Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-24T03:00:55.226Z Has data issue: false hasContentIssue false

To “Mother” or not to “Mother”: The Representative Roles of Women Judges in Ghana

Published online by Cambridge University Press:  22 November 2016

Josephine J Dawuni*
Affiliation:
Howard University, Washington, DC

Abstract

Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.

Type
Research Article
Copyright
Copyright © SOAS, University of London 2016 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Steady, F Women and Leadership in West Africa: Mothering the Nation and Humanizing the State (2011, Palgrave Macmillan).CrossRefGoogle Scholar

2 Dawuni, JJustice Annie Jiagge” in Acheampong, E and Gates, H (eds) Dictionary of African Biography (2011, Oxford University Press) 207 Google Scholar.

3 Dawuni, J and Kang, AHer Ladyship Chief Justice: The rise of female leaders in the judiciary in Africa” (2015) 62/2 Africa Today 45 CrossRefGoogle Scholar.

4 Mandosella, TBeyond putting women on the agenda” (1995) 11/24 Agenda 27 Google Scholar; Hoekstra, VIncreasing the gender diversity of High Courts: A comparative view” (2010) 6/3 Politics and Gender 474 CrossRefGoogle Scholar; Ndulo, MAfrican customary law, customs and women's rights” (2011) 18/1 Indiana Journal of Global Legal Studies 87 at 110CrossRefGoogle Scholar; Rackley, E Women, Judging and the Judiciary: From Difference to Diversity (2013, Cavendish Routledge)Google Scholar; Kenney, S Gender and Justice: Why Women in the Judiciary Really Matters (2013, Routledge)Google Scholar.

5 Malleson, KJustifying gender equality on the bench: Why difference won't do” (2003) 11/1 Feminist Legal Studies 1 CrossRefGoogle Scholar; Malleson, KProspects for parity: The position of women in the judiciary in England and Wales” in Schultz, U and Shaw, G (eds) Women in the World's Legal Professions (2003, Portland / Hart Publishing) 175 at 182Google Scholar; Hunter, RCan feminist judges make a difference?” (2008) 15/1 International Journal of the Legal Profession 7 at 30CrossRefGoogle Scholar; Kenney, SThinking about gender and judging” (2008) 15/1 International Journal of the Legal Profession 87 CrossRefGoogle Scholar; Coontz, PGender and judicial decisions: Do female judges decide cases differently than male judges?” (2000) 18/4 Gender Issues 59 CrossRefGoogle Scholar; Cowan, RDo women in South Africa's courts make a difference?” in Shultz, U and Shaw, G (eds) Gender and Judging (2013, Portland / Hart Publishing) 317 at 320Google Scholar.

6 Dawuni and Kang “Her Ladyship Chief Justice”, above at note 3.

7 Nyamu-Musembi, CRuling out gender equality? The post-Cold War rule of law agenda in sub-Saharan Africa” (2006) 27/7 Third World Quarterly 1193 at 1200CrossRefGoogle Scholar; Prempeh, KAfrica's ‘constitutional revival’: False start or new dawn?” (2007) 5/3 International Journal of Constitutional Law 469 at 500CrossRefGoogle Scholar; and Ndulo “African customary law”, above at note 4.

8 Hunter “Can feminist judges”, above at note 5.

9 Junqueira, EWomen in the judiciary: A perspective from Brazil” in Shultz and Shaw (eds) Women in the World's, above at note 5, 437Google Scholar; Malleson “Prospects for parity”, above at note 5; Rackley Women, Judging, above at note 4; Kenney Gender and Justice, above at note 4.

10 Coontz “Gender and judicial decisions”, above at note 5; Malleson “Justifying gender equality”, above at note 5; Kenney Gender and Justice, above at note 4; Rackley Women, Judging, above at note 4.

11 Gilligan, C In a Different Voice: Psychological Theory and Women's Development (1982, Harvard University Press)Google Scholar.

12 Goldman, SShould there be affirmative action for the judiciary?” (1979) 62 Judicature 488 Google Scholar; Coontz “Gender and judicial decisions”, above at note 5.

13 Yancey, M, Reynolds, J and Keith, SGender bias and feminist consciousness among judges and attorneys: A standpoint theory analysis” (2002) 27/3 Signs: Journal of Women in Society 665 at 700Google Scholar; Westergren, SGender effects in the Court of Appeals revisited: The data since 1994” (2004) 92 Georgetown Law Journal 689 Google Scholar.

14 Junqueira “Women in the judiciary”, above at note 9; Hunter “Can feminist judges”, above at note 5.

15 Malleson “Justifying gender equality”, above at note 5; Kenney Gender and Justice, above at note 4.

16 Westergren “Gender effects”, above at note 13.

17 Miller, S and Maier, SMoving beyond numbers: What female judges say about different judicial voices” (2008) 29/4 Journal of Women, Politics & Policy 527 CrossRefGoogle Scholar.

