Grappling With Affirmative Action in the Courtroom

South Africa is struggling with a debate over how to transform its legal profession.

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Rwandan former Gen. Faustin Kayumba Nyamwasa, far left, takes the stand in the witness box at a court in Johannesburg, South Africa, Wednesday, June 20, 2012. Nyamwasa, a critic of his former boss Rwandan President Paul Kagame, took the stand as a witness Wednesday, making his first public appearance since he was shot and wounded in Johannesburg in 2010.

JOHANNESBURG – Now that the country has stepped back from the precipice of fiscal disaster, we can shift our collective gaze to the next hot button winter issue: affirmative action. The U.S. Supreme Court heard arguments earlier this month in Schuette v. Coalition to Defend Affirmative Action, a challenge to Michigan's 2006 ballot initiative that resulted in a state constitutional ban on race-based discrimination or preferential treatment in public-university admissions decisions..

Since Proposal 2 took effect, black enrollment plummeted 44 percent at the University of Michigan Law School, the nation's ninth best law school, which enrolled 25 black students, or 6.8 percent of its first-year class, in 2006. That number fell to 14 black students, or 3.9 percent, in 2008, and the school has not enrolled more than 18 black students in its entering class since then

A parallel debate, with implications for the U.S.'s legal system, is raging in South Africa about how to best balance "merit" and "transformation" (i.e. affirmative action) within its legal profession. 

"The term 'merit' is undefined, just as the term 'transformation' is undefined," said Izak Smuts, who resigned from his post as a representative on the country's Judicial Selection Commission this summer after a private, internal spat over how South Africa should diversify its judiciary was leaked to the press. "I think the term 'merit' is offensive," he continued. "If you adopt the approach that transformation is simply a rote replacement of white male judges with black and female judges, but you don't examine whether those you appoint embrace the constitutional values … then on the race and gender model you may be transforming the judiciary, but in reality you may be posing far greater dangers to our new society."

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Few question that the country, like the U.S., has made impressive strides towards transforming the ranks of its lawyers and judges to better reflect the country's demographic makeup. By the time South Africa gained independence in 1994, all but five of the country's 165 judges were white men. A headcount earlier this year found that 100 black men and 49 black women, 71 white men and 21 white women served as judges. The numbers are even more astounding when one looks at the magistrates' courts (the lowest level of the court system which many had argued was the most racist). Indeed, in 1990, of the 829 magistrate judges in South Africa, 811 were white, eleven were Asian, five were of mixed racial descent and two were black. Today, 974 are black and 687 are white, 647 are women and 1014 are men.

In a country of 47 million people where roughly 80 percent are black and 10 percent white, the transformation of the judiciary, for many, is not occurring fast enough. Proponents of hastening the transformative project point to the fact that gender demographics of the Constitutional Court's bench – the country's highest court – are the same in 2013 as they were in 1994, with nine male judges and two female judges. Moreover, the Judicial Selection Committee, the 23-member council responsible for nominating candidates to the president for appointment to the bench, has just six women sitting on it. 

As the debate reached a boiling point this summer, South African law professor Managay Reddi urged her colleagues at an international women judges' conference to voice their concerns over the lack of diversity in the South African legal profession: "[The] inherent conservatism and refusal by some culprits of apartheid in the legal profession, to share in the responsibility of transformation … undeniably accounts for the slow pace of transformation in our society, especially in the legal profession and the judiciary."

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Yet, the state has a legal and moral duty to ensure the bench adequately reflects society. In addition to being "fit and proper" (e.g., merit), the South African Constitution explicitly requires the Judicial Selection Commission to select judicial candidates bearing in mind the need "to reflect broadly the racial and gender composition of South Africa" (e.g. affirmative action). 

But there's a numbers problem. Like Britain, the country has a split bar: attorneys and advocates – the latter from which judicial candidates are chosen. Each year the president selects a handful of advocates who have demonstrated years of outstanding service and confers the prestigious status of senior counsel (or "silk") -- a vestigial practice derived from the exercise of the British monarch's royal prerogative, but nonetheless considered a prerequisite for judicial officers. According to the latest figures, of the countries 473 silks, there were 382 white men, 20 white women, 29 black men and just a paltry four black women (no typos here). There numbers are slightly better, but still a cause for concern, amongst the ranks of general advocates: 1367 were white men, 366 white women, 295 black men and 89 black women.

After much public wrangling, however, the commission appears to be taking heed. In October, it nominated seven women to two men to fill various vacancies on the bench. An independent legal researcher at the Democratic Governance and Rights Unit based at the University of Cape Town commented that the recent nominees "were all intellectually apt, highly competent, experienced and very good orators. I was also pleased by the fact that all these women proved doubters wrong. Those who would argue that there are no capable women would have been put to shame."

Keep you eyes peeled though. The debate over judicial transformation of the South African legal profession will only intensify as the terms of the deputy chief justice and two associate justices on the country's Constitutional Court set to expire in the next two years.

Drew F. Cohen is a law clerk to the chief justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at

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