Women on the Bench: The Role of Female Judges in Fragile States

Since the 1970's women increasingly have made it to the bench. Surprisingly, there seem to be more women judges in post-conflict countries than in consolidated democracies. This project looks at this puzzle and asks if transitions from conflict creates new opportunities for women judges. We know little about women judges in fragile and conflict-affected states in what is still a young field on women in the legal profession. To address this gap, this project has carried out a comparative analysis of the experience of women judges in five countries with different degrees of fragility and variation in the proportion of women judges: Afghanistan, Angola, Guatemala, Haiti, and Uganda. We have investigated two key research questions: (1) What are the main pathways of women judges to the bench? (2) What is the gendered experience of women on the bench? We have also made a preliminary analysis of the impact of a better gender balance on the bench on judicial outcomes. Our findings include some of the following: First, merit is key to ensuring women judges’ career prospects in the countries studied. Second, formal rules, including which eliminate gender-based barriers for women judges are important (notably in Angola and Haiti). Third, at the same time, how informal rules and networks operate in contexts of fragility and conflict helps to explain differences in the experience of male and female judges. When political loyalties and patronage politics prevail over merit, women face greater challenges to access judicial office. In Angola and Uganda party political connections are important for women judges’ appointment. Gender-discriminatory social (and sometimes religious) norms remain hugely problematic for women judges as in Afghanistan. By contrast, professional and social networks were found to be important for women judges as in Uganda. Fourth, project findings confirmed that political and institutional fragility can be especially detrimental for justice provision generally, and women judges specifically. The Taliban takeover in Afghanistan forced most women judges to flee the country. Extreme state fragility in Haiti means judges cannot carry out basic judicial functions. Fifth, and relatedly, our observation of the gendered experience of judicial office in conditions of violence and insecurity advances the knowledge of how these challenges undermine judicial independence and the rule of law. Societal violence and security issues are especially challenging for women judges in Afghanistan, Haiti, and Guatemala. In all countries women judges face security and harassment challenges, including sexual harassment or threats from both colleagues and clients. Fragility and conflict further amplifies these risks for women judges. Finally, intersecting inequalities affect women’s experience on the bench, relating to class, ethnicity, minority- and gender-based discrimination. Ethnicity and class for instance is important in Guatemala. Fieldwork was carried out in all five countries. Data included review of the literature and interviews with key informants. We especially note the Haiti study, where individual interviews included over 70 judges and other legal personnel. This is the only existing collection of interviews with Haitian judges, analysed in a doctoral dissertation that provides novel insights on judges’ experience in a failed state. The research has contributed to academic and theoretical scholarship on women judges. It has also contributed to policy and practitioner knowledge on gender and justice in fragile and conflict affected settings. The empirically based analysis of contributes to new knowledge on gender and judicial office, and implications for judicial outcomes in fragile states. This also provides an analytical basis for cross-regional research on the experience and impact of women in the courts. The project has policy implications for legal professionals concerned with gender justice; for donors promoting gender equity in the judicial sector; and for informing the role of international aid to judicial reform in fragile states. Project findings have been communicated through meetings and workshops with judges (Angola), police (Haiti), civil society and women’s organisations (Guatemala) and policy briefs (Afghanistan, Haiti), in addition to journal articles pitched in high-level academic journals. A Special Issue on Women Judges in Fragile States is in the publication process with a top journal in the field. We expect it to be published late 2023. The project has been carried out by an interdisciplinary research team based at the Chr. Michelsen Institute (Bergen), the Univ. of Bergen, and the Overseas Development Institute (London) in collaboration with institutional partners in Mexico and Afghanistan. The project builds on previous work on courts, justice, and gender undertaken by the core research team and was designed to further strengthen competence in this growing academic & policy field.

Contributions to the scholarship • Contribution to academic knowledge on the gendered experience of judicial office, analysing women’s access to the bench, and career prospects, including appointment to leadership positions. • Contribution to academic knowledge on barriers for women to access decision-making roles, with a focus on judicial office which remains a key gap in the literature on women’s political empowerment. • Contribution to the academic knowledge on the gendered experience of judicial office in fragile and conflict affected states, and the impact of political instability, insecurity and violence on gender justice, rule of law and inclusive governance. • Interdisciplinary and cross regional analysis of the gendered experience of judicial office Contributions to policy and practice • Engagement with different relevant communities of practice in country and cross regionally, to share findings and contribute to policy and practitioner thinking on this. This includes: o Learning from and sharing findings with women judges and other members of the judicial branch and legal profession in country o Learning from and sharing findings with professional bodies at the national and global levels. This includes engagement with national associations of women judges (Uganda), the International Association of Women Judges, national law societies. o Learning from and sharing findings with women lawyers’ associations. • Dissemination activities attended by academics and practitioners. Potential outcomes • Findings will continue to inform academic and policy oriented publications and strategic approaches to judicial reform and rule of law support in fragile and conflict affected settings. • Ongoing activities and publications includes informing policy makers and practitioners on investing more in supporting women judges and gender equity on the bench in fragile and conflict affected settings, as well as other contexts in order to advance objectives of gender equality, gender-transformative rule of law and inclusive governance • Findings will contribute to informing future research on women judges, the impact of improved gender equality on the bench, and future research objectives of looking at women prosecutors. • Findings and dissemination activities will continue to contribute to critical thinking on how violence and insecurity undermines gender equality and women’s rights. • Selected global policy areas for which project findings are relevant: o Achievement of the Sustainable Development Goals, specifically: SDG 5 on gender equality and violence against women and girls; SDG 16 on sustainable peace, inclusive societies, and access to justice for all. o Achievement of objectives of the Women, Peace and Security agenda, with a focus on women’s participation and access to decision-making roles. o Gender responsive peacebuilding, as a component of the global peacebuilding agenda.

Since the 1970s, women increasingly have made it to the bench. Surprisingly, the proportion of women judges is generally higher in post-conflict countries than in well-established western democracies. This project investigates this puzzle by hypothesising that political rupture can provide women with opportunity structures that favour their access to judicial power. A small but growing literature on the role of women in the legal profession has paid virtually no attention to women judges in post-conflict and fragile states. The proposed research has primary relevance to intellectual and policy debates on gender and justice in the south/developing world, but carries a broader theoretical potential. By establishing an empirically based analysis of women's access to judicial office and their experience on the bench, and drawing out the implications for judicial outcomes in fragile states, the project provides an analytical basis for cross-regional research on the nature and impact of women in the courts. The project has policy implications for legal professionals who are concerned with gender balance and gender justice, for donors promoting gender equity in the judicial sector, and for the management of expectations generated by aid to judicial reform in fragile states. The project will be carried out by an interdisciplinary research team based at the Chr. Michelsen Institute (CMI, Bergen), the University of Bergen, and the Overseas Development Institute (ODI, London) in collaboration with institutional partners (Mexico, Afghanistan) to cover five countries in Sub-Saharan Africa (Angola and Uganda), Latin America (Guatemala and Haiti) and Southwest Asia (Afghanistan). The project builds on previous work on courts, justice, and gender undertaken by the core research team and is designed to further strengthen competence in this rapidly expanding academic and policy field.