18 Westergren “Gender effects”, above at note 13.

19 For an exception, see Dawuni, JGhana: The paradox of judicial stagnation” in Bauer, G and Dawuni, J (eds) Gender and the Judiciary in Africa: From Obscurity to Parity?” (2016, Routledge) 120 at 126Google Scholar.

20 Act 459, as amended in 2004 (Act 674).

21 J Dawuni “Ghana: The paradox”, above at note 19 at 126.

22 The data presented represents the numbers that were captured at the end of 2014. Since then, there have been promotions through the ranks of the court system, while one of the female judges on the Supreme Court resigned upon reaching the statutory retirement age. Attempts to update the information as at the time of writing were not successful due to technical issues on the Judicial Service of Ghana website, which does not currently display the list of judges in each court, and unsuccessful efforts to obtain updated data from contacts at the judicial service. Since 2014, 13 new judges have been promoted to the High Court, out of whom five are women. See for instance “CJ swears in 13 High Court judges to replace ‘Anas judges’” (15 July 2016) Myjoyonline, available at: <http://www.myjoyonline.com/news/2016/july-15th/cj-swears-in-13-high-court-judges-to-replace-anas-judges.php> (last accessed 27 September 2016).

23 Barbour, RChecklists for improving rigor in qualitative research: A case of the tail wagging the dog?” (2001) 322/7294 British Medical Journal 1115 CrossRefGoogle Scholar.

24 The process of obtaining judges' names and contact information was long and arduous, due to the need to protect and safeguard judicial independence.

25 Based on information received from the Judicial Service of Ghana at the time of the interviews, it is estimated that, out of a total of 326 judges, magistrates and career magistrates in Ghana, only about 80 are women. Due to the lack of proper record keeping, the exact numbers of judges could not be obtained from the Judicial Service. The total of 326 includes career magistrates who are often not considered to be judges.

26 Career magistrates are a recent development in Ghana, introduced in 2003 in response to the dearth of judges in district courts. They include people who do not necessarily possess a law degree. After two years training at law school, they qualify to serve as judges, but are not promoted to higher courts. They were introduced to help deal with the heavy caseload, which had often resulted in delays to the effective administration of justice.

27 Davis, SDo women judges speak in a ‘different voice?’” (1993) Wisconsin Women's Legal Journal 143 Google Scholar; Martin, EThe representative role of women judges” (1993) 77 Judicature 166 Google Scholar; Rackley, EDifference in the House of Lords” (2006) 15/2 Social & Legal Studies 163 CrossRefGoogle Scholar; Anleu, S and Mack, KMagistrates, magistrates courts and social change” (2007) 29/2 Law and Policy 183 at 190CrossRefGoogle Scholar; Kenney Gender and Justice, above at note 4.

28 Cowan “Do women in South Africa's”, above at note 5.

29 Martin “The representative role”, above at note 27.

30 Menkel-Meadow, CThe comparative sociology of women lawyers: The ‘feminization’ of the legal profession” (1986) 24 Osgood Hall Law Journal 89 at 101Google Scholar; M Mossman “Becoming the first women judges in Ontario: Women lawyers, gender and the politics of judicial appointment” in Shultz and Shaw (eds) Gender and Judging, above at note 5, 51 at 60.

31 Chap 11 is available at: <http://www.ghanaweb.com/GhanaHomePage/republic/constitution.php?id=Gconst11.html> (last accessed 14 June  2014).

32 Interview with a High Court judge, June 2013 (copy on file with the author).

33 Interview with a High Court judge, June 2013 (copy on file with the author).

34 The promotion procedure for judges in Ghana is not contained in an accessible document. However, most of the judges asked about the promotion procedure noted that it involves a review of the cases and judgments written by the judges, and an examination and rigorous interview by the Judicial Council before promotion is approved. For details of the 2013 promotions, see SK Obour “14 new judges sworn in” (7 August 2013) Graphic Online, available at: <http://graphic.com.gh/news/general-news/7790-14-new-judges-sworn-in.html> (last accessed 14 June 2014).

35 Allah-Mensah, B Women in Politics and Public Life in Ghana (2005, Friedrich Ebert Stiftung Foundation)Google Scholar.

36 Kamau, WWomen judges and magistrates in Kenya: Challenges, opportunities and contributions” in Shultz and Shaw (eds) Gender and Judging, above at note 5, 167 at 180Google Scholar.

37 Collins, P, Manning, K and Carp, RGender, critical mass and judicial decision making” (2010) 32/2 Law and Policy 261 CrossRefGoogle Scholar.

38 Rackley Women, Judging, above at note 4; Kenney Gender and Justice, above at note 4.

39 Malleson “Justifying gender equality”, above at note 5; Kamau “Women judges”, above at note 36; M Cardinal “The impact of women on the administration of justice in Syria and the judicial selection process” in Shultz and Shaw (eds) Gender and Judging, above at note 5, 191 at 205.

