Fahamu (Oxford)

Africa: In Pursuit of Gender Parity At the African Court

opinion

Positive and decisive acts are required to ensure effective promotion of gender equality in the composition of judges of the African Court.

INTRODUCTION

African Union (AU) leaders committed to the gender parity principle in July 2002 at the first session of the AU Assembly of Heads of State and Government. [1] Ten years since then, the African Court on Human and People' rights - a continental court for the protection of human rights in Africa - is yet to obtain gender parity in the membership of judges of the Court. Since the first elections of the Court in January 2006 till date, there have been only two female judges compared to nine male judges in the eleven-member Court. [2]

GENDER EQUALITY AND THE AU

The transition from OAU (Organisation of African Unity) to African Union (AU) [3] offered an opportunity for the number one continental body in Africa to incorporate the promotion of gender equality as one of its guiding principles as contained in Article 4(l) of the Constitutive Act of the AU. [4] By July 2004, African heads of state and government agreed to the Solemn Declaration on Gender Equality in Africa (SDGEA). [5] Article 6 of the SDGEA provides that African governments shall 'expand and promote the gender parity principle' already adopted for the African Union Commission to all organs of the African Union, the NEPAD (New Partnership for Africa's Development), the Regional Economic Communities, national and local bodies in all countries.

The Protocol to the African Charter on Human and Peoples' Right on the Rights of Women in Africa (that is, African Women's Rights protocol) [6] was adopted in July 2003 and came into force November 2005. The African Women's Rights protocol provides for equal representation of women in the judiciary and law enforcement organs; [7] It demands for women to be active participants in governance and progressively included at all levels of decision-making; [8] It considers essential the integration of a gender perspective in governments' policies, laws, development plans, etc. [9] It urges States to apply the principle of gender equality at all levels: local, national, regional and continental. [10]

In addition, many African countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 8 of CEDAW provides that women must have equal opportunities with men to represent their countries at the international level and to participate in the work of international organizations.

There is therefore an existing legal framework for African governments to ensure that women on an equal basis with men can participate in the continent's decision-making bodies and more specifically contribute their expertise to the building of an effective African Court.

The AU applies a 50/50 gender parity policy. For example, the leadership of the eight departments at the African Union Commission should be held by four women and four men. The AU Gender Policy describes the 50/50 gender parity principle adopted by the AU as the 'most advanced global commitment to equal representation between men and women in decision making.' [11] It is worrying therefore that the application of this principle has been unsuccessful in determining the composition of judges at the African Court.

SETTING UP THE AFRICAN COURT - THE PROCESSES SO FAR

The elections of the first judges of the Court took place in January 2006, even though the protocol to the African Charter on the Establishment of an African Court on Human and Peoples' Rights (that is, African Court Protocol) [12] came into force in 2004. The interval gave ample time to the African Union to decide on procedure for election of judges and for member states to submit candidates. [13]

The African Court Protocol provides for eleven judges who are elected in their individual capacity. [14] The protocol further provides that the judges must fulfil certain criteria. They must be nationals of member states of the OAU/AU, jurists of high moral character and possess recognized practical, judicial or academic competence and experience in the field of human and peoples' rights. [15] In nominating judges, Article 12 of the African Court protocol provides that states may propose up to three nominees and shall give 'due consideration to adequate gender representation in the nomination process.' It is also stresses that judges must be independent and must not occupy a position that is inimical to their independence or impartiality or prevents them from performing their judicial function. [16] Although only state parties (that is, states that have ratified the instrument establishing the African Court) can nominate candidates, all the members of the OAU/AU can vote during the elections. [17] Interestingly, the protocol also directs that in voting, regard must be had to the main regions of Africa and the principal legal systems represented so that there is diversity and balance in the composition of the court. [18] African countries are divided into five regional blocs: West, East, Southern, North and Central. The principal legal systems are common, civil, Islamic law and African customary law.

Ahead of the elections, the AU adopted the guidelines for nomination of judges to the African Court on Human and Peoples' Rights. [19] The guidelines among other things provided that State parties should:

• Set up an accountable and transparent nomination process at national level.

• Ensure that the processes and criteria for nomination and selection of candidates are widely publicized through advertisement and announcements in the media, etc.

• Involve NGOs, bar associations, academics and other civil society groups in the process.

• Nominate qualified jurists that fulfil the criteria specified in the African Court Protocol.

• Submit duly completed biographical information stating the relevant experience of the nominees especially in the area of human and peoples' rights and other information on nominee's affiliations to verify his or her eligibility.

• Seek out outstanding candidates even when they may be from States that are yet to ratify the African Court Protocol.

• Ensure that at least one of their three possible nominees is a woman.

Several challenges have arisen as a result of partial compliance or non-compliance with these guidelines. However, this article focuses primarily on how the states have implemented the gender equality provisions contained in the guidelines and in the various treaties highlighted above.

PRACTICE OF NOMINATION OF CANDIDATES AND ELECTION OF JUDGES OF THE AFRICAN COURT

When the first election of judges to the African Court took place in 2006, 22 States had ratified the African Court protocol. [20] 16 of these states [21] sent in nominees. The compiled list had 21 candidates [22] for the election, five of whom were women. The nominees were: Domitille Barancira - Burundi, Noura Oussane - Comoros, Sohia Akuffo - Ghana, Joyce Alouch - Kenya and Kellelo Justina Mafaso-Guni - Lesotho. After the election two of the female candidates, Sohia Akuffo of Ghana and Kellelo Justina Mafaso-Guni of Lesotho were elected.

By the time of the second election in July 2008, 24 countries were state parties to the African Court Protocol. [23] However, only seven nominations were made with Ghana, Kenya, Uganda, South Africa, Cote d'Ivoire and Burkina Faso nominating one candidate each. Ghana's nominee was the only female candidate, that is, Justice Sohia Akuffo, who was eligible for re-election. She was re-elected for a second term of six years at the African Court and the number of female judges remained two.

The third election in July 2010 also had a short list of seven nominees to fill five vacancies despite the fact that by June 2010, Malawi was also a state party to the African Court Protocol raising the number of state parties to 25. Three persons on the list were judges eligible for re-election, namely, Mr El Hadji Guisse (Senegal), Mr Hamdi Faraj Fannoush (Libya) and Mr Fatsah Ouguergouz (Algeria). The remaining two vacancies were created by Mr Githu Mugai (Kenya) who was elected in 2008 but had resigned his post as a judge in 2009; and Mrs Kellelo Justina Mafaso-Guni (Lesotho) whose first term had expired and unfortunately was not re-nominated for consideration for a second term. The remaining candidates for 2010 were: Ms Elsie Nwanuri Thompson (Nigeria), Mr Sylvain Ore (Côte d'Ivoire), Mr Augustino Stephen Ramadhani (Tanzania) and Mr Duncan Green Tambala (Malawi). Ms. Thompson and four others [24] were successfully elected. Since Mrs Mafaso-Guni was not re-nominated, her position as a female judge was lost and the number of female judges remained two.

At the recently concluded AU Summit in Addis Ababa, July 2012, three judges were elected out of a list of six for the existing vacancies. The list of candidates is as follows:

- Mr El Hadji Guisse (Senegal)

- Mr Ben Kioko (Kenya)

- Mr Fafa Edrissa M'Bai (Gambia)

- Mr Angelo Vasco Matisse (Mozambique)

- Mr Jean Mutsinzi (Rwanda)

- Mr Gérard Niyungeko (Burundi)

Two of the candidates above were judges vying for a second term. They were Judges Niyungeko and Mutsinzi. Mr Modibo Tounty Guindo (Mali) whose first term also expired was not re-nominated. Before the elections on 14 July 2012, Gambia and Mozambique withdrew their nominations. All the nominees for the 2012 elections were male. Eventually, Niyungeko, Kioko and Guisse were elected. [25] The number of female judges still remains two.

This current state of affairs makes it difficult to improve on the gender balance in the African Court. Two issues are clear:

1. State parties are not nominating enough candidates. There are currently 26 state parties to the Protocol, [26] but only six candidates were nominated for the 2012 elections - a far cry from the potential 78 persons that could have been candidates provided every state party nominates three persons each. The African Court protocol provides that 'States Parties to the Protocol may each propose up to three candidates, at least two of whom shall be nationals of that State.' [27] Having such short lists limits the choice available. It also indirectly prevents states from implementing the gender parity principle since sole candidates can only be of one gender not both. It further makes evaluation of the application of gender equality as enshrined in the African Women's Rights Protocol and SDGEA ineffective. Where state parties nominate at least two candidates, it can be evaluated more effectively for failing to comply with the treaties and guidelines, where both candidates are of the same gender.

2. Gender representation is treated as an optional criterion. From the nominees list there is often representation of the five regional blocs in Africa - West, East, Southern, North and Central Africa. At the last elections the three judges elected came from the West, East and Central regions. It is not clear why state parties to the African Court Protocol have not nominated enough women. What is clear is that state parties have ignored the recommendation on gender equality and breached Article 12 of the African Court Protocol by not providing for 'adequate gender representation' in the list of candidates. State parties to the African Court Protocol should at the minimum nominate one woman and one man for the positions when called upon to do so. By nominating only men for the positions, the states have limited the application of gender parity in the court. It becomes impossible for the court to achieve gender parity where the only candidates available to fill existing spaces are all men.

