Date: 08/08/2004
Source: The Presidency
Title: T Mbeki: SA Chapter of International Association of Women Judges


ADDRESS OF THE PRESIDENT OF SOUTH AFRICA, THABO MBEKI, AT THE INAUGURAL CONFERENCE OF THE SOUTH AFRICAN CHAPTER OF THE INTERNATIONAL ASSOCIATION OF WOMEN JUDGES, Birchwood Hotel, Boksburg, 8 August 2004

President of the International Association of Women Judges, Judge Jane Matthews,
Chairperson of the South African Chapter of the IAWJ, Judge Lucy Mailula,
Honourable Minister of Justice, Brigitte Mabandla,
Distinguished delegates,
Distinguished guests,
Ladies and gentlemen:

I am honoured to have this opportunity to address such a distinguished gathering of women judges. On behalf of the government and people of South Africa, I wish to extend a very warm welcome to all the delegates, and especially those who come from other parts of our continent and the rest of the world.

The Oxford English Dictionary defines a judge as "a public officer appointed to administer the law."

I do not know whether you accept this definition of yourselves or whether it is consistent with actual jurisprudence.

However, the 16th and 17th century English philosopher, scholar and lawyer, Francis Bacon, stated this matter more firmly when he said: "Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law."

He charged that otherwise the judges would behave like the Church of Rome, which he said under the pretext of explaining the Scriptures, does not hesitate to add to, and change the Scriptures, propagate things that are not in the Bible, and introduce new things, claiming that the antiquity of the Church gives it this authority.

He ruled that, "Judges ought to be more learned, than witty, more reverend (worthy of respect), than plausible (a subject of applause), and more advised (act after consideration), than confident (presumptuous). Above all things, integrity is their portion and proper virtue."

Commenting further on what distinguishes a good judge, he said: "Patience and gravity of hearing (serious attention to what is being said), is an essential part of justice; and an over-speaking judge is no well-tuned cymbal."

He added, "In causes of life and death, judges ought (as far as the law permitteth) in justice to remember mercy; and to cast a severe eye upon the example (incident), but a merciful eye upon the person."

And then he advised, "Let judges also remember, that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty. Let not judges also be ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws."

He also reminded judges, "Judges ought above all to remember the conclusion of the Roman Twelve Tables Salus populi suprema lex - the safety of the people is the supreme law; and to know that laws, except they be in order to that end, are but things captious (fallacious), and oracles not well inspired."

In his treatise "On the Judicature", Bacon makes no reference to male and female judges. This is not surprising, as we may safely assume that during his day, 400 years ago, it would have been impossible even to conceive of the idea of a woman judge.

But then neither does the contemporary Oxford English Dictionary make a distinction between male and female judges. Together, they are equally public officers appointed to administer the law.

If, therefore, a judge is a judge is a judge, the matter at issue in the establishment of this Chapter of the International Association of Women Judges must be not the quality of the judiciary, as discussed by Francis Bacon, or indeed the quality of our jurisprudence.

Rather, it must be that the objective central to the establishment of this Chapter is the attainment of the vitally important objective of gender equality, whose achievement has to be a defining feature of the democracy we are striving to construct.

In 1966, Judge Constance Baker Motley was appointed as the first African-American woman to serve as a judge in the US Federal Court for the Southern District of New York. In a speech delivered in 1964, she said:

"The trend of greater participation by women in national and political life, as voters and as representatives, will tend gradually to increase the level of candidates. Surveys have shown that women are inclined to be more concerned with ethics, community projects, good schools and furthering general welfare, which concern is reflected in their voting habits. Women representatives, likewise, reflect in the conduct of their political careers, a deep interest in, and dedication to, the highest aspect of public service. This is probably due, in part, that women still must prove themselves professionally in competition with men in an atmosphere of considerable prejudice against their sex. But it must also be due to the natural and valuable tendency of women to desire passionately a world without war and a society without chaos. President Johnson's recent appointments of several women to key advisory posts in the national government were both heartening and significant. We women, Negro and white (of all races), have reason to be proud and thankful that our natural gift of devotion to the best interests of humanity is now drawing wide recognition."

(Extracted from Untitled speech by Hon. Constance Baker Motley on the Political Leadership of African Americans circa 1964, p.7. Taken from website of the Sophia Smith Collection, "Agents of Social Change", Online Exhibit, Smith College, Northampton).

This suggests that we may be wrong to conclude that the establishment of this Chapter of the International Association of Women Judges is only about gender equality, important as this is.

It advances the notion that the defeat of sexism in the composition of the judiciary also has to do with an enhanced understanding within the judiciary of such considerations mentioned by Francis Bacon, as salus populi, and the need "to cast a severe eye upon the example, but a merciful eye upon the person."

Judge Motley suggested that because of the experience of millennia of gender oppression, as well as their womanhood, women have what she described as "a natural gift of devotion to the best interests of humanity."

We meet here during our Women's Month and on the eve of our National Woman's Day. The launch of this Chapter is also taking place during the year of our First Decade of Freedom, and is an integral part of our celebrations of both this First Decade and our Woman's Day.

Accordingly, it cannot be separated both from the 10th Anniversary Celebrations and the Woman's Day celebrations. It would not have been possible to establish this Chapter if the women of our country had not taken action to engage in struggle to defeat the apartheid crime against humanity, exemplified, among other things, by the women's march on the Union Buildings on 9 August 1956.