40 Feenan, DEditorial introduction: Women and judging” (2009) 17 Feminist Legal Studies 1 CrossRefGoogle Scholar.

41 Cardinal “The impact of women”, above at note 39.

42 Rackley Women, Judging, above at note 4 at 200.

43 Junqueira “Women in the judiciary”, above at note 9.

44 MR Bartolomei “Gender and judging in traditional and modern societies: A comparison of two case studies (Ivory Coast and Italy)” in Shultz and Shaw (eds) Gender and Judging, above at note 5, 283 at 290.

45 Martin “The representative role”, above at note 27; Anleu and Mack “Magistrates”, above at note 27; Hunter “Can feminist judges”, above at note 5; Cowan “Do women in South Africa's”, above at note 5.

46 Anleu and Mack, ibid.

47 Id at 202.

48 Interview with a High Court judge, June 2013 (copy on file with the author).

49 Kruse, BWomen of the highest court: Does gender bias and personal life experiences influence their opinions?” (2005) 36 University of Toledo Law Review 995 at 1012Google Scholar.

50 Junqueira “Women in the judiciary”, above at note 9 at 447.

51 Martin, EDifferences in men and women judges: Perspectives on gender” (1989) 17 Journal of Political Science 74 Google Scholar.

52 R Douglas and K Laster (1992) “Reforming the people's court: Victorian magistrates' reactions to change” (Criminology Research Council grant 13/90), as cited in Hunter, R, Anleu, SR and Mack, KJudging in lower courts: Conventional, procedural, therapeutic and feminist approaches” (2016) 12/3 International Journal of Law in Context 337 at 341CrossRefGoogle Scholar.

53 Interview with High Court judge, June 2013 (copy on file with the author).

54 Martin “The representative role”, above at note 27.

55 Kenney, SCritical perspectives on gender and judging” (2010) 6 Politics and Gender 433 CrossRefGoogle Scholar; Cowan “Do women in South Africa's”, above at note 5.

56 Interview with a district magistrate, June 2013 (copy on file with the author).

57 Junqueira “Women in the judiciary”, above at note 9 at 445.

58 Anleu and Mack “Magistrates”, above at note 27 at 185.

59 Kamau “Women judges”, above at note 36 at 184.

60 Hunter “Can feminist judges”, above at note 5.

61 Martin “The representative role”, above at note 27.

62 Cowan “Do women in South Africa's”, above at note 5.

63 Rackley Women, Judging, above at note 4.

64 Interview with a circuit court judge, June 2013 (copy on file with the author).

65 Interview with a High Court judge, June 2013 (copy on file with the author).

66 Appiagyei-Atua, KAlternative dispute resolution and its implications for women's access to justice in Africa: Case-study of Ghana” (2013) 1/1 Frontiers of Legal Research 36 at 44Google Scholar.

67 Interview with a High Court judge, June 2013 (copy on file with the author).

68 Interview with a High Court judge, June 2013 (copy on file with the author).

69 Tetteh-Charway, BPromoting a victim-centred approach to the adjudication of domestic violence cases” (2012) 52 Journal of the Association of Magistrates and Judges of Ghana 50 at 53Google Scholar.

70 Hunter “Can feminist judges”, above at note 5 at 11.

71 Martin “The representative role”, above at note 27.

72 Abrahamson, SThe woman has robes: Four questions” (1984) 14/3 Golden Gate University Law Review 489 at 492Google Scholar; id “Do women judges really make a difference? The American experience” in S Shetreet (ed) Women in Law (1998, Kluwer) 195 at 200.

73 Interview with a Supreme Court judge, June 2013 (copy on file with the author).

74 Interview with a High Court judge, June 2013 (copy on file with the author).

75 Junqueira “Women in the judiciary”, above at note 9.

76 Anleu and Mack “Magistrates”, above at note 27; Cardinal “The impact of women”, above at note 39.

77 Anleu and Mack, ibid.

78 Hunter “Can feminist judges”, above at note 5 at 30.

79 Dawuni “Ghana: The paradox”, above at note 19.

80 Rackley Women, Judging, above at note 4; Anleu and Mack “Magistrates”, above at note 27; Hunter “Can feminist judges”, above at note 5.

81 Cardinal “The impact of women”, above at note 39.

82 Anleu and Mack “Magistrates”, above at note 27 at 190.

83 Martin “The representative role”, above at note 27; Kamau “Women judges”, above at note 36.

84 The Court Watch Program is an initiative led by WiLDAF to observe the outcomes of the fast track courts established to provide justice to victims of domestic abuse in three pilot regions. The programme involved a partnership between WiLDAF and the Judicial Service in monitoring court hearings, examining data on cases filed before the courts and observing the work of court clerks and staff towards victims of abuse.

85 Martin “The representative role”, above at note 27.

86 WiLDAF “Court watch report: Observation of the application of the Domestic Violence Act in courts in Greater Accra, Volta and Western Regions” (2010).

87 Interview with a circuit court judge, June 2013 (copy on file with the author).