Lack of Transformation in Judiciary; African Commission on Human and People’s Rights: CGE reports

Meeting report

Lack of Transformation in the Judiciary: CGE Investigative Report 2016
Commissioner Lulama Nare, Commission on Gender Equality (CGE) Chairperson, cited the Constitution’s section 174 on the appointment of judicial officers. She said CGE is currently involved in discussions with universities to assess their gender transformation and said that the Free State and Stellenbosch universities were currently meeting CGE in Johannesburg.

Ms Keketso Maema, CGE CEO, in her introduction said the purpose of the briefing is to illustrate CGE’s progress and to highlight current engagements of the CGE to the Portfolio Committee.  She referred to the gender transformation hearings underway and their focus on getting accounting authorities to account for transformation in the work space and assess compliance with gender-related legislation and policies. These hearings will consider if there are measures in place to ensure that women and disabled persons are included in decision making positions.

Ms Maema commenced her presentation by stating that the judiciary, as part of the bigger legal fraternity, is not immune from patriarchal manifestations, such as a patriarchal approach to appointments or prevalence of sexual harassment. She noted the importance of support structures, of which CGE is one. Gender transformation in the judiciary requires more than getting women into seats.

A complaint was lodged with CGE by the Democratic Governance and Rights Unit (UCT) and Sonke Justice Network in 2012 about the lack of gender transformation in the judiciary despite Section 174(2) in the Constitution: . "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed". This complaint resulted in an investigative report and its accompanying recommendations were meant for implementation in the 2017/18 period.

The institutional analysis of gender transformation in the judiciary found that women are not adequately represented in the judiciary and meaningful transformation has been slow within the legal profession. The CGE found that gender composition transformation has not been as positive as racial transformation in the judiciary.

This investigative report was the final stage of the legal complaint process. Key findings emphasise the need to change the judiciary’s institutional culture and the transformation of the legal fraternity beyond numbers to include substantive versus formal equality, sexist perceptions and behaviours, advancing experience and exposure opportunities for women, training and mentoring interventions for aspirant female judges, quota for briefings for women at the Bar, support for females such as childcare facilities and sexual harassment, and intervention in the Judicial Service Commission (JSC) and Acting Judges’ appointment processes.

The CGE recommended getting an appropriate policy framework in place. Within the framework, clear criteria - and perhaps quota - must be put in place for nominations /shortlisting of judges and acting judges, as well as transparency measures for their selection and appointment. It suggested the rejection of acting judge lists that do not include 50% women candidates and the JSC member profile should be 50% women.

Ms Maema outlined the progress made towards improving gender transformation in the judiciary since 2012: increase in number of women appointed to judicial positions, adoption of criteria for the appointment of Acting Judges by Heads of Court in April 2016, increased nomination and formal support of female applicants for judicial vacancies by the CGE, observation and monitoring of the JSC interview processes of judicial officers and various prompts made by the finalisation of the investigative report.

A few statistics were provided: gender representation in the judiciary indicated that 65% of the judiciary remains male and 35% female; at the Bar, 73% were male advocates and 27% female.

CGE has been disappointed at the Ministry of Justice’s lack of response to its plethora of correspondence seeking a meeting to discuss the complaint and the recommendations. The President formally advised the Commission to liaise with the Minister of Justice and the Minister in the Presidency: Women. The CGE has requested a meeting with them for November 2017.

The CGE has also intervened in the form of a discussion document (to be published end of December 2017). It will provide more information to the Committee about the National Summit after meeting with the Ministers, it continues to nominate women to the JSC, observe judicial interviews and engage in discussions with the Magistrates Commission. A collective approach is required but CGE is committed to persistently pursuing its goals.

African Commission on Human and People’s Rights 2016 Sessions: CGE report
Mr Kamraj Anirudhra, CGE Head of Parliamentary Liaison Unit, reported on the 58th and 59th sessions of the African Commission on Human and People’s Rights (ACHPR) held in the Republic of Gambia in April and October 2016 to which South Africa has an obligation to periodically report on its progress. CGE has the mandate to monitor South Africa’s compliance with international conventions. It is therefore important for the CGE to participate at these platforms. CGE is monitoring the implementation of the African Charter of Human and People’s Rights and the Maputo Protocol. He provided feedback on CGE observations during these two sessions and identified matters of interest.

Mr Anirudhra said South Africa is not paying enough attention to its international obligations and recalled the President asking the Department of Justice and Constitutional Development to address this problem.

Focusing on the 58th session where a progress report was presented by the South African government, Mr Anirudhra said that the ACHPR was pleased at the presence of the South African delegation. It was pleased with ‘numerous aspects' of the report: South Africa ratifying over sixteen international instruments and numerous pieces of legislation that South Africa had developed, from the Sexual Offences Act, the Civil Union Act, and so forth. South Africa also impressed in the areas of economic, social, health care and human righ ts. The Commission commended South Africa on the protection of women and children’s rights and care centres.

