The Politics of Women's Presence on High Courts: Bias and the Conditional Nature of Cultivating Legitimacy

While we know that women's presence in the legislature positively impacts how citizens view the institution, little is known about the impact of women's presence on the legitimacy of high courts. We argue that despite differences in public expectations for courts, women's presence on the high court does impact citizen perceptions of legitimacy. However, this effect is dependent on both the level and the type of bias held by citizens. That is, when a person feels hostile bias toward women, the bias disrupts the potential legitimacy that the court could gain. On the other hand, we argue that benevolent sexism does not trigger any change in how citizens view the high court in a democracy. Using evidence from an experiment, we find that the presence of women on the high court has a strong positive impact on citizen perceptions of court legitimacy, though not among those with hostile gender bias.

Women’s Representation on High Courts

Chapter 1 poses the central question of the book: Why has women’s representation advanced on high courts worldwide? After theorizing why women’s presence is essential for the judicial process, the chapter argues that monocausal explanations for women’s representation on high courts are insufficient. The appointment of judges involves multiple sources of influence. This chapter builds an analytic framework to explain the gains women have made on high courts by focusing on three sets of explanations: pipelines to high courts, domestic institutions including selection mechanisms, and international influences. The book’s global lens and combination of quantitative time-serial analyses and five country studies (Canada, Colombia, Ireland, South Africa, the United States) allows for examining these influences across a variety of structures, institutions, and regional contexts. The chapter also lays out the plan of the book, with the first part highlighting the book’s cross-national quantitative comparisons, and the second part examining pathways and processes to investigate how and why women are appointed.

Conclusion

The final chapter, chapter 7, weaves together the findings from both the cross-national, time-serial statistical analyses and the in-depth case studies to offer overarching arguments for why women’s representation advanced on high courts around the world. Despite differences in socioeconomic and legal contexts, a common denominator emerges: high courts are gendered. Taken together, both the cross-national and cross-temporal evidence shows that women’s appointments to the peak bench is not automatic, and that both domestic and international factors are influential. In general, despite relatively full pipelines, gendered institutions in the selection process have limited women’s advancement. In different ways, changing global norms have raised the profile of women’s appointments, placing pressure on those with the power to transform the bench, although with varying degrees of success. A chain of favorable influences emerge: new norms of gender equality encourage reimagining the composition of courts; advocacy organizations challenge the status quo; and windows of opportunity enable change. For women to make significant and sustainable strides, it is necessary to go beyond equal treatment and access to the same opportunities. Instead, what is needed is an equity-minded approach: a fundamental transformation of the processes that were built around the traditional all-men norm. The chapter offers a multi-pronged set of approaches for diversifying the judiciary. Reimagining high courts is not only about gender parity; it means building inclusive judiciaries that reflect the full range of lived experiences in society.

How Institutions Influence the Appointment of Women to High Courts

Chapter 5 sets out the formal and informal institutions that, collectively, comprise the selection process for the highest courts in five countries (Canada, Colombia, Ireland, South Africa, and the United States). Limiting the focus to formal rules of selection overlooks informal institutions (norms and practices) that constrain and enable the choices of selectors. Selection often rests on identifying a list of potential nominees based on informal networks, which have historically been composed of men. Across country cases, gendered networks and gendered ideas about qualifications often act as filters to hinder the appointment of women. When selectors or their key advisors decide to do so, they can disrupt reliance on these traditional networks by looking beyond the usual suspects as they draw up their shortlists. The chapter also illuminates the contexts in which electoral accountability and incentives matter. When selectors perceive electoral benefit from selecting a woman, and can be held accountable by their electorate, they are more likely to do so. In the context of pressure to select a woman, judicial nominating commissions and affirmative legal language can also increase women’s representation.

Where Have Women Made the Most Strides?

Chapter 3 asks where and why have women made the most strides on high courts? What factors help courts move beyond having one “woman’s seat”? This chapter draws on the authors’ dataset on the percentage and number of women on high courts. The chapter describes regional, cross-national, and time-serial variation in the gender composition of courts and identifies the courts which have achieved gender parity. Analyses reveal that both international and regional influences play a significant role in explaining women’s representation after the appointment of the first woman, more so than accountable selectors or economic development. Specifically, the analysis suggests that courts located in regions of the world where women are commonly included on courts, as well as those with a longer commitment to international law, have more women. Additionally, larger courts are more likely to have more women justices. The chapter also underscores how progress toward parity on courts is not linear, identifying those courts which reverted to being all-men after having appointed the first woman.

International Influences on Women’s Representation on High Courts

Chapter 6 examines the influence of international factors on the appointment of women to high courts in the case studies, focusing on the impact of international and regional norms, the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), and the advocacy of international and domestic nongovernmental women’s rights organizations. The emergence of regional norms of gender equity in governance, including in the judiciary, is traced for Africa, Europe, and Latin America. Drawing on United Nations and country-specific primary sources, the rise of CEDAW mandated reporting on gender diversity in the judiciary and on high courts is documented in four of the case study countries (Canada, Colombia, Ireland, South Africa). Including the United States, the five case studies highlight the role of domestic advocacy organizations that exert pressure on appointers to consider women candidates for judgeship on high courts.

SOME NOTABLE DIVERGENCES IN THE DEVELOPMENT OF SOUTH AFRICAN AND NAMIBIAN INSOLVENCY LAW

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.

ARRESTS WITHOUT WARRANT: THE SCA BRINGS CLARITY Minister of Safety and Security v Sekhoto 2011 1 SACR 315 (SCA); [2011] 2 All SA 157 (SCA)

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant.