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What Lies Beneath the Complex Nature of Appointing Women Judges in Zambia and South Africa

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What Lies Beneath the Complex Nature of Appointing Women Judges in Zambia and South Africa WHAT LIES BENEATH THE COMPLEX NATURE OF APPOINTING WOMEN JUDGES IN ZAMBIA AND SOUTH AFRICA Tabeth Lynn Masengu Supervisors: Prof. Dr. Eva Brems, Prof. Dr. Hugh Corder (University of Cape Town) A dissertation submitted to Ghent University in fulfilment of the requirements for the degree of Doctor of Laws. Academic year: 2019-2020 ii ABSTRACT Using a socio-legal framework, this thesis addresses the present dearth of research on gender and judging in Africa, by examining the judicial appointment processes in Zambia and South Africa. This study is grounded in the argument that judges, and those who appoint them, are operating in environments where multiple factors can and do have an impact on whether a country is able to successfully create a gender-diverse judiciary. Using a feminist lens, this thesis describes women in terms of gender and explores various facets of the appointment system, in order to respond to the research question. How do aspects of the judicial appointment process inform equal representation of women and men on the bench? Drawing from existing literature on gender and judging, this thesis interrogates particular formal and informal aspects of the appointment process. It highlights the various subtleties that exist within or around these aspects and how they affect women candidates, while appreciating the difficult balance that is involved in selecting judges. In doing so, this thesis affirms the importance of context when studying judicial appointments and seeking solutions for judicial diversity. This thesis additionally reveals various elements of the process affected by bias, discrimination, exclusion, and a traditional definition of merit, that invariably devalues women’s contributions and attributes. This study makes the case for gender diversity not just in the courts but on the judicial appointment bodies that appoint judges. While arguing that one benefit of this diversity would be the presence of more representative perspectives, it acknowledges that a feminist perspective can and should also be held by male judicial appointers. This study makes suggestions for improving the appointment systems in both jurisdictions and emphasises the need for a multi-sector response. *************** iii Deze thesis komt tegemoet aan het huidige gebrek aan onderzoek rond gender en rechtvoering in Afrika, door onderzoek te voeren naar de juridische aanstellingsprocedure in Zambia en Zuid-Afrika vanuit een sociaal-juridisch framework. Deze studie is gebaseerd op het argument dat rechters, en diegenen die hen aanstellen, werken in een omgeving waar meerdere factoren een impact (kunnen) hebben op het vermogen van een land om een gender-diverse rechterlijke macht te creëren. Deze thesis beschrijft vrouwen in de context van gender als sociale constructie en verkent verschillende facetten van het aanstellingssysteem vanuit een feministisch perspectief, om te antwoorden op de onderzoeksvraag: Hoe dragen aspecten van de aanstellingsprocedure bij tot een gelijke vertegenwoordiging van vrouwen en mannen in de rechterlijke macht? Voortbouwend op bestaande literatuur rond gender en justitie, onderzoekt deze thesis in het bijzonder formele en informele aspecten van de aanstellingsprocedure. Het geeft de verschillende subtiliteiten in en rond deze aspecten aan en beschrijft hoe ze vrouwelijke kandidaten beïnvloeden, terwijl de moeilijke balans die gepaard gaat met de selectie van rechters wordt gerespecteerd. Daarbij bevestigt deze thesis het belang van context in onderzoek naar juridische aanstellingen en het zoeken naar oplossingen voor juridische diversiteit. Bijkomend onthult deze thesis verschillende elementen van het proces getroffen door vooroordelen, discriminatie, uitsluiting en een traditionele definitie van verdienste, die onvermijdelijk de vrouwelijk bijdragen en eigenschappen devalueert. Deze studie pleit voor genderdiversiteit, zowel in de rechtbanken als in de juridische aanstellingsorganen die rechters aanstellen. Het argument dat diversiteit leidt tot een grotere vertegenwoordiging van verschillende perspectieven, bevestigt dat het feministische perspectief kan en zou moeten gebruikt worden door mannen bij rechterlijke aanstellingen. Deze studie maakt suggesties om de aanstellingsprocedure in beide rechtsgebieden te verbeteren en benadrukt de noodzaak van een sectoroverschrijdende aanpak. iv ACKNOWLEDGMENTS When I commenced this PhD journey, I asked two judges who had obtained their PhDs for some advice. Both of them made the same statement that stood out to me. ‘A PhD is not a test of your intelligence; it is a test of your psychological strength’! They were not far from the truth as this four year journey has indeed been a test of my psychological strength and will. I didn’t make things easier for myself when I chose to do most of the PhD while in fulltime employment and pursue a joint doctorate