods and bring them to par with evolving international standards for achieving gender balanced benches.

Second, is the need for advancing knowledge. Current scholarship needs to look beyond the descriptive representation of women on the ACtHPR. Feminist legal scholars should move past essentialist studies on the numbers of women judges and move towards analyses of questions on the substantive representation of judges. Research on substantive representation of African women judges has shown that women judges bring more than gender and racial diversity to the benches of international courts. Scholars need to focus on new research questions that interrogate wider judicial issues beyond why more women are needed and what they do on these courts. In this endeavour, scholars need to be mindful of avoiding essentialist repetitions of the “difference women judges make”, a caution succinctly captured by Judge Sebutinde when she notes;

In a world where one half of the population is female and the other half male, I would like for people to say one day that the World Court is comprised of fifty percent men and fifty percent women. That would be gender parity. It serves no purpose for people to ask, what difference or contribution have those three women judges made since they joined the Court? … 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.[1]

Third, is spreading the progress across sectors. The gender parity gains made at the ACtHPR and the long established gender parity on the African Union Commission, should be used as tools for promoting the African Union Agenda 2063, specifically goal 5, of achieving “an Africa whose development is people driven, relying on the potential offered by people, especially its womenand youth and caring for children.” Relying on the potential of women for development is not new to the African context. Women have always been at the center of economic development and have contributed in many ways to the domestic and international economic development projects. Yet, one of the many things lacking is the political will and commitment of governments and leaders to provide conducive political conditions and free and fair electoral processes aimed at encouraging and promoting women running for elected office. The remarkable progress made in increasing the gender representation on the ACtHPR should spread horizontally and vertically into other political, bureaucratic and administrative levels—beginning with the African Union organs and spreading across domestic government structures.

Fourth, is the mentoring impact. The increase in the number of women judges on both domestic and regional courts in Africa opens the door and encourages young girls and women to aspire for professional leadership. As the continent of Africa deals with its youth bulge, the success of women judges and other women in leadership positions should be used as learning and mentoring opportunities for the younger generation. In the words of Judge Florence Ndepele Mwachande Mumba;

The call for women judges must start at state level. National governments must be persuaded to open judiciaries to women judges and to promote their nomination to international courts. It is necessary to provide for gender balancing in international courts, at all times. Otherwise, women judges can easily be overlooked as the majority heads of state are still men. International legal practice offers women opportunities to excel and to contribute towards peace and harmony for all. Other women judges I worked with were of similar views. They felt that if women lawyers were promoted to high judicial office, gender balance would be attained. This would encourage girls to pursue law knowing that if they distinguished themselves, they can reach the highest offices in the legal profession.[2]

There is a lot to learn from the growing trend of women judges and their leadership capabilities. In May 2010, of the 18 judges on the ICC bench, 11 were women, the highest number the court had ever had. In 2015, the ICC made history with its all-female Presidency with the election of Judge Silvia Férnanda de Gurmendi as President, Judge Joyce Aluoch as First Vice-President and Judge Kuniko Ozaki from Japan as Second Vice President. At the ICC, four African women have served in the Vice Presidency; these include Judge Akua Kuenyehia of Ghana, Judge Fatoumata Dembele Diarra of Mali, Judge Sanji Monageng of Botswana and Judge Joyce Aluoch of Kenya. At the African Court, Judge Sophia Akuffo of Ghana and Judge Elsie Thompson of Nigeria have served as President and Vice President respectively.

Sixth, gains are not linear.The gender parity fluctuations at the ICC has shown that reaching gender parity on an international bench is not to be taken as a given, as these gains can be reversed at any time. Before the December 2017 elections of judges to the ICC, with the retirement of six judges, only one woman remained on the court. But for the election of five new women judges, the ICC would have regressed on its gender parity record. Sustainable gender balanced courts require continued vigilance to ensure that the progress made becomes institutionalized, eventually developing to the status of a customary principle or practice.

Seventh, is the need for sustained advocacy.Many challenges remain in achieving gender parity across other international institutions and courts. Gender activists must continue the drive to change the picture of international law through movements such as the GQUAL Campaign. Sustaining and replicating the progress at the ACtHPR provides lessons not only for African courts, but for all international courts, and advocates of gender parity can draw some best practices from the continent of Africa.

