Access to justice is a tenet of rule of law. Rule of law is a system of neutral laws that are equally enforced and independently adjudicated. Central requirements of the rule of law are good governance and a functioning justice system that carries out its duties fairly, without bias or discrimination and which is accessible to all.
States are obliged to enact all necessary steps to provide fair, effective, transparent, non-discriminatory and accountable services that promote access to justice for everyone. The judicial system must be independent and impartial.
Judicial independence does not always translate to impartial judgments. We are all plagued by unconscious or implicit biases unknown even to ourselves. However judge bias is a serious barrier to access to justice.
Gendered perspective on access to justice
Legislation alone has little impact on improving the lives of women. To achieve substantive gender equality, all forms of discrimination must be eliminated and specific measures should be adopted to redress the disadvantages and power imbalances that women experience.
It is essential for judges and legal practitioners, both men and women, undergo training that is focused on capacity building to realize and address their bias. In this way, it is not based solely on raising awareness, but also offers specific tools that help people make better decisions.
The presence of women judges in positions that were historically exclusively reserved for men is an indication of a more transparent and inclusive judiciary. Women judges contribute far more to justice than improving its appearance: they also contribute significantly to the quality of decision-making, and thus to the quality of justice itself. However women judges are still prone to bias.
Example of judge bias in South Africa
In South Africa 2 out of 3 women experience gender based violence. Durban Magistrate Kholeka Bodlani has shown gender bias in over 18 cases. In one case, she gave a father who raped his own daughter a 5 year prison sentence, saying she should “show mercy to a loving father”. In another bizarre conclusion, Bodlani set free a man accused of raping a teenage girl because he carried a bag, styled his hair and did the washing – which, the magistrate said, meant he must be gay and ‘not interested in women’.” She has also interrogated a young woman who’d allegedly been raped by a man she referred to as “uncle”. Bodlani asked the girl: “When uncle was finished what was he doing, how did you feel? Was [he] rough, vigorous or forceful when penetrating you, or was he soft?” Bodlani’s cases have been sent for review but she is still presiding over cases.
South Africa is the most unequal country in the world. Judge bias in South Africa subverts access to justice and adds to the existing inequality. The judicial system must acknowledge this inequality and redress this through the fair, transparent and non-discriminatory administration of justice.
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