Africa's top judges reaffirm gender equality resolutions

The second High-level Meeting of Women Judicial Leaders of Africa closed with what SA's Chief Justice Mandisa Maya described as a ‘transformative odyssey of judicial solidarity’ by adopting the Johannesburg Declaration. Legalbrief Africa reports that the declaration contained a set of resolutions aimed at consolidating and deepening the 2003 Maputo Protocol’s progressive framework to address gender inequality among judiciaries and in broader society, and pledged to contribute to the continued development of a distinctly African, rights-based, gender-responsive jurisprudence. Supreme Court of Appeal President Mahube Molemela noted the importance of this ‘action plan’ during the session to adopt the resolutions: ‘Future generations will judge us not on what we said, but what we did.’ To address the scourge of gender-based violence that is rampant across the continent, the gathering reiterated the call for a ‘rights-based, victim-centred, and gender-responsive approach to adjudication in all matters involving violence and harassment against women, ensuring recognition of lived realities, structural inequality, and the need to reject patriarchal stereotypes and harmful norms’.

Another resolution, noting the need for legal reform and the improvement of access to justice for women, children and other vulnerable groups, sought to encourage participating jurisdictions ‘to capacitate their respective judiciaries to reinforce legal and institutional responses to violence against women. This includes addressing legislative gaps relating to femicide, emotional, economic psychological abuse, sexual harassment, and other forms of gender-based violence, while enhancing victim-friendly justice mechanisms, access to legal aid, protection of vulnerable witnesses, and improved access to justice in rural and under-served communities.’ On the relationship between economic justice and women’s empowerment, the gathering resolved to ‘reaffirm’ economic justice as ‘a core component of substantive gender equality’ because ‘women’s effective participation in economic and social life requires real and equal access to property, inheritance, housing, employment, credit, and other productive resources’. It also affirmed ‘the central role of courts’ in advancing women’s economic empowerment through the interpretation and application of the law ‘in a manner that protects equality, dignity, autonomy, and economic independence'. The gathering also recognised ‘the economic value of women’s unpaid and indirect contributions within households and families’ and encouraged ‘judicial approaches that take such contributions into account in the equitable division of matrimonial property and related disputes’. Women’s exclusion from inheritance and property rights, mainly through the application of patriarchal traditional beliefs and practices was a challenge which popped up regularly during the four-day meeting.

Another resolution on environmental justice noted that ‘environmental harm is not gender-neutral and disproportionately affects women, particularly poor and rural women, caregivers, and those in pollution-affected or resource-dependent communities, as well as other vulnerable groups.’ Affirming the central role of courts in advancing gender-responsive environmental justice by interpreting and applying constitutional, statutory, and customary law in a manner that protects women’s environmental rights’, another resolution encouraged courts to ‘adopt context-sensitive approaches’ that consider ‘customary law, indigenous knowledge systems, cultural practices, and the lived realities of affected communities, consistent with constitutional and human rights norms’. Africa’s leading female jurists were firm in their calls for further transformation of the continent’s various judiciaries to ensure greater female representation, especially in leadership roles. The meeting resolved to urge ‘judicial and other state institutions to adopt fair and transparent appointment and promotion processes’, remove formal and informal barriers to women progressing within the judiciary and to eradicate ‘structural bias and discriminatory practices’ that create a glass ceiling for female judges.

Taking up SA's provincial Judge President Thoba Poyo-Dlwati’s call to ‘speak from the heart’, the interactive session on leadership for female judicial officers led to one of the most powerful and poignant discussions, notes Legalbrief Africa. Senior judges, including Mozambique’s Constitutional Council President Lucia da Luz Ribeiro and Nigeria’s Chief Justice Kuriday Kekere-Ekun spoke especially powerfully about the challenges they faced during their career, the hard victories they had won, and where they found mentorship and inspiration to keep plugging away in a male-dominated space. Kekere-Ekun addressed the ‘mentorship from afar’ she felt when inspired by Nigeria’s first female Chief Justice Aloma Mariam Mukhtar who had served in that position from July 2012 to November 2014 – because she was a ‘woman of so many firsts’ in the judiciary. From the floor, a judge from Liberia described how she derived career mentorship and inspiration from my ‘extreme fear of poverty, because I grew up in abject poverty’. ‘The fear of sleeping hungry every day of the year is what really propels me. The thought of sleeping hungry has been a great motivation for me. I was the first from my high school to get a Masters degree, the first in family to get a degree,’ she said.