[1]Grossman, Nienke. (2018) Judge Julia Sebutinde: An Unbreakable Cloth. In, Dawuni, Josephine and Kuenyehia, Akua (ed.s), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

[2]Mumba, Florence N.M. (2018). Women Judges in International Courts and Tribunals –The Quest for Equal Opportunities.In, Dawuni, Josephine and Kuenyehia, Akua (eds), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

***This article is cross-posted from the Institute for African Women in Law.

INVITATION TO BOOK LAUNCH

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BOOK LAUNCH

The African Foundation for International Law  and the International Institute of Social Studies at Erasmus University, kindly invites you to the launch of ‘International Courts and the African Woman Judge: Unveiled Narratives’ and a Panel Discussion at the International Institute of Social Studies.

Date:    May 7, 2018

Time:   18:00-20:00

Venue:   Erasmus University, International Institute of Social Studies,  Rotterdam,  The Netherlands.

Event details and a flyer with link to registration can be found here: The Hague2018.

                          The event is free and open to the public. Reception to follow.

 BOOK LAUNCH ~~~ INTERNATIONAL COURTS AND THE AFRICAN WOMAN JUDGE: UNVEILED NARRATIVES (ROUTLEDGE, 2018)

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The Institute for African Women in Law and the Wilson Center Women in Public Service Project jointly launched the book, International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018) edited by Dr. Josephine Jarpa Dawuni and Hon. Judge Akua Kuenyehia (Former Judge of the International Criminal Court), with a foreword by Hon. Judge Gabrielle Kirk McDonald (Former Judge/President of the ICTY and Former Arbitrator, Iran-US Claims Tribunal). 

Gwen Young, Director of the Wilson Center Women in Public Service Project introduced the panel.

Dr. Josephine Jarpa Dawuni opened the discussion, highlighting her motivations for editing this volume, noting among others the importance of drawing on the theories of postcolonial feminism, legal narratives and feminist institutionalism to analyze the place of women from the continent of Africa on international courts. She noted, “Why are we looking at African women judges? Why not the fact that she is a judge, she is qualified, she can do it. Legal Narratives help us understand their trajectory to the international bench.”

 

 

Prof. Nienke Grossman discussed the work of International Court of Justice Judge Julia Sebutinde (Chapter 3 below).

 

Prof. Rachel Ellett’s chapter focused  on Judge Kellelo Mafoso-Guni of the African Court of Human and Peoples’ Rights (ACtHPR) (Chapter 7 below).

Counsellor Christiana Tah, Former Minister of Justice, Republic of Liberia, provided remarks as a discussant. She noted;

“We [women] want to participate, we want to be a part of the process.”

“It’s important to uplift African women, but it’s not all about race, it’s about uplifting all women.”

“One of the things I always think about when discussing Africa and the judiciary is that you have to look at it as a dichotomy because of the history of colonization. How do you harmonize the two?

                                          Other Chapters in the Book Include

Chapter 1: Introduction: Challenging Gender Universalism and Unveiling the Silenced Narratives of the African Woman Judge

By Josephine Jarpa Dawuni

This chapter provides the theoretical and conceptual framework around which the book is developed. By engaging in an overview and analysis of existing scholarship on gender and judging, it questions the gaps in existing theoretical perspectives and exposes questions on gender diversity which have not been addressed. It discusses the method and structure of the book.

 

 Chapter 2: Women Judges in International Courts and Tribunals: The  Quest for Equal Opportunities

 By Judge Florence Ndepele Mwanchande Mumba

This chapter is a personal reflection on the life and journey of Justice Florence Ndepele Mwachande Mumba. The chapter traces her life growing up in Zambia, attaining a legal education and becoming the first woman High Court Judge in the Zambia. In 1997, Judge Mumba was elected to the United Nations International Criminal Tribunal for the former Yugoslavia.  She served as a Trial Judge for six years. She presided over, the Prosecutor vs Anto Furundzija, IT-95-17/1; the Prosecutor vs Kunarac  et al, IT-96-23-T; the Prosecutor vs Simic et al. IT-95-9/T. Convictions in these cases included torture as a violation of laws or customs of war, outrages upon human dignity, rape as torture, enslavement, and crimes against humanity for persecution, cruel and inhumane treatment and beatings.  These were among the first convictions for ICTY where rape and sexual violence were pronounced as crimes against humanity, war crimes and torture. Judge Mumba presided over two guilty pleas, The Prosecutor vs Drazen Erdemovic, IT-96-22 and the Prosecutor vs Milan Simic, IT-95-9/2. Judge Mumba’s view is that international crimes trials must be held in the territories where atrocities were committed for the benefit of indicted persons and the community. Statutory provisions for gender balance in international courts and tribunals are essential.