CGE is monitoring eleven aspects In line with the ACHPR Concluding Observations and Recommendations, which include:
• Right to education: gender transformation in tertiary institutions
• Right to culture: monitor the Traditional and Khoisan Bill to ensure its constitutionality on gender.
• Women and children’s rights
• Right to health: maternal health systemic investigation
• Right to employment: gender transformation
• Extractive industries: monitoring gender mainstreaming.

CGE found that women face a number of challenges in the mining sectors, especially as they do not reach management level which is a male dominated sector. The CGE advises looking at recruitment policies and draw lessons from other mining companies. Women and people with disabilities need to be attracted to the sector. Another concern raised by the Commission, was reservations signed by South Africa in 2007, upon signing the Maputo Protocol, which CGE found no need for. The CGE had written to the Department of Justice about this matter.

To conclude, Mr Anirudhra went through overall recommendations for CGE based on the Banjul sessions:
• CGE should incorporate Agenda 2063, SDGs, the African Women’s Decade, and 2016 African Year of Human Rights with a focus on the rights of women in its plans.
• Focus attention on participation of women in mining industry, oil and gas, infrastructure development, ITC and blue economy.
• Impact of illicit spending on women is an area for research and intervention.
• CGE must use its constitutional powers to enforce gender policy compliance in public and private sectors.
• CGE raise awareness on gender policies in the mining sector. 

Discussion
Ms T Stander (DA) asked about transformation in the judiciary and the complaint that there are not women to employ, whether CGE had looked at the number of female law students and graduates, particularly black female students. She asked if CGE been involved in the Civil Union Act to see how it can be improved to protect the rights of vulnerable women such as widowed women in rural areas and Muslim divorcees. She advised it would be more practical to conduct general investigations instead of sector by sector, which take too long, as the same concerns apply to all sectors. This way, common factors across sectors could be identified.

Ms M Chueu (ANC) referred to page six of the CGE Report compiled on the 58th and 59th sessions which stated that the SA Country Report to the ACHPR reported under “Education” that “significant steps” were made, asking for clarity on which steps were taken. She contested the progress reported in Water and sanitation and sections discussing equality courts, land ownership. She requested that the content of reports be discussed to formulate policies, not merely assess compliance.

Ms M Khawula (EFF) asked why female students who study law fail and is CGE able to address this and encourage female learners to study law.

Ms P Bhengu (ANC) asked CGE to report if people in rural areas have the qualifications to handle legal cases, as in some areas, traditional leaders handle cases, resulting in people having to pay fines. The level of education in urban areas differs to that in rural areas. Is the girl child in the rural area getting the same education as the one in the urban area?

Ms Khawula echoed Ms Bhengu’s sentiments about rural areas. She pointed out the need to protect pensioners in rural areas. When the izinDuna, traditional leaders and advisors order them to pay a fine in cases involving pensioners, are expected to pay fines and, if they cannot, they must pay with their livestock. No considerations have been made to safeguard women, especially widows, who go without provision and often times must get remarried. She suggested that the Department meet with the Department of Cooperative Governance and Traditional Affairs (COGTA). She also raised a concern about the requirement to provide proof of residence before bringing a matter to a court.

Commissioner Nare responded by referring to the presentation and recalling the complaint about female candidates in the judiciary and gender discrimination. CGE launched a thorough investigation and sought practical information to map a response to the complaint, which had been brought to Parliament as a matter of concern. On traditional courts, she said that the Traditional Courts Bill is coming back to Parliament and assured the Committee that CGE would look into this.

She replied that what was reported to ACHPR, is what was published by government in its Country Report to the ACHPR. She urged the Committee to bring shadow findings to CGE for incorporation into its reports. CGE uses a standard questionnaire, quantitative and qualitative in nature, when assessing gender transformation at institutions, along with measuring the gender component of the Employment Equity Act. She cited statistics from the South African Law Society Statistics for the legal profession that includes the number of male and female graduates and admitted attorneys.

Commissioner Mbuyiselo Botha emphasised that success rates in rural and urban areas differ and added that there has been improvement in access to basic services. He addressed Ms Khawula’s concerns by stating that the system itself is antagonistic to women, since gatekeepers are still men and suggested that the Departments of Women and Higher Education engage. Appointments need to be monitored, as this is where perceptions and principles are practiced.

Ms Kerry Anne Oosthuysen, CGE Legal Officer/Advisor, referred to the legal profession statistics and pointed out that the issue is not with the qualification of women but what happens after appointment. She emphasised that complex and interrelated factors challenge face female lawyers, such as late nights, social responsibilities of child care, unwritten rules and so forth. The discussion document is meant to spark engagement and it raised the budgetary expenditure of the Department of Justice, which shows that R781 million has been spent on briefing advocates to appear in courts on state’s behalf.