It would have been impossible for this Chapter to be born if we had not achieved our democratic victory in 1994, thanks, in good measure, to what the women of South Africa did as fearless freedom fighters, supported by the women of Africa and the world.

I must therefore take it that you chose this particular year and this particular month to launch the South African Chapter of the International Association of Women Judges because you wanted to make the statement that as our women judges, you understand your own historic mission as a central player in the national effort to give birth to something that is new, to give birth to a new universe described by Judge Motley as "a world without war and a society without chaos."

To return to Francis Bacon, he also said, "It is an happy thing in a state, when kings and states do often consult with judges; and again, when judges do often consult with the king and state: the one, when there is matter of law, intervenient (interactive with or relevant to) in business of state; the other, when there is some consideration of state, intervenient in matter of law."

Of course all of us will understand that here Francis Bacon was discussing what in contemporary terminology would be described as separation of powers, as well as the interdependence of these powers.

I trust that our Chapter of the International Association of Women Judges will give itself time to discuss these matters, bearing in mind the circumstances precedent to its own birth, the challenges our country and people face, and the observations made by Judge Motley. I am certain the South African women judges will understand why I raise these matters.

My unschooled instincts tell me that we are living through a moment of a great awakening. I think that certainly on our continent, the ordinary people are beginning to set their own agenda. In action they are saying that the demagogues, the time-servers, and the authors of media headlines will not determine what they will do today and tomorrow.

My unschooled instincts tell me that in our own continental neighbourhood, the women of Africa are leading the charge. The principal victims of oppression and war, poverty and marginalisation, the loss of human dignity and dehumanisation and even genocide, they are saying that now is the time to end all that.

In action they are making the statement that they want to see a new Africa motivated to address the concerns identified by Judge Motley. This is a new Africa that must focus its attention on "ethics, community projects, good schools and furthering general welfare."

It is a new Africa whose governments and public representatives must demonstrate "dedication to the highest aspect of public service." It is a renewed Africa that reconstructs itself as "a world without war and a society without chaos", whose institutions are dedicated to serve "the best interests of humanity".

In taking these positions, they are determined to end both their own wretchedness, and the misery of their children and peoples.

The women who marched on the Union Buildings on 9 August 1956, to fight against the imposition of the pass laws on African women, felt that the men had become too accustomed to carrying "the pass", and therefore lost their sense of outrage at being forced to bear what was described as "a badge of slavery", similar to the numbers the interns at the Nazi concentration camps wore on their prison uniforms.

It may be that the women of Africa have, once again, made the determination that too long a condition of dehumanisation has dulled the sense of rage among the men of Africa, inhibiting their ability to take bold and courageous action to free themselves and their societies from conditions of life inimical to the very concept of human dignity.

It may also be that there is nothing mystical or incapable of comprehension in any of this. After all, everywhere in the world, the most wretched of the male species has the ability and possibility to be a miserable master over others more wretched than he, the women and the children.

He has the power to lay claim to the only slice of bread available to the family. He appropriates to himself the right to decide on how the last fifty cents shall be used, even to the point of deciding that he will expend this to purchase the most noxious alcohol to dull his unbearable pain.

Weakened by hunger, he nevertheless has the superior strength and the power of the traditions of patriarchy to rape, physically abuse and oppress those over whom he claims the powers of guardianship. Powerless in reality, he has the possibility to mediate his anguish of powerlessness by exercising his ghostly power by inflicting further pain on those more powerless than himself.

As judges or your colleagues in the magistracy, the public officers appointed to administer the law, you confront this social reality everyday. And as Francis Bacon said, your profession dictates that you should "interpret law, and not to make law".

But he also said, "Let not judges also be ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws." Indeed, as he said, let not judges forget that "Salus populi suprema lex-the safety of the people is the supreme law" and that "laws, except they be in order to that end, are but things captious (fallacious), and oracles not well inspired."

The constitutional and statutory framework is in place to liberate and empower the most disempowered in our society, the women and the children. We have also acceded to such important international instruments as the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child.

As a government we are committed to promote all the objectives contained in the entirety of the legal provisions that bear on matters relevant to the emancipation of women. We would like to believe that our policies and programmes are focused on the achievement of these objectives, within the context of available resources.

Similarly, we are committed to honour the decisions that our judiciary will hand down as it interprets our laws, as we are obliged to respect the right of the people to decide, in regular, free and fair elections, whether they are convinced that we are the best representatives of their interests.

Our commitment to the construction of a genuine democracy, to the realisation of the objective that the people shall govern, imposes an obligation on us to end the clearly unjust situation of the gross under-representation of women in our judiciary.

I would like to believe that as women judges, you are part of the mass army of women that is leading the charge for the fundamental transformation of our country, our continent and our world. We count on the International Association of Women Judges to do everything it can to empower you with the knowledge and the skills to discharge your responsibilities within the context of your profession.

But we also hope that in the exercise of their function, the women judges will honour and teach their male colleagues to honour the promise made by Judge Motley when she spoke of concern with ethics, community projects, good schools and furthering general welfare, with a world without war and a society without chaos, with a natural gift of devotion to the best interests of humanity.

I wish you success in your deliberations, and a long and successful life to the South African Chapter of the International Association of Women Judges, as well as the International Association itself. I am certain that as women, you have the possibility to define what the 21st century will be.

Certainly it should not and cannot distinguish itself as yet another age characterised by the oppression of women and the impoverishment of the billions. Together we have the collective strength and the obligation to give birth to a new world.

Thank you.

Issued by: The Presidency
8 August 2004