Chapter 3: Julia Sebutinde: An Unbreakable Cloth

By Nienke Grossman

This Chapter discusses the life story of International Court of Justice Judge Julia Sebutinde.  It highlights her determination and strength of character, while raising questions about gender, geographical background, race, ethnicity and judging, and international judicial selection procedures.  After detailing her biography before becoming an international judge, the Chapter turns to her selection to, experiences on and contributions to the Special Court for Sierra Leone, and subsequently, the International Court of Justice.  The Chapter contains a section on her advice to future generations, an analysis of why her story is significant, and finally, it suggests avenues for further academic research.

Chapter 4:  Akua Kuenyehia : Leaving a Mark Along the Journey for Human  Rights

 By Josephine Jarpa Dawuni

This chapter chronicles the life and journey of Justice Akua Kuenyehia, an academic, women’s rights activist and an international court judge. Using legal narratives as a tool for centering her experiences, the chapter presents monumental developments in her life as presented sometimes in her voice and situated within existing discourse on women, gender and feminist engagement with international law.

Chapter 5: Fatoumata Dembélé Diarra : Trajectory of a Malian Magistrate and Civil Society Advocate to the International Criminal Court

 By Sara Dezalay

A high-level magistrate and prominent civil society advocate in Mali, Judge Fatou Dembélé Diarra featured among the historic first bench of judges elected to the International Criminal Court (ICC) in 2003. This chapter gives prominence to the voice of Diarra herself, as an exceptional individual with an acute degree of reflexivity over her own trajectory, the options she had and the professional strategies she pursued, and further, that of her own country’s post-colonial history. In so doing, however, it strives to reconstruct the structural conditions that can help explain her path, in what was still a French colony, in 1949, to the ICC. It underlines, meanwhile, how Diarra’s trajectory can prove a powerful entry-point to account for the position of legal elites in post-colonial Mali, and further, the role played by her appointment to the ICC, as a woman and as an African, in fostering the authority of the court over time. 

Chapter 6: Judge Sophia Akuffo: Balancing the Equities

By Kuukuwa Andam and Sena Dei-Tutu

Justice Sophia was sworn in as the 13th Chief Justice of Ghana on June 19, 2017. Prior to this, Akuffo had served as the first female President of the African Court on Human and People’s Rights (ACtHPR) in 2012, as Vice-President of the ACtHPR in 2008 and as a Justice of the Supreme Court of Ghana since 1995. This chapter tracks Akuffo’s career from her birth in Akropong-Akuapem, in the Eastern Region of Ghana, to her appointment as the second female Chief Justice of Ghana. In particular, a selection of cases that Akuffo delivered judgments in will be analyzed as a means of contextualizing Akuffo’s legal philosophy. Additionally, this chapter will examine some of the challenges Akuffo faced as well as the lessons learnt during her legal career. In identifying the barriers that Akuffo encountered, this chapter considers the similarities between Akuffo’s experience and the experiences of thousands of female lawyers and judges working on the African continent; with a mind to highlighting avenues for increasing the participation of African women on International Courts. The chapter concludes with some observations and future research questions. 

Chapter 7: Justina Kellelo Mafoso-Guni: The Gendering of Judicial Appointment Processes in African Courts

By Rachel Ellett

Representation of women in domestic and international courts is essential to the legitimacy of those institutions. Over the last decade low representation of women judges has begun to be addressed through reform of appointment processes. However, reforming formal appointment mechanisms does not eliminate the gendered informal structures of judicial appointments. Justice Mafoso-Guni’s biography – first woman to the Lesotho High Court and the African Court of Human and People’s Rights (ACtHPR) – illustrates the pervasiveness of informal gendered institutions as an obstacle to women reaching the bench; both in Lesotho and the ACtHPR. Utilizing diachronic analysis, this chapter reveals the arch of Mafoso-Guni’s career trajectory and pauses to offer more in-depth analysis on her appointment challenges in Lesotho and to the ACtHPR.  Placing Mafoso-Guni’s appointment challenges in the broader context of increasing numbers of women to the bench more generally; her story highlights both the limitations and the gendering of individual agency in light of weak formal institutional commitments to gender parity. It further reveals the gendered power asymmetries present in the informal institutional mechanisms of both domestic and international judicial appointments. Judicial appointments perfectly illustrate the gendered institutional context in which women seek to carve a pathway to the bench.

Chapter 8: Elsie Nwanwuri Thompson: The Trajectory of a Noble Passion

By Rebecca Emiene Badejogbin

This chapter explores the trajectory of Judge Elsie Thompson from her background, to the Nigerian judiciary and onward as a Judge and eventually a Vice President of the African Court of Human and People’s Rights. It reveals the distinctiveness of her experiences and trail blazing paths, and is a demonstration of the impact of various factors such as socio-economic and political, as well as cultural location, education, contextual experiences, institutional opportunities and personal agency on the ascendancy of African women to transnational courts, and according to her, divine providence. The narration and analysis of these experiences engage a convergence of theories that touch on the impact of institutional arrangements on women, and the lingering effects of political, economic and cultural factors on women’s access to political appointments in a post-colonial context. While her experiences generally agree with literature on the subject of women’s ascendancy to these courts, this chapter closely interrogates her ascent as an African woman to a transnational court and states that not only does her presence in the court create judicial diversity, she has made ‘valuable contributions to jurisprudence and the development’ of regional laws.

 Chapter 9: Conclusion: International Courts and the African Woman Judge– Unlocking Doors, Leaving a Legacy

By Josephine Jarpa Dawuni and Akua Kuenyehia

This chapter provides a recap of the goals of this project. It summarizes the key findings, amplifies questions yet to be explored and sets an agenda for the development of future research on women and judging in Africa. It also sets a plan for maintaining the momentum made with African women’s access to international courts and tribunals.

 Copies of the book can be purchased on Amazon.com 

For speaking engagements, email: info@africanwomeninlaw.com

 

Achieving Gender Parity in International Courts and Bodies: Does Diversity Matter?

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IMG_0637
Conference Attendees

From October 3 to 5 2017, women’s rights advocates, feminist scholars, Ambassadors, Heads of Government, policy practitioners and supporters of women’s rights convened in the beautiful city of Den Haag in the Netherlands. Viviana Krsticevic, Maria Noel and the entire team at the GQUAL Campaign organized this conference which had a twofold purpose; first, to celebrate the second-year anniversary of the GQUAL Campaign, and second, to bring together participants under a conference theme “Changing the picture of International Justice.” The highlights of the three-day event included an exciting plenary session with speakers like Judge Silvia Fernández de Gurmendi, the current President ofthe International Criminal Court (ICC).

ICC President Judge Fernandéz de Gurmendi and Prof. Josephine Dawuni

Judge Fernandéz de Gurmendi, while acknowledging the gains made in achieving near gender parity on the ICC bench, cautioned participants and feminist advocates that such gains could easily be reversed. The ICC reached a high of eight women judges out of eighteen in 2003, which reduced to six out of eighteen by early 2017. With the  ICC elections in December 2017, women took five of the six available seats. Out of the five women elected, two were from the continent of Africa, Judge Reini Alapini-Gansou of Benin and Judge Solomy Balungi Bossa of Uganda.

 Another highlight of the plenary session was the speech by the current Vice President of Costa Rica, Her Excellency Ana Helena Chacón. While reflecting on her experience in the parliament of Costa Rica and now in the office of the Vice President, Mrs. Chacón hinted at the fact that women have to work together to push women’s equality forward, noting further that “together we can and we should change the face of international quality; democracy is real if we leave no one behind.” Dr. Theresia Degener, Chairperson of the United Nations Committee on the Rights of Persons with Disabilities (CRPD), gave moving remarks on the imbalance in the UN body, noting in particular the challenges she has had to face as the only woman in the Committee at one point during her tenure. She called for more efforts to nominate women. The rest of the conference was filled with insightful panels and workshops aimed at addressing central questions such as why equal participation of women matters, the international obligations of states in promoting gender equity on international courts and bodies, and strategies on how to achieve gender parity on these bodies.  The conference concluded with the adoption of an Action Plan to achieve gender parity.