So far it appears that when there were sole female candidates in 2008 and 2010, [28] they were elected. This is the strongest indication yet that when women are nominated, gender representation can be invoked to improve compliance to the gender parity principle within the composition of judges. The weakness suffered by the process is in the number and gender of nominees presented for election.

OPPORTUNITIES AND RECOMMENDATIONS

• The platform of the African Women Decade 2010-2020 as an advocacy tool for government and civil society to improve the opportunities for women in regional justice institutions.

• Strict adherence to the provisions of the African Court Protocol, the African Women's Rights Protocol (all the states parties to the African Court Protocol except Algeria, Burundi, Congo, Mauritius and Tunisia have also ratified the protocol on the rights of women) and the Guidelines for Nomination of Judges to the African Court

• Awareness raising and sensitization about the judges' elections and application of the gender parity principle within the AU.

• Sustained interrogation and involvement of civil society for a more equitable and just institution

• Access to information to assist States with AU processes especially regarding re-nomination of existing judges of the African Court

• Universal ratification of both protocols by AU states.

The AU Assembly at its 12th Ordinary session in February 2009 at Addis Ababa, Ethiopia, declared the year 2010-2020 as the African Women's Decade (AWD). [29] The AWD provides a platform for AU member states to revisit their commitments to gender equality and gender justice. Due to the staggered nature of the terms of judges, elections would take place every two years. There are four opportunities in 2014, 2016, 2018 and 2020 for states to ensure that they nominate qualified female candidates for vacancies as they arise.

It is equally imperative that the process for nominating candidates fulfils the obligation contained in the African Court Protocol and the African Women's Rights Protocol. Furthermore, national procedures should be amended to satisfy the criteria set out in the Guidelines for Nomination of Judges to the African Court before nominees details are submitted in time to the office of the legal counsel at the AUC. The process among other things should be transparent and accountable. If the guidelines are followed there would be more opportunities for qualified female nominees to be selected since the process would be open and interested Civil Society and public can question the suitability of the nominees as appropriate.

Civil society organisations, human rights groups and women's groups should be alert to the nomination and election cycle. It is also important to know which persons and institutions to engage with. It would help to begin advocacy well in advance and at least one year before the elections so that the processes are monitored and strategies are developed for engaging with the process before nominations and during elections.

The situation where a candidate who fulfils the criteria could have been re-elected but was not as in the 2010 elections when Mrs Mafaso-Guni was not re-nominated could have been avoided with access to information. It appeared that it was not clear to many states that upon the expiration of a term, a candidate should be re-nominated since re-nomination is not automatic. The office of the legal counsel at the AUC has a responsibility to inform relevant national bodies of the rules and impress on them to follow the criteria set out by law and policy.

Finally, the African Women's Rights protocol gives the African Court a unique role. It is expressly stated in Article 27 of the African Women's Rights protocol that the African Court shall be seized with matters of interpretation arising from the application or implementation of this Protocol. It is important that an institution charged with such responsibility also reflects the character and intent of the treaty for gender equality in law and practice.

CONCLUSION

The pursuit for gender parity stems from the recognition of the commitment of 'African States [themselves] to ensure the full participation of African women as equal partners in Africa's development.' [30] This commitment must now move to action. The capable women that Africa has educated and trained over the years can fill the positions only if African states nominate and elect them for these positions.

Recently, Dr Nkosana Dlamini-Zuma (South Africa) was elected as the first female chairperson of the AUC. [31] Mrs Sanji Mmasenono Monageng (Botswana) formerly of the African Commission on Human and Peoples' Rights is now a judge of the ICC. Other female African judges of the ICC are: Joyce Aluoch (Kenya) and Akua Kuenyehia (Ghana). [32] The president of the ECOWAS Community Court of Justice is Hon. Justice Awa Nana Daboya (Togo). [33] If they were not nominated, they would not have had the opportunity to compete for the position and get elected.

Positive and decisive acts are required therefore to change the discourse and ensure effective promotion of gender equality in the composition of judges of the African Court. Until the court attains 5:6 or 6:5 ratio, gender parity would not be achieved.

We have two years to make the shift to a more equitable and gender balanced Court. The work begins now and with the vast human resources at our disposal the task of attaining gender parity in the African Court is not only easier, it is achievable.

Osai Justina Ojigho is a lawyer, human rights activist and gender advocate from Nigeria. She coordinates the Working Group on Gender Justice in Africa and is currently the Deputy Executive Director at Alliances for Africa (AfA). She also represents AfA on the Steering Committee of the Solidarity for African Women's Human Rights (SOAWR) and on the Executive Committee of the Coalition for an Effective African Court.  Her interests include gender equality, human rights and international Justice, focusing on Africa.

