The gender of judges and magistrates presiding over GBV cases does matter

As we approach National Women’s Day this weekend, I would like to reflect on what the UN Office on Drugs and Crime (UNODC) calls “articulations of the gendered inequalities, stereotypes, norms and values that are prevalent in cultures and societies”. In particular, reflecting on the role our courts and, particularly, women magistrates and judges play in the fight against gender-based violence (GBV).

The government of South Africa is probably running out of words and phrases to use in flowery promises to eradicate GBV. Yet, despite these statements, the experiences of women at the front end of the criminal justice system is markedly different from men’s experiences.

It comes as no surprise that, even during Women's Month, the Directorate for Priority Crime Investigation (Hawks) exhibited heavy-handedness against a woman suspected of ordinary crimes. Heavy handedness, not in the form of guns and batons, but abuse of special investigatory powers. Norma Gigaba was denied procedural justice and was subjected to unconstitutional process-based investigative decisions. Of course, the coin has two sides, and the Hawks will tell us otherwise to justify their actions.

Have you ever asked the question: how much does a magistrate or a judge’s individual perspective on gender matter in decision making? What role are our courts playing in helping the fight against GBV?

These are questions considered in Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope, a 2018 book by Kathryn M Stanchi, Bridget J Crawford and Linda L Berger on the global Feminist Judgments Project (FJP). In the US, the FJP is essentially a global collaborative project of feminist law academics who reimagine and rewrite key judicial decisions from a feminist perspective, using the facts and precedent of the original opinion but with their judging taking a “feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalised by the law”.

This new feminist critique of key judgments and praxis projects uses legal fiction as its methodology. The African FJP was co-ordinated by Dr Sibongile Ndashe (Initiative for Strategic Litigation in Africa, Johannesburg), Dr Sharifah Sekalala  (Warwick Law School) and Professor Ambreena Manji (Cardiff Law School).

One of the questions asked of participants in the project related to the difference a judge with a feminist perspective could make in the reasoning or result in a case. The crux of the project is that the obligation of impartiality of the judiciary and the notion that judgment is neutral is a fallacy. Also, gender difference does make a real difference on the bench.

You read this judgment, in particular the defence for the accused, and suddenly a clear picture of the backward perception of some men about women becomes clear.