The overall goal and theme of the conference, was to acknowledge modest gains, while mapping a strategy for moving the campaign forward. The question that remains to be answered is how do we move this agenda forward? I provide a few strategies, which I believe are important for the overarching goal of changing the picture of international justice with the goal of achieving gender parity on international courts and bodies. In the first place, it is important to acknowledge, celebrate and develop a conscious effort to embrace all forms of intra-group diversity. To borrow from the acclaimed poet, Maya Angelou, “we all should know that diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal in value no matter what their color.” The global feminist movement has come under attack for tendencies to reproduce the very gendered and privileged hierarchies which it purports to fight in the first place. For Black feminist scholars such as Kimberlé Crenshaw, developing the concept of intersectionality provides a new prism through which feminist scholars can begin to question the multiple and intersecting layers different women face in their struggles against patriarchy and other forms of dominant discourse.

 

The call for acknowledging diversity has also come from what some call “Third World Feminists”. Scholars like Chandra Talpade Mohanty has criticized the western notions of womanhood and the incipient tendency at “othering” non-western women in her powerful piece “Under Western Eyes.” African feminist scholars such as Filomina Steady, Amina Mama, Oyeronke Oyewumi and Akosua Adomako Ampofo have increasingly called for a recognition of African notions of womanhood and the impact of imperialist and globalist layers of oppression in challenging the traditional notions of womanhood and women’s agency. Chicana feminist such as Gloria Anzaldúa, and feminist scholars from Asia such as Trinh Minh-ha, each remind us of the need for the global feminist movement to accept, celebrate and embrace a truly diverse global ethos of feminism.

So, how can the plethora of feminist voices be incorporated in the global agenda for more women on international courts in order to create an all-inclusive bench? The answer is simple; that in adopting strategies to increase gender parity on international bodies, these efforts  should focus on adopting all-inclusive strategies that advocate for the “best woman candidate”, irrespective of national origin, geo-political affiliation, sexual orientation or other identity marker. This sounds like a simple suggestion; however, it requires that feminist scholars develop an understanding of the historical, social and political context from which different women come from. No doubt the domestic politics of judicial nominations will have to be examined as well. Ascribing personal agency to some women from particular regions of the world and not to others­— which has tended to plague the global feminist movement, will need to be addressed in the global efforts demanding the nomination of more women. If indeed, feminist scholars and advocates are interested in achieving gender parity, it must be a gender parity that fully embraces intra-group diversity. The multilayered and intersecting identities women come with, will need to be fully recognized, acknowledged and accepted.

Another important strategy for the success of the GQUAL Campaign will be the cross-pollination of ideas and strategies. In other words, there is the need to learn from one another in terms of what has worked in some places and not so well in other places. Let me pause by noting that I am fully aware of the plethora of different variables at play here—the different legal traditions, the different political systems, the multiplicity of selection methods and the varying levels of political will to name just a few. Nonetheless, as I argued in my presentation at this conference, based solely on my research findings from the continent of Africa, women across the African continent have done relatively well, within a relatively short time period in not only accessing the judiciaries, but rising to the top as Chief Justices. At the international level, women from across the continent of Africa have made immense gains as international judges—both permanent courts and ad hoc tribunals.

Though the gains are not uniform across the continent—and that should come as no surprise for the second largest continent of 54 nation-states, yet certain patterns are evident. The success of African women as judges on international courts at the global and sub-regional levels in the International Criminal Court, the International Court of Justice and the African Court on Human and Peoples’ Rights are noted in a recently published edited by Josephine Dawuni and Akua Kuenyehia—- International Courts and the African Woman Judge (Routledge, 2018). Using legal narratives, this book presents the lived experiences of seven women judges from Africa. It challenges exiting notions of gender and judging, it elevates the voice of the woman judge and it leaves a legacy for the future through the voices and lives of these remarkable and accomplished women judges. Documenting the experiences of women who have blazed the trail in the international judiciary is important for raising awareness not only to stakeholders, but also to future generations that “yes, women can!” Documentation through theoretically grounded research and the development of context relevant epistemology, such as the matri-legal feminist theory I have argued elsewhere[1] is important for moving the gender equality agenda forward.