Ms Oosthuysen highlighted the role of CGE in the Civil Union Act and reminded the Committee that CGE is a friend of the court when it comes to safeguarding the rights of Muslim women.

Mr Anirudhra, touching on customary marriages, cited cases in which CGE was involved, where the Constitutional Court made rulings and told Home Affairs to inform women of their rights. The Constitutional Court ruled for a duty of care of dependents. He acknowledged confusion around cohabitation.

Ms Bhengu asked CGE if they have met with Minister of Women in the Presidency, Susan Shabangu. Does the Minister not want to meet with CGE and does the Minister read these reports?

Commissioner Nare confirmed that CGE has subpoenaed COGTA and cited a case where a woman was fined. The woman lodged a complaint with CGE to reverse the traditional leader’s decision. Acknowledging the call to do more work in rural areas, she suggested that, perhaps, Committee members could join in on those activities.

The Chairperson raised the traditional courts where women not being allowed to speak for themselves and requested that CGE address this.

Commissioner Nare responded that women themselves have expressed this to their traditional leaders, saying that women are informed and they have confronted their traditional leaders, especially in Limpopo. She reminded the Committee of the third wave feminism at play.

Commissioner Botha added that the Magistrates Commission has asked CGE to participate in processes and it asked the Committee to envisage the potential of what could be achieved if CGE could inform processes and be involved in handling cases.

Ms Khawula added to the discussion in isiXhosa.

Commissioner Nare replied that their legal team can handle the matter, asked that they engage after the meeting and requested the exact details of the matter raised by Ms Khawula.

Mr M Dirks (ANC) asked about the responses CGE receives from the Department and if the Committee could obtain these responses.

Ms Chueu enquired about the progress of the National Gender Policy Framework? Returning to the admission of females to the Law Society, she commented that there are not many female members. The structural challenge of the law sector needs to be challenged, such as working hours for female lawyers. She asked about separating criminals in jail according to petty crime and hardcore offences. She stated that the women who benefit from the policies have the responsibility to pull others up too and women need to stop oppressing women.

Ms D Robinson (DA) agreed that it would be useful to join CGE at the JSC hearings on the appointment of judges and asked that invitation be extended to members individually, not merely to the whip or management. She expressed concern that Committee meetings are not open enough and that MPs be allowed to attend as individuals in their own capacity, not as members of the Portfolio Committee.

The Chairperson responded that all committee members receive invitations and asked that those who invite the Committee follow protocol. The Committee should not be segregated and should appear as unit.

Ms Maema referred the Investigative Report’s annexures and pointed out that these were the letters, therefore, they illustrate the interactions between the two Departments and the CGE.

Commissioner Nare added that departments are not responsive. The CGE last met with the Minister of Women in the Presidency two years ago and has had one meeting with her in 2017. Currently, the Minister has said that she is still reviewing the National Gender Framework. Gender violence has to be a national priority, but the Department merely regards it as a challenge instead of a crisis.

Commissioner Nare believes that CGE has provided a platform to talk about gender violence, yet the Minister is also engaging with communities in dialogue. She commented that there is a lack of clarity from the Women’s Ministry and that government puts pressure on the ministry. However, CGE is determined to fulfil its role as watchdog and has subpoenaed the Women’s Ministry.

Ms Chueu emphasised that the difference between the Women’s Ministry and CGE is unclear; commenting that CGE is meant to monitor gender issues and the ministry is meant to work for women and ensure that all departments mainstream gender. CGE must monitor all departments to determine whether they are in line with the National Gender Framework. Therefore, the CGE Chairperson must be able to subpoena the Minister without delay and report to Parliament.

Ms Stander emphasised that the Committee has the power to summon the Minister to the Portfolio Committee, and suggested that the Minister should be invited to all Committee meetings. She recalled a previous request for a response to the Auditor General’s audit findings and the Committee recommendations that can be submitted to the Women’s Ministry. She requested that the Committee support the request to prepare this list for the next meeting.

Mr Dirks suggested that the Committee consider if it wants to take drastic action towards the Minister.

Ms Bhengu highlighted the duplication of work between CGE and the Department. She commented that the Department does not provide adequate feedback and does not address these recommendations. She suggested that the Minister be asked to report on how the Department is collaborating with others. She encouraged CGE to continue its good work.

Mr Dirks acknowledged the work of CGE and requested minutes of previous meetings so that the Committee could offer meaningful assistance to CGE and offer effective oversight.

The Chairperson confirmed that minutes are distributed and said she would ensure that Mr Dirks receive those which he does not have. Ms Bhengu and Ms Chueu’s contributions were valuable. She concluded that the Committee has done all that it can. She wondered if it is time to go to the President.

The meeting was adjourned.