South Africa has been given a lot to talk about following day one of the Judicial Service Commission (JSC) interviews for the position of Chief Justice of the Republic of South Africa, with Constitutional Court Justice Mbuyiseli Madlanga being the first candidate to be interviewed, and the interview of Supreme Court of Appeal President Mandisa Maya on day two.

There are different opinions and dissenting views as to how the JSC process of interviewing hopefuls for the country’s next Chief Justice has unfolded so far. From the objections raised against the participation of politicians in the process, to issues of transformation, the country has been given food for thought. 

I would like to zoom in to the questions on transformation and diversity on the Bench, and in particular the question: Is South Africa ready for the appointment of a woman Chief Justice?

 “I do not think it is a proper question to ask because it implies all sorts of negative things. But the short answer is South Africa has always been ready to have a female Chief Justice at inception,” replied Maya when asked.

Regrettably, the question of whether South Africa is ready for the appointment of a woman Chief Justice has exposed to the world how backward we are as a country when it comes to the transformation of the legal profession, gender sensitivity, parity and representation in general in many organisations and institutions.

In my view, it is such questions that embolden opinions that the predominance of the leadership of male judges in the courts is the best and preferred character of the South African judiciary.

In brief, this question is very offensive on many fronts.

First, the question puts on the pedestal patriarchy and male domination of positions in the judiciary.

Second, the question fails to appreciate and acknowledge the stark gender unevenness in the South African judiciary, in which women always have to play catch-up to their male counterparts.

Third, an impression is created that women do not belong in the judiciary and that the country is suspicious of women leading the judiciary as Chief Justice – now or in the future. 

Fourth, the question indirectly says that South Africa does not support women’s leadership. 

Finally, such a question – ask male or female candidates – makes the current judicial appointment processes less fair, non-meritocratic and discriminatory. In its crudest form, the question is akin to micro-aggression against women judges, reflective of a society that pays lip service to act against gender-based violence. 

If the JSC wanted to ask questions about transformation and representation on the Bench or to enter a discourse on the issue, the question could have been asked differently in an acceptable manner.

For instance:

Why should we want a more diverse judiciary? What can be done to increase the democratic and gender legitimacy of the judiciary in South Africa towards building a judiciary that is more representative of the wider society which it serves? What plans do you have to ensure that there is progress and success in challenging the perception that inclusion implies a redistribution in which South African women judges take from their male counterparts what women do not deserve?

The persistent systematic tendency of frowning upon gender parity and leadership of women in courts should not be normalised. The JSC, in particular, must be the last platform to create an impression that this is normal.

While a country that is touted as Africa’s leader in a constitutional democracy is preoccupied with questioning the rationality of having a female Chief Justice, other countries in Africa are taking or have long taken the lead in appointing constitutional court women chief justices or presidents.

For example: Conceptia Denis Ouinsou in Benin (1998-2008), Aloysie Cyanzayire in Rwanda (2004-14), Nthomeng Majara in Lesotho (2014-2019), Manassa Danioko in Mali (2015-2020), Maria de Fátima Coronel in Cape Verde (2015), Hildah Chibomba in Zambia (2016), Nemat Khair in Sudan (2019) and Lúcia da Luz Ribeiro in Mozambique (2019).

African women are ready to lead, but apparently not in South Africa, if the question at the JSC is anything to be concerned about. For those interested in development in judicial leadership in Africa by women, read an academic article titled Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa.

“Gender-sensitive laws and constitutions do not appear to have been an antidote for gender disparities in the judiciary. In South Africa, despite the provision in the 1996 Constitution that gender should be taken into consideration when making appointments to judicial office, the record has yet to fulfil the promise of the law,” the article sadly noted [p.59].

While others are prepared to pay lip service to the Constitution, men and women who genuinely believe in the spirit and the letter of the Constitution must not give in to Gender Transformation Battle Fatigue (GTBF). DM