IMG_9821Other speakers at the conference spoke about developments that have taken place within the African context. Osai Ojigho highlighted the developments within the African Court which led to the current situation with the African Court being the most gender balanced international court as of this writing. In an earlier post, I highlighted the African court as a roadmap for achieving gender parity and encouraged other courts to follow suit. The African experience provides many lessons which the rest of the world can learn from. To think that in its eleven-year history of existence, it has achieved gender parity, a goal and aspiration which the European Court of Justice and the European Court of Human Rights are yet to attain. Sheila Keetharuth, the UN Special Rapporteur on the Human Rights Situation in Eritrea highlighted the developments that have taken place within the African Commission on Human and Peoples’ Rights where women have made gains as Commissioners.

Lastly, it is necessary for the survival for a movement, or campaign like GQUAL, that  scholars and policy makers engage in research as a tool and mechanism for awareness raising. Justice Mary Mamyassin Sey, a Justice of the Supreme Court of The Gambia and first woman judge in The Gambia discussed her experiences across multiple jurisdictions, spanning The Gambia,  and as a Commonwealth judge in Sierra Leone, Swaziland, Liberia and Vanuatu. While discussing the challenges of working in different cultural contexts and often being the “first” and often “only woman”, Justice Sey noted that her call to duty, integrity and personal work ethics contributed to her success in these multiple arenas. Indeed, being at the intersection of multiple identities has come with its own costs, for instance with the threat on her life and threat of deportation for her decision in the Vanuatu Supreme Court that led to the conviction of 14 members of parliament.

The foregoing summary is my personal de-briefing from the wonderful conference in The Hague. Many strategies and action plans were adopted during the workshops held over two days. We look forward to more engaged, vibrant, diverse and theoretically relevant and practically plausible strategies that will be developed out of this conference. Many questions abound, such as the issue of setting aspirational targets as posited by Professor Nienke Grossman. For other practitioners such as Osai Ojigho who poignantly

IMG_9767

(L-R )Josephine Dawuni, Nienke Grossman and Osai Ojigho at the foregrounds of the ICJ.

asserted “why walk when you can fly?”, quotas should be used as a necessary strategy to achieve gender parity, Ojigho further argued that “women should not be shamed into thinking that quotas or affirmative action lacks merit.” Gender equality matters not because it is a women’s issue, but because it is a human issue. Together, we can make gender equality on international courts and bodies a reality! Join the movement by signing the GQUAL Campaign Pledge!

 

 

[1] See, Dawuni, Josephine. (2018). Matri-legal Feminism: An African Feminist Response to International Law. In Ogg, Kate and Rimmer, Sue Harris (eds.). Feminist Approaches to International Law. Edward Elgar Publishing. (Forthcoming, 2018).

 

African Women Judges and Gender Parity on the African Court on Human and Peoples’ Rights

/ J. Jarpa Dawuni, Ph.D. / Leave a comment

At the recently ended 28th African Union (AU) Summit, held January 22-31 2017 in Addis Ababa, Ethiopia, the African Union has finally made good on its promise to promote gender parity on the African Court on Human and Peoples’ Rights (ACtHPR)! Two women judges were elected to fill the two remaining vacancies on the court, these are Justice Chafika Bensaoula of Algeria and Justice Tujilane Rose Chizumila of Malawi. This development brings the total number of women judges currently serving on the court to five out of a total of eleven judges. This development is a big victory for advocates of gender parity within the AU, as well as scholars and practitioners advocating for gender parity in international courts. The recent election is preceded by the 27th African Union Summit held in July 10-18 2016 in Kigali, Rwanda, during which there were four vacancies to be filled on the ACtHPR. At this meeting, the Assembly of Heads of State and Government of the African Union (AU) elected only two judges who were both women; Justice Ntyam Ondo Mengu from Cameroon and Justice  Marie Thérèse Mukamulisa from Rwanda. The postponement of the election to fill the two vacancies appears to have been a deliberate action on the part of the AU to make good on its gender parity promise by requiring states to nominate and elect female judges as provided for in Article 12(2) and Article 14(3) of the Protocol establishing the court. This brings the total number of women judges to have ever sat on the ACtHPR to eight, representing 34%, out of a total number of 23 judges since the court first got in session in 2006.

