Beyond the Numbers: Diversity on the Constitutional Court Bench

Originally the Constitutional Court was established as the final court on all constitutional matters. However, following the 17th amendment Act of 2012 it is now South Africa’s highest court on all matters. The Constitutional Court consists of the Chief Justice, the Deputy Chief Justice and nine other judges. Thus, the Court’s bench is supposed to be made of 11 judges. Currently, there are two vacancies at the Constitutional Court. The Judicial Service Commission (JSC) has advertised those vacancies and in April 2019, the Commission will conduct interviews. The JSC is expected to shortlist the best performing candidates and recommend them for appointment by the President.

The Constitutional Court is one of the key institutions in South Africa’s fledging democracy. Since its establishment, it has delivered judgments which reinforced democracy and protected human rights at critical moments. For instance, it is this Court which ordered the Government to extend availability of the Nevirapine drug to public hospitals and clinics at a time when the government was refusing to do so. It is this Court which ruled that the death penalty is incompatible with the constitutional protection of human dignity and thus ended capital punishment in South Africa. In 1998, this Court ruled that the common-law offence of sodomy is inconsistent with the Constitution, thereby vindicating the right to equality for the LGBTI community. It is also this Court which ruled against the principle of male primogeniture, thereby asserting the right to equality for women and the so-called illegitimate children in matters of inheritance under customary law. In 2016, all the other organs of the state had failed to stop President Zuma from disregarding the Public Protector’s recommendations to reimburse the state the money that had been used to build his private home at Nkandla. Although there are questions regarding the source of the money, President Zuma paid back the money only after being ordered to do so by the Constitutional Court. Thus, this Court has acted as the last line of defense for democracy and vindicated social justice at defining moments in post-apartheid South Africa. This is how important this Court is to South Africa and its democracy.

At this point when the JSC is seeking to select candidates for possible appointment to the Constitutional Court, there is need for South Africans to reflect and critically engage the JSC and the President on the calibre of people that they want to see appointed. As the apex court on all matters, it is important that this Court be staffed with judges who are highly competent in various areas of law, beyond just constitutional law. The curriculum vitaes (CVs) of the nine judges who are currently on the court’s bench shows that the judges come from a strong human rights, criminal law, labour law and commercial law background. Since this Court now has jurisdiction to adjudicate over all legal disputes, there seems to be a need to consider appointing judges and jurists who are strong in other areas of law that are relevant in South Africa, such as environmental law, international law, marine law, trade law and competition law.

There is also the need to ensure that the bench reflects South Africa’s diversity. But the question is what does diversity mean? As the Constitutional Court’s website puts it, originally the idea of establishing the Constitutional Court was born out of the realisation that:

“in 1994, the judiciary was overwhelmingly white (and male) and therefore limited in its legitimacy and its capacity to draw on the sense of justice of all communities and both sexes. It was agreed that a new court, more representative of South Africa’s diverse population, should be established to protect the Constitution and the fundamental human rights it entrenches.” – ConCourt.org.za

Although made up of judges with impeccable qualifications and a great sense of justice, the first Constitutional Court bench did not adequately reflect the diversity of South Africa, particularly from a gender and racial point of view. For instance, there were seven white, one Indian and only three black judges. Of the eleven judges, only two were women. The Court was therefore predominantly white and male. Possibly, this was because there were few blacks and women who had the necessary formal experience to qualify them for appointment at that time. Thankfully, that Court still delivered progressive judgments.

A commitment was made to transform not just the Constitutional Court but the composition of the judiciary as a whole. This commitment is reflected in section 174 (2) of the Constitution which states that “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.” In terms of race, the 2018 Report by Stats SA reveals that 80.9% of the total population is black African, 8.8% are coloured, 2.5% are Indian/Asian and 7,8% are white. Currently, the Constitutional Court comprises of nine members. Of these, eight judges are black, one is white and there is no coloured or Indian judge on that bench. It seems therefore that, from a racial diversity point of view, there is an imbalance which must be addressed in so far as the bench is not representative of the coloured and Indian/Asian segment of the population. From a gender diversity point of view, the current bench of the Constitutional Court is predominantly male. Of the nine judges, only three are women while six are males. There is therefore a need to redress this glaring gender imbalance when the President considers the appointment of judges to fill the existing two vacancies.

However, there is more to South African diversity than just gender and race. When one talks of the diversity on the Constitutional Court bench, it is critical to think beyond section 174 (2) of the Constitution. When the Constitutional Court was originally conceptualised, the idea was to establish a Court which is “representative of South Africa’s diversity”. Clearly, South African diversity cannot be restricted to gender and race. Although it must be acknowledged that those are the only two grounds of diversity that the Constitution expressly enumerates. We want a broader understanding of diversity, but have to accept that it is an argument that has to be made more inferentially. Other critical considerations ought to be made, which include diversity in terms of socio-economic class, religion and professions. The South African population comprises of people who are from various socio-economic backgrounds which broadly speaking can be identified as the privileged and the underprivileged. Historically, these socio-economic classes mirror racial categories but this is not always the case now. For instance, while blacks are usually from underprivileged backgrounds because of the apartheid history, there are some who come from the privileged backgrounds and their appointment on the Constitutional Court may not necessarily mean that they will interpret the law from a lived experience of being underprivileged. Therefore, when making appointments to the Constitutional Court, it may be necessary to consider socio-economic background as a dimension of diversity that is independent from one’s race.

Beyond race and gender, there is also need to consider religion and culture as dimensions to South African diversity. While South Africa is officially regarded as a secular state, the reality is that there are significant portions of the population who practice various forms of religion. A survey conducted by Worldatlas reveals that only 15% of the total population does not identify themselves with any religion while the rest (85%) belong to different religions which include Islam, Christianity, Hinduism, Buddhism and the African traditional religion. 88% of the participants in the Ipsos Mori Poll declared that religion was an important part of their lives. It is difficult to establish if there is any religious bias in terms of the composition of the current bench of the Constitutional Court because judges do not often declare their religious affiliations. But the point remains that South Africa is diverse in terms of religion and if the Constitutional Court is to be “representative of South African diversity”, some careful consideration must be made to ensure that the court’s bench is not dominated by people who are religious or who practice a particular religion or who are non-religious.

Of course, I would not have done justice to this debate if I do not point out that diversity on the bench does not necessarily mean that the judges should be biased towards the constituency from where they are drawn. The judges, as has always been the case, must exercise fidelity to the Constitution and the law. However, an improved diversity on the bench makes it more likely for diverse opinions and views to be considered when interpreting the Constitution, thereby enhancing the quality of decisions to be made by the Court. Diversity and representativeness is also likely to lend legitimacy to the Court and enhance public confidence in the Court’s judgments.

The public are welcome to make comments on the candidates and attend the JSC interviews. Details on the April 2019 round of interviews can be found here.