Category: Opinions Written by The Nation Mirror Admin
Kuyang Harriet Logo Mulukwat
The Judiciary is dominated by men and features a handful of women at the lower county Courts. Article 123(6) of the Transitional Constitution of South Sudan provides for a substantial representation of women in the Judiciary having regard to competence, integrity, credibility and impartiality. The selection processes have not met the constitutional provision and fails to practically translate article 123(6).
The author sets out to analyze the reasons why this requirement has not been met, while offering the benefits of appointing a substantial number of women to the Judiciary to reflect the existence of a 60% female population, the wealth of experiences that women Judges would bring to the bench; and the overall improvement of the quality of justice and respect of the outcomes of cases.
A study of customary law in South Sudan commissioned by World Vision International emphasized the fact that the traditional systems of life place value on women similar to that of property. Women are placed at the bottom of hierarchies of familial ties. Payment of bride price finalizes a woman’s transferability from one family to another during marriage and cements her continued subjugation. Customary laws and practices have transformed over time, but their effect on the status of women is viewed as repugnant and clamors for change. Part of the culture tolerates violence against women, while providing no viable options for access to justice. The Ministry of Gender, Child and Social Welfare emphasizes that violence against women is one of the major contributing obstacles to the country’s development. Corrective measures taken by the Ministry have not yielded much difference in the way that women are treated. The practice is deeply entrenched in societal norms.
The reasons behind the situation are further compounded by the fact that; the female lawyers in South Sudan received their legal education in Sudan, a country which embraces a civil law system and Sharia offered in the Arabic language. This constitutes a huge barrier and deterrent to their participation, which leaves only a handful of common law trained female lawyers, desirable for the new legal system adopted. Secondly, the legal profession has been traditionally dominated by men; therefore it is no surprise that the key institutions of the rule of law – the Judiciary and the Ministry of Justice are dominated by men, creating an environment that is uncomfortable for women and creates an eminent fear of domination. Young women have no role models and are not inspired to be a part of the Judiciary. The general perception is that law is a profession for men and not for women. Young girls hardly see women in the legal profession or in the Judiciary; therefore they tend to overlook the importance of the legal profession.
Clearly provisions of article 123(6) of the Transitional Constitution had not been met, when it came to the issue of appointing a substantial number of female judges. The Ministry of Justice on the other hand, appointed good number female legal counsels from 2006 to date. The contrast of the two institutions in appointing females is visible. Article 124, in its entirety provides for the structure of the Judiciary from the Supreme Court to the level of the County Courts. Yet, women are not in any of the highest courts. They were appointed at the level of the lowest courts.
Other than the issues of having a substantial number of women on the bench, questions as to whether women Judges do judge differently have arisen. While the general consensus is, that wouldn’t necessarily be the case; there are specific instances where the gender of a Judge might influence the outcome of a ruling. Some legal scholars have claimed that there is a feminine jurisprudence that is apparent even among relatively conservative female Judges such as former Justice Sandra O’Conner (USA).
The asserted feminine jurisprudence is characterized by a focus on responsibility and human interdependence and reflects understanding of gender discrimination. The debate still rages on – whether female judges decide differently. O’Conner, the first women to serve on the Supreme Court in the USA, is often quoted as saying “that a wise female judge will come to the same conclusion as a wise male judge.” But the opposing argument was bolstered forcefully in April, 2009 by Justice Ruth Bader Ginsburg, in Safford Unified School District et al V Savana Redding, a case in which a thirteen year old girl had been strip searched at school by the authorities on suspicion of hiding some Ibrufen pills that may have been bought over the counter. Justice Ginsberg was quoted to have said of her eight male colleagues
“They have never been a 13 year old girl. It is a very sensitive age for a girl. I did not think that my colleagues, some of them quite understood “
The author is a South Sudanese lawyer and senior Consultant, a continuing legal scholar and writer on Democratic Governance and the Rule of Law and lectures at the College of Law, Juba University on a part time basis.