For the first time in the history of the court, there will be five women judges sitting concurrently on the eleven-member court. The election of Justice Bensaoula of Algeria is another major milestone as it marks the first time in the history of the court that a woman is represented from the Northern region of the continent. As Osai Ojigho has argued, increasing the number of women judges on the ACtHPR can be achieved if the vacancies are widely advertised, if nomination procedures at the domestic level are transparent and widely publicized, civil society involvement is encouraged, outstanding candidates are sought out and that at least one of three possible nominees is a woman. The recent elections have shown that where there is a will, there is always a way for gender parity. In the note verbale communications sent out to States during vacancies on the court, the Office of the Legal Counsel has consistently asked for the nomination of women. So, what changed this time around? It appears that in the last two elections, a punitive measure was applied whereby states that did not have women were disqualified to run. For scholars concerned with achieving gender egalitarian benches both at the domestic and international levels, the recent election of four women judges to the ACtHPR may provide some glimmers of hope and it is a hope that we need to actualize at other sub-regional courts on the continent.

As I have documented elsewhere, African women judges have, to date, accounted for the largest number of women judges from one geographic region to serve on the ICC. The fact that African women hold this record is indicative that women judges have the right qualifications to fill vacancies on courts at the regional and continental levels—thus the limited pool argument does not hold much sway. The patterns and history behind the growing number of African women judges in international courts, is discussed in the forthcoming volume, “African Women Judges on International Courts: Unveiled Narratives”, (Dawuni, Josephine and Kuenyehia, Akua  Routledge, 2017). As IntLawGrrl Nienke Grossman has suggested, the use of temporary mandatory quotas may be one strategy to increase the number of women on international courts. While temporary quotas may be a good way to expand access for qualified women judges, I do not ascribe to that strategy. As we have seen in the recent elections to the ACtHPR, enforcement of existing provisions for gender parity such as the application of measures to hold States to their obligations may be one strategy to achieve gender parity. It becomes the duty of States Parties to nominate the strongest female candidates. Nonetheless, women judges will also have to be intentional about gaining access to nomination processes and gatekeepers. Preliminary evidence on the record of women’s success at the domestic level in most jurisdictions across the continent as discussed in  Gender and the Judiciary in Africa: From obscurity to parity? strongly indicates that there is a big enough pool of qualified women from which to draw women nominees for international courts. We may also be missing some important factors when we focus only on the numbers. We should ask a couple of questions: first, whether female candidates know about these courts and, second, whether they are interested in positions on these courts? This is where the role of networking and awareness raising becomes crucial in programs such as open dialogues hosted by the Institute for African Women in Law, where former judges Justice Akua Kuenyehia and Justice Sophia Akuffo discussed their experiences on international courts.

Dawuni and Kang have documented the rise of  women judges to the upper echelons of judiciaries across Africa. At the international level, we have seen the record set at the ICC, with African women accounting for 33% of the total number of women (15 to be precise) to serve on the ICC bench. The Economic Community of West African States (ECOWAS) Court of Justice comes has had 29% women representation, the East African Court of Justice comes in at 16% and the African Court of Human and Peoples’ Rights has just moved from hovering around 18% to 45% as currently constituted. African women judges have also made their mark on ad hoc tribunals such as the ICTY, ICTR and SCSL. As the highest-ranking continental court, the ACtHPR has proven once again that where institutional mechanisms are enforced and opportunity structures exist, African women will always rise to the occasion. This is just the beginning and it is the hope that the sub-regional courts such as the ECOWAS Court of Justice and the East African Court of Justice will learn from these new developments. Now is the time to start working towards future elections at the sub-regional levels. Now is the time for Heads of States, civil society organizations and other agencies to nominate women for future elections on the ICC and other international courts and tribunals. Now is the time to sign the pledge on the Gqual Campaign!

 

Race to the top? African women judges and international courts

/ J. Jarpa Dawuni, Ph.D. / Leave a comment

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-Saharan 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, Judge 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 -Judge Julia Sebutinde and the other on the African Court on Human and Peoples’ Rights (ACtHPR).- Judge Solomy Balungi Bossa. Continue reading →