'I suspect that I speak for most if not all of us out there when I say its very hard making it as a jurist and the Bench is a lonely space,' said Chief Justice Maya. She recalled acting at the Western Cape High Court at the tender age of 35 and being taken under the wing of Judge Jeanette Traverso, who would go on to head that division in later years. She said Traverso had allocated the judgment writing after an appeal hearing: 'She (Traverso) said "I’m going to help you write a reported judgment" and she took me through the paces. That show of support and her just popping her head into my chambers in the morning to make sure I was okay – that was immense,' said Maya of her own development.

‘Artificial Intelligence (AI) and digital technologies have opened new forms of harm, amplifying harassment, abuse and stalking, exponentially extending the negative impact of sophisticated deepfakes and automated bot networks which can be weaponised, especially against women...,’ newly appointed SA Constitutional Court Justice Kate Savage noted. Legalbrief reports that Savage, who will take up her position on 1 May, was chairing a session dealing with Artificial Intelligence, The Digital Frontier and Women’s Rights. Savage reminded the gathering of high-ranking jurists that ‘few women are architects of AI systems around the world’ and that while the data-sets currently being used were ‘vast’, they were still dominated by information from the US, Canada and Europe. These biases, she said, meant that current AI programmes were not sensitive to local nuances and practices, especially from the global South, and ignored their revised histories and data sets. ‘Online digital technology and AI are not neutral spaces. AI models are trained on vast datasets that reflect historical prejudices. They mirror the disparities and challenges that exist in society and continue to reflect patterns of historical inequality,’ said Savage. This trend, Savage continued, posed the danger of entrenching inequalities and marginalisation of women, children and indigenous communities who have been negatively impacted by structural patriarchy for centuries – and their abuse.

This view was shared by Eunice Smith, the head of the Unesco Office in Namibia, who pointed out that one in three women worldwide will experience physical or sexual violence in their lifetime. ‘With the development of AI and tech this staggering number is set too grow,’ warned Smith, who added that ‘without safeguards AI can industrialise violence against women. It is essential that judicial leaders such as yourself set the boundaries.’ Legalbrief notes that Smith highlighted several violent online trends already affecting women, and female judges even. These included AI-produced deep fakes, unsolicited pictures of women being spread on the Internet without consent, slut-shaming, the use of chat-bots to simulate or give instruction on rape. These she said disproportionally impacted on black, brown and indigenous women, and members of LGBTQI community. Mozambican Constitutional Council President Lucia da Cruz Ribeiro said female jurists needed to be aware of the social and psychological consequences of these crimes and ensure support for victims: 'The consequences are far beyond the digital; this is about everyday violence because out does not end online, women experience a loss of control off their images which result in mental health issues.’ Some of the solutions the discussion focused on including the approval of clear legislation that go beyond the current frontiers of domestic violence, more education in communities about these crimes, the treatment if digital rights as human rights, the strengthening of reporting mechanism for such crimes and more social support groups for survivors of such crimes.

At the opening of the conference, Maya issued a clarion call to leading African female jurists to address the ‘huge gap’ that exists ‘between the enshrined rights and the lived reality of millions of women across the continent’. Legalbrief Africa reports that she was delivering the keynote address at the official opening of the four-day conference which brought together female Chief Justices, Court Presidents and other senior judges from around the continent under the theme ’The Maputo Protocol @ 20: Consolidating the Jurisprudence of Equality for the Next Generation’. The Maputo Protocol – formally known as the African Charter on Human and People’s Rights on the Rights of Women in Africa – was adopted by the AU in 2003 and is a legally binding treaty ensuring comprehensive rights for women and girls. Lauded as a progressive human rights instrument, it seeks to achieve gender equality in political and judicial spheres, address gendered economic inequality, ensure the reproductive health rights of women and seeks to end gender-based violence, femicide and female genital mutilation. It also asserts a legal obligation on states to take legislative and policy measures to ensure the protection of women and address gender inequality in society.