END NOTES

[i] See preamble to the Solemn Declaration on Gender Equality in Africa 2004, Assembly/AU/Decl.12(III) in Decisions and Declarations of the Assembly of the African Union 3rd Ordinary session document available on http://goo.gl/EZvL6 (last date accessed 27 July 2012);

[ii] For a list of current and previous judges of the Court see the African Court website www.african-court.org and the African Court Coalition website www.africancourtcoalition.org

[iii] The AU, which is the successor of the former OAU has 54 member states: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, The Comoros, Republic of Congo, Democratic Republic of Congo, Côte d'Ivoire, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, The Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Nigeria, Rwanda, Sahrawi Arab Democratic Republic (i.e. Western Sahara), Sao Tomé and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia and Zimbabwe. Morocco is the only country in Africa that is not a member of the African Union. It withdrew its membership in 1985 when the Sahrawi Arab Democratic Republic was admitted to the OAU/AU. For more information about the AU, see its website Last date accessed 23 July 2012

[iv] The Constitutive Act of the African Union was adopted in 2000 and entered into force in May 2011. It was reproduced in Christof Heyns and Magnus Killander, Compedium of Key Human Rights Documents of the African Union, 3rd Edition Pretoria PULP 2007 at 4-12; Also available at http://goo.gl/RDlxu

[v] Supra note 1

[vi] The African Women's Rights Protocol may be accessed at http://au.int/en/content/protocol-african-charter-human-and-peoples-rights-rights-women-africa]http://au.int/en/content/protocol-african-charter-human-and-peoples-rights-rights-women-africa>]http://au.int/en/content/protocol-african-charter-human-and-peoples-rights-rights-women-africa Last date accessed 23 July 2012

[vii] African Women's Rights Protocol, Art.8(e)

[viii] African Women's Rights Protoco,l Art 9(2)

[ix] African Women's Rights Protocol, Art 2(1)(c)

[x] African Women's Rights Protocol, Art 2(1)(e), 8(b), 10(2)(b)&(c)

[xi] See p. 13 Commitment 1: Creating an Enabling and Stable Environment, AU Gender Policy Rev 2, Feb 10 2009

[xii] For a copy of the African court protocol, see < http://au.int/en/content/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and-peop> Last date accessed 23 July 2012

[xiii] See Coalition for an Effective African Court, A report on the Nomination of Judges to the African Court on Human and Peoples' Rights (January 2006) p.3

[xiv] African Court Protocol, Art. 11(1)

[xv] Ibid.

[xvi] African Court Protocol Art 17 & 18

[xvii] African Court Protocol Art. 14

[xviii] African Court Protocol Art 14(2);

[xix] Contained in OAU Note Verbale (BC/OLC/66.5/8/Vol. V) of November 2004.

[xx] i.e. Algeria, Burkina Faso, Burundi, Comoros, Cote d'Ivoire, Gabon, Gambia, Ghana, Kenya, Lesotho, Libya, Mali, Mauritius, Mauritania, Mozambique, Niger, Nigeria, Rwanda, Senegal, South Africa, Togo and Uganda.

[xxi] Gabon, Gambia, Mauritius, Mauritania, Mozambique and Togo did not submit nominees.

[xxii] See op.cit supra note 13 at 7-9

[xxiii] Tanzania and Tunisia ratified in 2006 and 2007 respectively.

[xxiv] These were Ouguergouz, Ore, Ramadhani and Tambala.

[xxv] Note that of the 54 AU member states only 51 voted as Mali, Madagascar and Guinea-Bissau had sanctions imposed and were prevented from taking part in any AU decision-making including elections of the Judges. See AU press release: (last accessed 31 July 2012)

[xxvi] Congo ratified in June 2012; For an updated list of the Status of Treaties please see:< http://www.au.int/en/treaties>

[xxvii] See African Court Protocol, Art 12(1)

[xxviii] i.e. Judge Sophia Akuffo and Judge Elsie Thompson respectively.

[xxix] Assembly Dec. 487 (XIX)

[xxx] See preamble to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa

[xxxi] (Sokari Ekine, "On the new AU boss and savage demolitions in Nigeria," 2012-07-19, Issue 594, http://pambazuka.org/en/category/features/83732; Rumbidzai Dube, "African Women on Fire" in MaDube's Reflections: http://madubesbrainpot.wordpress.com/2012/07/16/african-women-on-fire/) last accessed 28 July 2012

[xxxii] see http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Chambers/The+Judges/)

[xxxiii] (http://www.courtecowas.org/site/index.php?option=com_content&view=article&id=28&Itemid=31&lang=en)

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