degree! As the pioneer joint doctorate candidate in the UCT Law faculty, the collaboration meant twice as much administrative bureaucracy −but still the process had not been as perilous, as I first feared thanks to a number of factors. My Christian faith meant that I knew that there was a higher power assisting me. My belief in God meant that I knew that though this project was important, it did not define me or my purpose on earth. The prayers of my family and friends also helped strengthen my resolve to continue, especially when I faced an unexpected illness that derailed the PhD project for some months. I was also blessed with two supervisors who complimented each other so well. Based in different continents, each with an illustrious career and different interests, I was privileged to have Professors Brems and Corder walk this journey with me. Professor Brems, you were enthusiastic about this venture from the beginning and I would not have gotten the BOF grant without your help. You have always made me believe that I am smarter than I think I am and you have been supportive and caring during the highs and lows experienced in the last two years. I couldn’t have asked for a better supervisor. Professor Corder, despite your intensely busy schedule and my constant problems with putting the comas in the wrong places, you too encouraged me and urged me on. My writing and analysis is much better for having you. Dr Lourdes Peroni, the third member of my guidance committee, I am indebted to you for your assistance, encouragement and time. I am also grateful for the professors who agreed to be part of my exam jury and all the assistance from Doris, Patricia and Lamize at UCT. Professor Caroline Ncube you have been a mentor to me for seven years now and what started as a mentoring relationship grew into a friendship. I am deeply grateful for your prayers, advice, level headedness and calm nature, even during the times when I felt like pulling my hair out. Professor Josephine Dawuni, we were introduced to each other by a woman judge and so many years later we are collaborating on the topic of women judges. I owe you thanks for the many conversations we had about my PhD and our past collaborations that infused me with a desire to make a contribution. I am also excited about our future collaborations because we share the same passion for ensuring that the narratives of African women in law are told, heard and chronicled. Gratitude is also expressed to the interview participants from all four pools and all the people in both the Zambian and South African judiciary who made everything possible. Without your cooperation and input, this work would not have been possible. To the staff at the University v of Zambia Law school, those in the Supreme Court, especially Janet Ilunga, Mr Pengele and the registrars who assisted me, zikomo! To the members of the South African Chapter of the International Association of Women Judges, who never wavered in their assistance, ngiyabonga khakulu! I want to especially thank Justices Connie Mocumie, Mandisa Maya, Dunstan Mlambo, Frans Kgomo and Kate Savage for your willingness to engage in DGRU work and my research interests over the years. Whether it was statistics, questions about appointments or support for the women mentorship project, you were always willing to help. For my former colleagues at UCT, you were instrumental in this journey. Vanja Karth and Chris Oxtoby, it was a great pleasure working with you and I am grateful for all your support, encouragement, insight, information and discussions during this journey. I am appreciative of other DGRU members who I have worked with over the years. Rudo Chitapi, you are the best team member one could wish for. Your assistance in all the projects we were worked on together was invaluable. In this project, your editorial assistance is second to none! You too make me feel that I am an amazing researcher. Professors Moult and Smythe, thank you for setting up the PhD seminars where I was able to learn, share and gain wisdom. I have also been blessed with brilliant friends across the globe who have equally supported and natured me. They are some of the best cheerleaders, a person could ever have. Thabi Chanetsa my fellow pea in the pod, the woman who thinks like I do. You are an ever present friend in time of need. Precillar Moyo, you are a constant pillar in my life and a loyal friend, Dr Mwenya Mubanga an adviser, big sister and prayer warrior. Carina Pillay, yours is a friendship that lasts a lifetime and your generosity knows no bounds. Yaliwe Clarke, my fellow Zambian feminist, laughing enthusiast and spot of sunshine. May our dreams and visions for a better world come to fruition. Ruth Nekura you have been a constant inspiration and adviser during both our journeys and Wami Kolawole, my little brother, you too have been a blessing. I am excited that you are at the end of your PhD journey too. My other friends, Abigail, Blessing, Jane Kgorane, Nokwanda, Nyasha Karimakwenda, Sindiso and others I may have forgotten, I appreciate your presence during my journey, in all facets.
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