Maya urged delegates to ensure that the ‘gathering transcends reflection to produce enduring tools in the form of the Johannesburg Declaration, a 'Five-Year Action Plan’ to address inequality on the Bench, but also in broader society through sharing of experiences to enrich judgments. Reflecting on violence against women across the continent, she revealed alarming figures to underline the urgency of the gathering’s resolutions. Figures she noted included domestic violence affecting 33% of women in Sub-Saharan Africa, femicide claiming 15 lives daily in SA alone, the persistence of female genital mutilation in at least 28 countries, with a 98% prevalence in Somalia, and that conflict zones like eastern DRC report child rapes half hourly. These figures, she said, were exacerbated by ‘under reporting due to stigma, weak enforcement, cultural stereotypes, and resource shortages’. ‘Climate change projections threaten to triple intimate partner violence victims to 140m by 2060, while economic barriers trap women in poverty,’ said Maya. Describing the first high-level meeting on Libreville, Gabon in 2023 as ‘nothing short of a continental milestone’, Maya said there was still much work to be done. ‘Despite the equality mandate in Article 8(e) of the Maputo Protocol calling for equal representation of women in the judiciary ... gender parity continues to lag significantly in African judicial systems,’ she said. ‘The barriers (in judicial systems) which persist include deeply rooted cultural and religious stereotypes, flaws in selection and recruitment processes despite commitments, common law impartiality gaps, absent or inadequate gender-sensitive institutional policies, mentorship voids, and judges' realities of discrimination, bullying and harassment, threats, work-life balance strains,’ said Maya.

The Chief Justice also underlined the importance of mental and physical care, especially since female jurists also have to deal with additional ‘psychological burdens, gender-specific pressures, and sustainability challenges that threaten our longevity on the Bench and beyond’. SA's Justice Minister Mmamoloko Kubayi and Speaker of the National Assembly, Thoko Didiza had preceded Maya to the podium with messages of support. Didiza recalled how the female activists had strong-armed their way into the the post-apartheid negotiations at the Convention for a Democratic SA in 1991-92 to win the inclusion of the equality clause in SA’s Constitution. Their activism, she said, ‘changed the (male-dominated) landscape of the negotiations and underlined the political sentiment of ‘nothing about us, without us’.

The reality of abuse that women and children on the African continent face was brought into sharp focus during a session focusing on adjudicating violence and harassment against women, notes Legalbrief Africa. Chairing the session, Lucia da Luz Ribiero, the President of the Constitutional Court of Mozambique, said that the gathering needed to ‘ask ourselves why does violence against women continue at unacceptable levels’ on the continent despite progressive legislation and protocols which legally bind countries and their institutions. Justice Ourdia Nait Kaci of the Constitutional Court of Algeria noted that in her country, legislative reform recognised for the ‘first time’ that psychological violence – ‘the wound that cannot be seen’ – was a crime. She said it was imperative that gender-based violence in all forms had to be eradicated so that women were liberated to play their role in society: ‘The safety of women in their work, home, in the street must be assured’ through strict laws and penalties which ‘could not be misinterpreted’, said Kaci. She also observed that the digital space was not safe for women who endure online stalking, abuse and surveillance. Abuse could also include digitally enhanced photos and video of women which sought to shame them, especially if they assumed a pornographic nature.

Justice Antonia Guvava of the Supreme Court of Zimbabwe noted that femicide was not recognised in Zimbabwe law as a separate offence but rather characterised and adjudicated under murder or culpable homicide because her country’s ‘Domestic Violence Act does not recognise sexual and psychological abuse’. She said this needed to change. Citing recent case-law, Justice Zukisa Tshiqi of the Constitutional Court of SA said jurists could find that pre-colonial norms, such as the women retaining their clan names, could lead to the further empowerment of women. During a session exploring Economic Justice and Women’s Empowerment, the Angola Constitutional Court Vice-President Victoria Izata observed that this tension adversely affected the autonomy of women and children with regard to practices like child marriages and the patrimonial exclusions of women from inheriting property and assets. Izata urged government, judicial institutions and social actors to come together to transform gender and property rights and pointed out judges’ ‘constitutional mandate to transform discriminatory traditional practice’. Deputy Chief Justice of the Zimbabwe Supreme Court, Elizabeth Gwaunza echoed the judges’ ‘interpretive responsibility to harmonise constitutional law with customary law’. ‘Economic empowerment is linked to economic empowerment. Economic justice is one of the primary routes that allows for economic empowerment of women,’ she said. The session was chaired by the Chief Justice of Nigeria Constitutional Court, Kudirat Kekere-Ekun.